In April, on the same day that the jury trial for Dominion Voting Systems’ defamation lawsuit against Fox News was set to begin, the two companies reached a $787 million settlement and the whole thing more or less went away. Under the agreement, Fox News agreed to issue a statement that was among the most non-apology apologies in history: “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.” Other than that, and a check amounting to about 5% of Fox News’ annual revenue, there was no penalty.
However, it was clear Fox Corp. owner Rupert Murdoch did not like writing that check. He was even more upset about having the company’s dirty laundry paraded in public by arrogant pundits who openly admitted they knew their shows were riddled with lies. So one week later, Fox News canned Tucker Carlson, the network’s most popular screaming jackass. Things at Fox then went back to the same level of lying as always, while Murdoch fumed about which racist to put into Carlson’s old time slot.
However, just because Fox News has made its way past one lawsuit doesn’t mean they don’t have more on their slate. In particular, the “fair and balanced” outlet is facing another lawsuit directly tied to the now-departed Carlson, one that could ultimately have more impact on Fox Corp. (and on the news media in general) than the suit involving Dominion. Because this one goes right to the core of the question of whether, in the age of conspiracy, libel still counts as libel.
The Jan. 6, 2021, insurrection wasn’t even over before Donald Trump supporters started cranking out the conspiracy theories. According to those who regularly took their predictions from an account named “Q,” the people crashing through the doors and windows of the Capitol carrying Trump signs and Trump flags while wearing Trump hats and Trump shirts couldn’t possibly be Trump supporters. Instead, as the conspirators tell it, the insurrectionists had to be the dreaded undercover antifa mob.
Maybe they had been bused in by George Soros. Maybe they had risen up from underground pizza tunnels. Or maybe they were members of the “deep state” that somehow managed to still be running everything, even after four years in which Trump was supposedly engaged in full-time swamp draining.
One particularly sticky conspiracy theory, which sprung up on that very first day and has persisted ever since, is that there may have actually been some Trump supporters among those who flattened police and chased the Congress out of its halls. But that was only because those wonderful MAGA faithful were led to their wrongdoing, entrapped by secret agents of the U.S. government. Moles working for the FBI, CIA, NSA or some other three letter agency, who had been slipped into their ranks, were to blame.
Within days, what had been vague accusations found a face: that of former Marine Ray Epps.
Epps, who lived in Arizona, had traveled to Washington for the Jan. 6 escapades, like tens of thousands of others, in response to Trump’s invite to be there, because “will be wild.” As a member of the Arizona Oath Keepers militia, Epps was a particularly enthusiastic Trump proponent who arrived in Washington on Jan. 5 to participate in warm-up events.
It was at one these events on Jan. 5 where Epps was recorded shouting that people should go into the Capitol the next day. Someone from the crowd responded with a boo and called Epps a “federal agent.” After the insurrection, that clip appeared on a number of obscure right-wing websites, then it made its way to both Tucker Carlson’s and Laura Ingraham’s shows on Fox News.
Carlson, in particular, became a big promoter of the Epps-as-deep-state-agent conspiracy. He made the claim repeatedly, and frequently while showing a picture of Epps. He asked his guests to opine on the theory, and solicited agreement with his claims from Sen. Ted Cruz along with Reps. Marjorie Taylor Greene and Matt Gaetz.
It didn’t matter that on Jan. 6, Epps didn’t actually go into the Capitol and was filmed telling others to stay back. It didn’t matter that the FBI issued a statement saying that he had never been an agent or source. It didn’t matter that Epps denied it all. Carlson went on air day after day, citing the fact that Epps had not been arrested for his actions on Jan. 6 as “proof” that he was an inside man. At this point, there is no public evidence Epps set foot in the Capitol on that day, or that he engaged with police.
Epps was actually brought in for questioning by the FBI after Jan.6, but wasn’t charged—which Carlson claimed was only more evidence of his involvement.
By the time CBS interviewed Epps in April 2023, he had been forced to flee his home in Arizona and was on the road, moving from place to place in an RV. However, Epps did find time to file a cease and desist letter asking that Fox News and Carlson stop making false claims and issue an apology.
“For years, Tucker Carlson and Fox News have targeted Ray Epps with malicious lies about his involvement in the events of January 6th. Fox News has chosen to promote fantasy over fact, exposing Ray and Robyn Epps to harassment, intimidation, and abuse. It is clear that Mr. Carlson and Fox News are uninterested in speaking the truth to their viewers.”
However, as The New York Times reports, Carlson never got around to making that apology and, until the point when Fox fired him, never stopped making false claims against Epps. In fact, Epps was featured in at least 20 episodes of Carlson’s program, which was then the most-watched show in cable news.
Now, Epps’ attorneys are moving on to step two: sue Fox Corp. for defamation.
Unlike the Dominion Voting Systems case, where Carlson’s messages to other Fox employees made it clear that they were all conspiring to lie (which then made it difficult to see how a jury could say anything other than Extremely Guilty), Epps has no behind-the-scenes info to back his case.
What he does have is the fact that he’s not a public figure. If the subject of a libel suit is a public figure, then the plaintiff has to prove that the defendant—Fox Corp. and Carlson, in this case—acted with “actual malice.” That means they knew they were lying and continued to lie, specifically to cause harm. That kind of claim represents fairly heavy lifting, which is why you rarely see politicians or other public figures lodging such lawsuits, no matter what outrageous claims have been made (and why you see thin-skinned figures like Clarence Thomas, who wants everyone to stop talking about how open he is to pure bribery, trying to lighten that requirement).
As a private figure, Epps only has to meet the libel standards of wherever the suit gets filed. These standards can vary state by state, but in Arizona the test of the defendant is: “he (a) knows that the statement is false and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.” The “or” in that statement is doing some heavy lifting. Epps’ attorneys don’t have to hit all of these items; just one will do.
Since it’s clear that Carlson never made any effort to determine the truth of these matters (including ignoring statements from Epps and the FBI), and it’s clear that the statements could be expected to—and did—put Epps in danger, this should be a simple case. However, unlike Dominion, Epps doesn’t have unlimited money to pursue the case. Fox News may mount the defense that many wealthy defendants, including Trump, have taken on so many occasions: keep appealing until the lawsuit goes away.
It’s not even clear what kind of dollar figure Epps can put on his claims. It’s unlikely to be enough to affect Murdoch’s supply of whatever keeps the 92-year-old ticking. Still, a reminder that making s--- up about ordinary people—even if those ordinary people are Trump supporters who marched around making angry faces on Jan. 6—is a bad and potentially costly thing could have interesting results.
It wouldn’t hurt to see Fox News take one last kick in the shin for leaving Carlson’s unfiltered assholery on the air for as long as it did. It was just last month that the network had to shell out $12 million for “bigotry, misogyny and bullying” behind the scenes at Carlson’s show. May this be a wound that never closes.
While Fox Corp. is handling this, its attorneys can stay in shape for the big show: the $2.7 billion defamation suit filed against Fox by voting machine manufacturer Smartmatic, another case that will threaten to bring all those private messages on to the public stage.
Maybe Smartmatic will settle, as Dominion did. But we can hope not.
And maybe Ray Epps will find a building that he really should storm. It’s in New York. On the Avenue of the Americas. Just open Google Maps and check the directions to Fox News headquarters.