Thread by @KlasfeldReports

Fox News wants to dismiss a case brought by ex-Playboy model Karen McDougal, who says Tucker Carlson defamed her by calling it "undisputed" that she extorted Trump.

Fox claims that is protected hyperbole.

Live-tweet of the hearing ahead.

Background: courthousenews.com/playboy-model-…

From Fox's motion to dismiss from March:

The network claims that Tucker's statement cannot “reasonably [be] interpreted as stating actual facts.”

McDougal's legal team retorted that Tucker called it a "'fact,' indeed 'undisputed fact,' that plaintiff extorted Trump."

"Defendant should not be allowed to rewrite history," they wrote.

We are about to begin.

U.S. District Judge Mary Kay Vyskocil, a Trump-appointee presiding over the case, starts things off:

“Obviously, we’re still in the midst of the Covid pandemic,” and therefore conducting the hearing via telephone.

She reminds the press and public to mute their phones.

Vyskocil discloses that she knows Fox’s lawyer Shawn Regan well, as both are involved with the Federal Bar Council.

She says it does not affect her impartiality.

Fox's attorney Erin Murphy, for Kirkland & Ellis, is up first, arguing that there are no actionable statements or actual malice.

She wants to start with the former argument.

Judge Vyskocil questions Fox's counsel over the argument that "no reasonable person" could view Tucker's statements as factual.

"Yet he began the piece by saying, 'Remember the facts of the story. These are undisputed.'" the judge notes. "Did he not?"

After initially saying, "Sure," Murphy pivots and draws a distinction and says the segment began earlier, with Tucker talking about hypothetical scenarios.

Fox's attorney Murphy:

"It's a commentary show. It's a show that markets itself... as opinion and spirited debate. That context matters."

Tucker's allegedly defamatory remarks quoted in the complaint:

“Remember the facts of the story; these are undisputed. Two women [one of whom was McDougal] approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money."

McDougal says she never even approached Trump, let alone threatened him, facts which came out during the National Enquirer hush-money scandal and Michael Cohen's prosecution.

Judge Vyskocil notes that McDougal seems to be pleading, at minimum, reckless disregard for the truth.

Judge Vyskocil presses Fox's attorney on a recent Second Circuit precedent: Sarah Palin's lawsuit against the New York Times over an editorial, which was revived last summer.

From Aug. 2019: courthousenews.com/sarah-palin-de…

McDougal's legal team has cited the Palin precedent to show that plausible allegations of falsity and malice can suffice to state a defamation claim, in this district.

McDougal's attorney Eric Bernstein, from the firm David Resnick & Associates, begins his arguments by conceding that his client is a limited purpose public figure.

The judge asks if it is relevant that Tucker did not mention Ms. McDougal by name.

Bernstein responds that Tucker flashed McDougal's picture when making those statements.

“They know who she is," Bernstein says. "They know she is a Playmate model.”

"[Tucker] was definitely making the connection to the viewer and the listener," Bernstein said, referring to the woman in the picture and McDougal.

Judge quotes Tucker earlier in the segment saying: “We’re going to start by stipulating that everything that Michael Cohen told the feds is absolutely true.”

This is the preamble Fox hangs on to cast Tucker's statements as hypothetical.

Bernstein responds that Tucker "shifted gears" later when he said: “Remember the facts of the story; these are undisputed.”

This was evident even in Tucker's demeanor and suddenly serious tone, he adds.

"It’s a beat change, if you’re an actor," Bernstein adds.

Judge Vyskocil interjects with Tucker's hedge in the transcript: “Now that *sounds* like a classic case of extortion."

Bernstein says the underlying narrative was false: "This story is being created from the air, on no factual basis."

Bernstein draws a distinction at the point where Tucker said "Remember the facts of the story": "When he makes that statement, he is shifting gears and turning into factual reporter."

He says that Tucker made those statements because he is biased and has an agenda.

The judge notes that Supreme Court precedent requires more than bias or agenda to show actual malice.

Judge: "You agree with me that malice is not the equivalent of ill-will or bias."

Bernstein: "Yes. Of course."

McDougal's attorney Bernstein: "We believe there was a predetermined narrative... It was a tumultuous time for the country."

At the very least, Bernstein says, there was a "positive, symbiotic" relationship between Tucker and Trump, citing this presidential book-promo-by-tweet.

To help Trump, Bernstein said, Tucker "tried to destroy the character and reputation" of Karen McDougal in the midst of the hush-money scandal.

Judge Vyskocil appears skeptical that Tucker knew his statements about the "facts" of Karen McDougal's case were false when he made them.

To establish motive in attacking the president's perceived enemies, Bernstein responds by citing Trump plugging Tucker: "That's not a typical occurrence, for anyone to get congratulatory tweets for the president concerning a book."

"Are you sure about that?" the judge responds.

Context: Anti-corruption watchdogs denounce Trump's habitual plugging and promotion of the books and products of his family or perceived allies. citizensforethics.org/misuse-public-…

Bernstein, McDougal's attorney, notes that Tucker never retracted or apologized for the story.

Judge Vyskocil says that she will take the matter under submission.

The hearing ends without a ruling.