A federal judge has dismissed Ray Epps’ defamation case against Fox News.

In case you missed it or have forgotten, Epps sued Fox News for defamation after Tucker Carlson, Fox News and other right-wingers all but destroyed Epps’ life with false claims that he was part of an FBI “false flag” operation that was supposedly the real Jan. 6 culprit. Epps said he went to Washington on Jan. 6 because he had been convinced by Fox that the election had been stolen. Then this happened, via The New York Times:

After the unfounded accusations about Mr. Epps were aired on Mr. Carlson’s show, they quickly spread to online communities of Trump supporters and to the political world as Republicans in Congress tried to link Mr. Epps to a fictitious conspiracy theory that he was involved in planning the Jan. 6 attack. They included Senator Ted Cruz of Texas and Representative Thomas Massie of Kentucky, both of whom made Mr. Epps — a two-time Trump voter — a focus of concern at public hearings.

The publicity had damaging consequences for Mr. Epps and his wife, Robyn, who received numerous death threats and were forced to sell their five-acre ranch and wedding business in Arizona and move into a 350-square-foot mobile home parked at a remote trailer park in the mountains of Utah. Online retailers began selling T-shirts that said “Arrest Ray Epps.” Some people even recorded songs about him and posted them on YouTube, the complaint states, adding that he had been reduced “into a character in a cartoonish conspiracy theory.”

The order dismissing Epps’ suit was signed the day before Thanksgiving. From The New York Times:

Ruling from the bench in Federal District Court in Wilmington, Del., the judge, Jennifer L. Hall, dismissed the defamation claims by the man, Ray Epps. He and his lawyers had failed to prove that Mr. Carlson had acted with “actual malice,” the judge said.

…

Fox fought the defamation claims by arguing in court papers that they were “a direct attack on the First Amendment.” Moreover, the lawyers — among them, Patrick F. Philbin, who once served as Mr. Trump’s deputy White House counsel — maintained that Mr. Carlson, in his on-air remarks about Mr. Epps, had not been acting with malice but was merely offering opinions.

Judge Hall agreed with much of this, noting that guests whom Mr. Carlson brought on his show to discuss Mr. Epps — including the right-wing journalist Darren Beattie — were simply airing their “own commentary and opinions.”

The judge also noted that on some of his broadcasts, Mr. Carlson included Mr. Epps’s denial that he was serving as a government asset during the Capitol attack.

The decision left Mr. Epps with limited options to seek accountability for what his lawyers have described as a damaging episode in his life.

Judge Hall was nominated by President Joe Biden, in case you’re wondering.

As a non-lawyer, I am not sure what “limited options” Epps is now left with. The judge’s order suggests he could try to amend the complaint but my guess is that would require new information showing Carlson and Fox knew lies were being aired, as happened in the Dominion defamation lawsuit.

Fox’s defense in this case was not that it vetted the disinformation it peddled but that it had a right to peddle it. It's the same defense the "news" outlet used in the Dominion case.

From The Washington Post:

Fox, in its defense against the lawsuit, argued that its on-air hosts were entitled by the protections of the First Amendment to raise questions about why Epps had not been charged. The network also argued that hosts had issued protected opinions about Epps rather than factual assertions, an argument that was also made to defend against the defamation lawsuit filed against it by Dominion Voting Systems over its coverage of the 2020 election.

I would bet that Fox knew Carlson was pushing disinformation. You may recall former Tucker Carlson Tonight producer Abby Grossberg spoke on MSNBC about being pressured to find someone like Ray Epps for the show:

“I found it difficult to cover the kind of stories that they wanted me to cover,” Grossberg said. She cited January 6th as an example. “Tucker was very set on finding an FBI person who was implanted in the crowd and spinning this conspiracy that they were ultimately the ones responsible for the Capitol attack,” she added. She went on to explain that she could find no evidence for such a thing, that an attorney for one of the Proud Boys had told her, twice, "There is no conspiracy, get away from this stuff. This is dangerous, tell Tucker to stop.” 

"The response was, 'Well, find somebody else. Tucker is really intent on this.'"

Grossberg had also sued Fox News, claiming she had been coerced into providing false testimony in the Dominion case and alleging she had received sexual, antisemitic and misogynistic harassment while working on Carlson’s show. She also had at least 90 tapes.

She settled with Fox News for $12 million on June 30, 2023, just 10 days before Epps filed his suit. I am guessing that Grossberg's settlement requires that she not speak about the Epps case nor release the tapes (though she seems to have turned them over to special counsel Jack Smith), thus depriving the Epps case of evidence.

I have long believed that Carlson's still unexplained firing, on April 24, 2023, was over the Epps case. The Los Angeles Times reported, “Carlson’s exit is related to the discrimination lawsuit filed by Abby Grossberg,” which does not necessarily point to Epps. But, as per Media Matters, the Times also reported that Rupert Murdoch was “said to be concerned” about Carlson’s coverage of Jan. 6. Also, Epps’ lawyer had threatened Carlson with a defamation lawsuit about a month before he was fired.

If I’m right, then it sure looks like Fox’s $12 million settlement with Grossberg helped the network avoid another, maybe bigger payout to Epps.

I’ll be keeping an eye out for further analysis and/or developments in this case.

Below, you can watch CBS News’ 60 Minutes April 23, 2023 report (posted to YouTube on April 24, 2023) on how Epps became the target of a right-wing conspiracy theory.

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