Just months after a judge dismissed Nina Jankowicz’s much-hyped defamation lawsuit against Fox, a federal district court judge in Delaware, Judge Jennifer L. Hall, has dismissed Ray Epps’s defamation lawsuit. The Jan. 6 rioter said the network falsely identified him as an FBI informant.
U.S. District Court Judge Jennifer L. Hall granted Fox News’ motion to dismiss the suit.
In the original complaint, Epps made a defamation per se claim and a false light claim.
Epps and his wife have clearly been through a nightmare of threats and innuendo. However, this public controversy was discussed by various networks and the Jan. 6th Committee. It was also a matter of legitimate public debate and commentary, with people on both sides expressing their views on the evidence and underlying allegations.
The problem for the court was trying to draw a line when coverage and commentary becomes defamation on such subjects. The chilling effect on free speech can be immense. The Supreme Court has repeatedly ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. The status imposes the higher standard first imposed in New York Times v. Sullivan for public officials, requiring a showing of “actual malice” where media had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.
Now based in Utah, Epps alleged his life was upended after former Fox host Tucker Carlson repeatedly described him as a federal agent who helped instigate the attack on the Capitol, which was an attempt to stop the certification of the election of Joe Biden.
The breathing space cuts both ways. In reporting on the dismissal of the Epps lawsuit, it is notable that the Associated Press is still referring to Jan. 6 as an “insurrection” rather than a riot. Curiously, when you hit the link on “insurrection,” it goes to an article on the dropping of the Smith case, which notably did not charge Trump or anyone else with insurrection or even incitement. Yet, the AP is still reporting “the insurrection” as a fact.
The dismissal of Jankowicz directly addressed the dangers of using the courts to try to silence your critics. The case backfired on Jankowicz in prompting a court to expressly state that what she has been advocating is censorship. After holding that people are allowed to criticize Jankowicz as protected opinion, the court added:
“I agree that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true. On the contrary … censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications.
“The Disinformation Governance Board was formed precisely to examine citizens’ speech and, in coordination with the private sector, identify ‘misinformation,’ ‘disinformation,’ and ‘malinformation.’ … that objective is fairly characterized as a form of censorship.”
Jankowicz previously solicited significant contributions on the promise of this ill-conceived lawsuit. Nevertheless, Jankowicz is still being touted as a hero and enlisted to explain how to combat “disinformation.”
The calls for greater censorship are likely to only increase after the election. However, we have seen figures like Hillary Clinton call on Europeans to force the censorship of Americans.