The line between news and commentary has arguably become more blurred in recent decades. This has implications for libel law, which also reflects the shifting media landscape. A recent lawsuit involving Tucker Carlson illustrates the problem.

Carlson is being sued for defamation by Karen McDougal for a segment in which she claims Carlson accused her of extortion.  She is one of two women that we know of who were paid off to remain silent about affairs with Trump. Here is the money quote from Carlson:

“Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now that sounds like a classic case of extortion.”

For background, libel cases are hard to prove in the US. You need to demonstrate that statements were made in public that are claims to facts, that are factually wrong, where the person making the statement knew they were wrong or had a disregard for the truth, that there was malice of intent, and that actual harm resulted. For some statements you don’t have to prove harm, they are “libel per se,” such as accusing someone of pedophilia. The harm is taken for granted. If the target of the alleged defamation is a public figure, then the burden of proof is even higher.

At issue here are whether Carlson’s statements were presented as facts or opinion. Opinion is completely protected free speech, and cannot be defamatory legally. The first part of Carlson’s statement above is stated as simple fact. The second part (“that sounds like”) seems to be his analysis or opinion. Forgetting the other aspects of the defamation standard for now, this question seems to be the crux of the case. Was Carlson making a factual claim he knew to be untrue, or without concern for whether or not it was true? The defamation standard requires more than just being wrong.

Here is where the case may have broader implications, especially for news outlets. The plaintiffs lawyers are arguing that in this segment Carlson was stating facts, and so should be held to a reasonable standard for fact-checking and honesty. They point to this statement Carlson made during the segment, “Remember the facts of the story; these are undisputed.” They also cite his serious tone.

Carlson’s lawyers state that Tucker Carlson Tonight is a commentary show, during which Carlson often speaks in hypotheticals, says things “for the sake of argument,” and is not reporting facts. He may rely on secondary sources without investigating whether those sources are accurate. That all may be true. But his lawyers also claim that his audience generally understands this to be the case. I’m not so sure. I guess that is what it comes down to.

This is all reminiscent of the recent Alex Jones Infowars case, in which Jones was successfully sued by parents of children who were killed in the Sandy Hook massacre. Lawyers for Jones argued that his statements, that the parents were just crisis actors and no kids were killed, was just “rhetorical hyperbole”. It was harder to argue that his audience understood this to be the case, since the suit was based largely on the fact that some of those audience members were harassing the parents based on their belief that what Jones said was true.

Forget what you think about Jones or Carlson, these cases are tricky and important because they are right at the crosshairs of balancing protecting free speech and protecting people from legitimate defamation. Also, full disclosure, I have been the target of frivolous defamation lawsuits just for stating what was clearly my opinion, and so I am sensitive to this issue. I cannot do what I do without robust First Amendment protections for free speech (even that is not enough, but that’s a separate issue).

At the same time, I am a science communicator and skeptical activist. The truth matters to me, as do high standards of journalism and the importance of critical thinking. All of these things are also critically important for any democracy to function. We seem to be facing a crisis of democracy partly brought on by “fake news” and also the accusation of “fake news” in order to dismiss real news and water down public faith in the media. Various types of trolling have poisoned public discourse. So destructive is all this that our enemies have hit upon it as an effective way to attack our democracy.

The net result of all this is to make it more difficult to know what information is reliable and what is biased, or even crafted to deceive and influence. This is why I am no fan of shows like Tucker Carlson or Infowars. They blur the lines between news and commentary, facts and opinion. They pretend as if they are stating facts, but then hide behind the notion that this is all performance art or all hypothetical. That doesn’t mean it isn’t a legitimate defense against defamation, because otherwise all genuine commentary is at risk. But it does mean we need to figure out how to avoid this trap – allowing commentary and performance to pretend to be facts just enough to deceive the public, but not enough to be held to reasonable standards for reporting facts (such as libel law).

Carlson’s defense might hinge on a critical claim of his lawyers – that his audience generally understands that what he says is not necessarily factually correct and is meant as hypothetical facts for the purpose of “thinking hard” about these issues. That in itself is a factual claim that, it seems, can be resolved. I don’t know if the case will go there, but McDougal’s lawyers might want to consider presenting evidence that those who watch Tucker Carlson do take what he says as statements of fact.

I don’t know if granular enough information exists, but there is evidence that people who watch Fox News are less informed about what is going on in the world than people who watch no news at all. That means they are being misinformed, which means they are taking some of the “hypotheticals” they are seeing as facts.

I don’t know what the answer to all this is, but it does seem that it might be useful to force media outlets to unambiguously label news as news and commentary as commentary, including disclaimers about what that means. But whatever steps are taken, we need good data on their effects. Sometimes interventions like this backfire. But at least we will know what standards apply.