This Article examines how defamation law promotes a culture of hyperbole and exaggeration on television news talk shows at the expense of more meaningful dialogue and discourse. The Article uses the 2020 federal court rulings in McDougal v. Fox News Network, LLC and Herring Networks, Inc. v. Maddow as analytical springboards to address this problem. In both cases, judges dismissed defamation claims stemming from comments made by well-known talk-show hosts—Fox News’s Tucker Carlson in McDougal and MSNBC’s Rachel Maddow in Herring Networks—on the ground that their remarks would not be understood by viewers as factual assertions. In concluding that Carlson’s and Maddow’s statements amounted to nonactionable expressions of opinion, the judges evaluated the nature of news talk shows and reasoned that they constitute venues where viewers today expect bombast and bluster. While the outcomes are laudable for safeguarding political opinions, they are highly problematic for a democratic society because they incentivize hyperbole over rational discussion of political topics that affect voters’ decisions. In brief, Carlson and Maddow are allowed to cast aspersions and then to claim in their defense that no one would believe them as factual assertions. The more hosts ratchet up the level of rhetoric on their shows and cultivate reputations for bloviation, the more likely they are to successfully defend against defamation lawsuits. This Article argues that courts in future defamation cases should consider news talk shows on a program-by-program basis rather than continue to flesh out a nascent, genre-based presumption that news talk shows as a whole trade in protected opinions.
Privileging Opinion, Denigrating Discourse: How the Law of Defamation Incentivizes News Talk-Show Hyperbole,
2020 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol2020/iss1/3