First Amendment experts say Epps has a viable case for defamation, one reminiscent of the lawsuit the network recently settled with Dominion Voting Systems for $US787.5 million ($1.1 billion), a case centred on numerous examples of false statements made on Fox News programs over an extended period.

If Epps moves forward, the case would be another legal complication and reputational stain for the conservative network, which faces a growing list of lawsuits related to its airing of false claims about the 2020 election and its aftermath. They include a $US2.7 billion suit from a second voting technology company, Smartmatic, and two separate claims by Fox shareholders. Another lawsuit from a former producer for Carlson, which Fox settled on June 30 for $US12 million, alleged that he condoned and encouraged a toxic workplace.

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A defamation suit by Epps would be further evidence of how Carlson continues to pose a headache for Fox well after the network relieved him of his anchoring duties. Fox executives took him off the air after his text messages, which became public as part of the Dominion suit, revealed he had expressed hateful and racist sentiments.

On the air, his behaviour had begun to grate on senior Fox executives including Lachlan Murdoch, CEO of Fox Corp, who disliked Carlson’s continued promotion of conspiracy theories about the January 6 riots, which had drawn rebukes from Republicans including Senator Mitch McConnell. On the day he was informed his show was cancelled, Carlson had been planning to run another segment on Epps, according to a tweet from an authorised biographer of the host, Chadwick Moore.

By design, defamation law tilts heavily in the news media’s favour, making it difficult to be found liable for defaming public figures – who are often targets of media reporting – unless there is proof that the defendants either knew what they said was false or acted with a reckless disregard for the truth. Epps would be able to argue that Carlson repeatedly uttered statements about him from October 2021 to March 2023 that were baseless, or easily explained or contradicted by the facts reported in numerous news reports.

“His challenge is to get a judge, if he files the suit, to say this was so inherently, bizarrely improbable that only a reckless person would put it into circulation,” said Rodney Smolla, president of Vermont Law School and a defamation expert who consulted for Dominion during its case against Fox News.

“No case is easy,” Smolla added, “but this one is certainly, in my view, viable”.

The attacks against Epps began circulating online after a video was taken on the night before the Capitol attack. It shows Epps at a pro-Trump demonstration on a Washington street shouting that he planned to march to the Capitol and enter. After pausing for a few seconds, he adds, “Peacefully.” Some in the crowd begin chanting “Fed! Fed! Fed!” at him, implying he was a government agent trying to goad Trump supporters into committing a crime.

Another video, taken on January 6, also shows Epps encouraging people to march toward the Capitol. Then he bends down to whisper in a man’s ear moments before the man and rioters overcome police officers and breach the security perimeter around the Capitol grounds. It is difficult to hear what Epps says in the video.

Law enforcement immediately took note of Epps’ suspicious behaviour and put a picture of him on an online wanted list. Epps has said he called the FBI’s National Threat Operations Centre shortly after the alert went up, and his phone records show he spoke to agents there for nearly an hour.

When the bureau removed him from the list — a few months after agents formally interviewed him and his son in spring 2021 — Carlson and others claimed that Epps’ disappearance and the lack of criminal charges meant that the government was protecting him.

On his programs, Carlson claimed that Epps was a liar and demanded that he be arrested. In one segment that ran shortly before Fox News cancelled Carlson’s show in April, he showed viewers an image of the FedEx logo that had been altered to say “FedEpps.”

The fact that Epps has not been charged is largely in keeping with hundreds, if not thousands, of individual decisions that the Justice Department has made in its vast investigation of the Capitol attack.

Only a handful of people who pushed past barriers at the Capitol but never went inside the building have faced charges, and no defendants have been charged with incitement. Incitement charges against Epps would be particularly hard to prove given that he ultimately sought to de-escalate the crowd, and his most vocal encouragement to enter the building took place on the night before the attack, making it almost impossible to show his words had an immediate effect.

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What Epps whispered to that man on the day of the attack has been answered three separate times: in an interview the FBI conducted with the man Epps had talked to, Ryan Samsel; in Epps’ own interview with authorities; and in a podcast interview with a co-defendant in Samsel’s case. All three said Epps had urged Samsel to calm down.

“He came up to me and he said, ‘Dude’ – his entire words were ‘Relax, the cops are doing their job,’” Samsel said, according to a recording of his interview with the FBI.

Carlson, in his legal defence, could point to inconsistencies in Samsel’s account. He could also note that Epps sent a text to a family member, well after the riot ended, saying he helped “orchestrate” the movements of people toward the Capitol.

(In recent weeks, Samsel has abruptly changed his story. From jail, he has started calling reporters – mostly for right-wing media outlets – to say that he lied to the FBI and that Epps told him to pull at the barricades. Samsel acknowledged to The New York Times, however, that he had not provided this new story under oath to prosecutors.)

There are also unresolved legal questions about whether Epps truly suffered reputational harm if the only people he presumably lost esteem with are those who think January 6 was a righteous cause.

“The question I would raise if I were Tucker Carlson’s lawyer,” said David Logan, a former dean of Roger Williams School of Law, “is should Epps be able to claim defamation when the people who think less well of him are criminals?”

“Courts have struggled with this exact question,” he added, pointing to hypotheticals such as a man who sues over false allegations that he is gay, or an anti-abortion activist who claims she was wrongly accused of having an abortion.

Carlson could rely on the ambiguous and indirect language he sometimes used in describing Epps. For instance, he said at various points that he couldn’t be sure if Epps was really a double agent, acknowledging, “We don’t know anything about him.”

An indictment of Epps could also complicate his defamation case, by making any claim of reputational damage more difficult. “The centerpiece of a libel case is an alleged harm to reputation, so it for sure can become trickier to prove that you experienced a damages-incurring loss if your reputation is already poor because of true information,” said RonNell Andersen Jones, a professor at the University of Utah S.J. Quinney College of Law. “But the questions are often complex.”

Only if a judge allows a case to proceed, Logan said, will his lawyers know how strong their position is.

“Unlike Dominion, without Epps filing suit and getting broad discovery, we can’t be sure that Tucker Carlson had any doubts about the veracity of the allegations,” Logan said. “Or that similar doubts went up the corporate chain.”

The New York Times

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