Earlier this month, a lawyer for the busted Capitol rioter Anthony Antonio offered a remarkable defense for his client: It was Fox News’ fault. After losing his job during the pandemic, his lawyer argued, Antonio spent the next six months watching Fox News “constantly.” In doing so, he developed “Foxitus,” which caused him to believe Trump’s “stop the steal” lies and then storm the Capitol. While this defense has garnered loads of media attention for its novelty, a much more cynical courtroom defense involving Fox News and right-wing punditry has been largely overlooked.
That defense, dubbed the “No Reasonable Person” defense, has been made by a string of prominent conservatives, including Sidney Powell, Alex Jones, and Tucker Carlson. It argues that “no reasonable person” would believe the statements they make, which ostensibly gives them the right to say whatever they want—no matter how reckless or untrue. The “No Reasonable Person” defense is significant because it shows that conservative media stars and their networks, and even prominent conservative lawyers, are finally admitting that they are not reliable sources of facts: They are opportunists and entertainers, first and foremost.
Take Sidney Powell, Donald Trump’s former lawyer. In March, Powell sought to dismiss a $1.3 billion defamation suit filed against her by Dominion Voting Systems. Her lawyers argued that “No reasonable person would conclude that the statements [Powell made] were truly statements of fact.” The “statements” the motion referred to were Powell’s claims that Dominion engaged in a widespread conspiracy to rig the 2020 presidential election for Joe Biden—by, among other things, electronically switching votes cast for Trump to Biden. Those statements were repeated constantly by Fox News and other right-wing outlets, doing untold damage to our democracy by helping entrench the fallacy that the election was stolen (polls show most Republicans still believe this).
As Orwellian as Powell’s defense sounds—she is a lawyer, after all—it was just the latest attempt by a prominent conservative to use this argument to avoid responsibility for making potentially libelous claims. Given the enormous influence Powell [by representing Trump] and these other conservative stars hold on the Republican electorate, the essence of the argument is jaw-dropping. They are arguing, in a court of law, that they should not be held accountable for their statements because most people should know that their statements are not true. Whether their viewers and listeners are “reasonable” is another matter, but one need only look at Antonio and the Capitol riot to know that ludicrous, baseless statements are often widely believed.
Alex Jones is another example. In April 2017, Jones, the host of Infowars, was in a heated custody battle with his ex-wife, Kelly. In making her case against Jones, Kelly argued that Jones was “not a stable person” and that his manic rants—which included claims that the Sandy Hook mass shooting and the moon landing were staged—were often overheard by their children (since Jones broadcast from home). But Jones’ lawyers argued that his on-air rants should not be taken seriously because he was in fact a “performance artist” who was merely “playing a character.” To judge Jones based on his on-air personality, his lawyers argued, would be akin to judging “Jack Nicholson based on his performance as The Joker.”
But Jones, of course, is not Jack Nicholson nor some random shock jock with a handful of listeners. His fans consider him a valued source of political information. His website, InfoWars, garners 10 million monthly visits, which is more than some highly respected mainstream outlets receive. In 2015, Donald Trump appeared on Jones’ show and told him that his reputation was “amazing.” Jones even helped fund the rally that occurred before the Capitol riot. So however earnest or disingenuous Jones’ public proclamations, they can’t be disregarded as harmless “performance art.” But the question remains: Does Jones believe what he says?
The answer can be found not only in his custody defense but also in the apologies he’s made. After Jones helped spread the “Pizzagate” conspiracy theory, for example—which claimed that Hillary Clinton and other Democrats were running a sex ring out of a D.C. pizzeria called Comet Ping Pong—the owner of the pizzeria threatened Jones with a libel suit. Jones not only apologized but retracted his allegations. Then, after families of Sandy Hook victims forced Jones to undergo a sworn deposition, Jones acknowledged that the shooting was real and claimed that he had been suffering from “a form of psychosis” when he denied it.
One must conclude that Jones’ custody defense was accurate: He is a showman and an opportunist and should not be taken seriously. On a broader level, it’s time to admit, once and for all, that this is an apt description of the entire conservative political-media conglomerate. Fewer and fewer serious thought-leaders occupy positions of influence on the right. People like the aforementioned and so many of their colleagues are the ones with the stranglehold on the Republican electorate. And they do not exist to enlighten. They exist to sell a product to a demographic that craves a particular worldview. This is not breaking news, of course, but it’s noteworthy that some of the most influential conservative pundits are finally admitting it—even if it’s being forced out of them in a court of law.
This disingenuousness extends to entire networks, as well. Take One America News, an increasingly influential conservative news channel. For a story published in April, Marty Golingan, a producer at OAN, told The New York Times that he believed his channel’s misinformation helped spark the Capitol riot. Moreover, he claimed that most OAN employees did not believe Trump’s voter fraud claims even though the network frequently promoted them. Checking his claims, The Times interviewed 18 current and former employees and found that 16 of them backed Golingan, agreeing that the channel ran stories that were “misleading, inaccurate, or untrue.” (Twelve OAN employees ultimately quit in the wake of the riot.)
“Republicans are increasingly cloaking themselves in the First Amendment to justify all kinds of mendacious, destructive speech.”
While we expect a measure of hyperbole in our political speech—indeed, the First Amendment allows for wide latitude with such speech—we should not allow that speech to become so unhinged from reality that it undermines Americans’ basic faith in democracy. Donald Trump’s “Big Lie” did just that. In fact, Republicans are increasingly cloaking themselves in the First Amendment to justify all kinds of mendacious, destructive speech, apparently unaware that free speech is not absolute. Just as you can’t yell fire in a crowded theater, you should not be allowed to yell, over and over on popular media outlets, without evidence and for cynical political purposes, that a voting machine company rigged an election. Because in the end, what’s a worse consequence: a mad rush for the exits in a darkened theater or an attempted coup that kills five?
In spreading his “Big Lie,” Trump was aided by people like Powell, Jones, Carlson, Rudy Guiliani, Jeanine Pirro, Lou Dobbs (these last three are being sued by Smartmatic, another voting systems company) and so many like them. But again, these are entertainers and lackeys, not serious commentators. The evidence—indeed, their own courtroom admissions—is increasingly bearing this out.
One more example bears repeating. In September 2020, a federal judge dismissed a defamation suit against Fox News brought by Karen McDougal, the former Playmate who claimed she had had an affair with Trump. What prompted McDougal to file the suit was Tucker Carlson’s on-air claim that she had attempted to extort Trump by alleging the affair. But Fox’s lawyers succeeded in getting the suit tossed by arguing that Carlson’s statements “are not reasonably understood as being factual.” U.S. District Judge Mary Kay Vyskocil agreed, ruling that “Given Mr. Carlson’s reputation, any reasonable viewer arrives with an appropriate amount of skepticism about the statements he makes.”
Tucker Carlson has been widely mentioned as an early frontrunner for the 2024 Republican presidential nomination. An appropriate amount of skepticism, indeed.