Left: Ray Epps is seen talking with accused Jan. 6 rioter and Proud Boys member Ryan Samsel near the Peace Circle monument (via FBI court filing). Right: Photo of Tucker Carlson (Chip Somodevilla/Getty Images).
An Arizona man is looking for another chance to sue Fox News for defamation over comments made by Tucker Carlson about his involvement in the Jan. 6 riots at the U.S. Capitol.
James Ray Epps, in a series of increasingly escalating legal maneuvers, accused the network’s now-former talking head of painting him as an agent provocateur who “helped stage-manage” the abortive insurrection on behalf of the federal government as protests devolved into chaos.
In other words, the plaintiff claims, Carlson was responsible for mainstreaming a right-wing conspiracy theory that bad-jacketed him as a government plant. Such allegations are often referred to using the sub-term “fed-jacketing” in online political discussion spaces.
What started out as a request for an apology from the host using a lawyer letter quickly morphed into a full-blown defamation lawsuit against Fox News. Epps lost that battle in November when a federal judge appointed by President Joe Biden determined the plaintiff had failed to prove that Carlson had acted with “actual malice.”
Now, in a 14-page motion for leave to file an amended complaint filed Tuesday in Delaware District Court, Epps and his lawyers are asking District Judge Jennifer L. Hall for an opportunity to re-plead the case in a way that satisfies those relevant legal standards.
Actual malice is the highest, most exacting standard in defamation law — and the hardest to prove. The standard typically becomes operative when the person claiming to be defamed is a public figure.
In the present case, Fox News argued Epps was a “limited purpose public figure” because he “voluntarily thrust himself into a public controversy by the prominent role he assumed” on Jan. 6 – by flying across the country to attend the protests, by being filmed telling people to “go into the Capitol,” by “giving live interviews” about the events, and by other such “open participation in notorious activities.”
The root of the conspiracy theory is Epps’ documented actions on the day in question – and the concomitant pace of federal prosecutors after the fact. Epps was seen in Washington on Jan. 5 and Jan. 6, 2021, participating in various pro-Trump activities, including attending the “Stop the Steal” rally immediately before the march on the Capitol.
That he was not quickly arrested in connection with the riot — and later removed from the FBI’s “Most Wanted” list after reaching out to investigators — gave rise to the notion Epps was a federal agent or asset, sent to rile up the pro-Trump crowd and lead them into a “false flag” operation. Also likely inuring to the benefit of the conspiracy theory was Epps’ January 2022 testimony before the since-defunct House Select Committee To Investigate the Jan. 6 Attack. Epps told lawmakers about a text message he sent to his nephew after the riot: “I was in the front with a few others. I also orchestrated it.”
By September 2023, of course, Epps was charged with a misdemeanor. While the government pushed for punishment behind bars, a judge sentenced him to one year on probation.
More Law&Crime coverage: ‘Propaganda espoused on Fox News’: Trump supporter targeted by ‘false flag’ Jan. 6 conspiracy theory thinks he should get zero jail time
The defamation lawsuit was filed in July 2023 – and dismissed on Nov. 27, giving Epps 14 days to request leave to file an amended complaint.
Having done so within the time frame, Epps says there is nothing that should bar him from reformulating his petition in order to plead “facts sufficient to demonstrate actual malice.”
Fox News rubbished the new request on Wednesday.
“Fox News intends to oppose Mr. Epps request for permission to amend his complaint,” a spokesperson told Law&Crime. “The proposed amendments do not fix any of the defects in his original complaint that the court dismissed.”
The Epps request for leave argues that Epps has squared the actual malice circle by citing a number of statements made by Carlson’s then-and-since-fired producer Abby Grossberg.
Those statements, the motion essentially argues, “demonstrate direct evidence of Fox’s knowledge of the falsity of its statements” because “Grossberg enjoyed sufficient responsibility for the content of Mr. Carlson’s shows.”
“Epps’s proposed amended complaint provides significant additional facts—including allegations premised on multiple Fox employees’ accounts of the internal disbelief at Fox of Mr. Carlson’s statements about Epps,” the filing reads. “Further, the proposed amended complaint also addresses Ms. Grossberg’s critical role in Mr. Carlson’s show, noting that her job description stated that she would play a ‘prominent role’ in shaping the content of Mr. Carlson’s broadcasts.”
Grossberg herself eventually sued Fox News for discrimination – amidst a defamation lawsuit leveled by Dominion Voting Systems over the network’s broadcasts about the 2020 election.
The latest motion argues that Grossberg’s role included participation in meetings regarding “the content” of Carlson’s show. Epps goes even further, however, and says Grossberg was, in part, personally responsible “for the defamatory content of the Epps storyline” and has “admitted knowledge of falsity.”
The Epps motion goes on like this, at length:
Ms. Grossberg’s statements reveal that she observed the actions of all persons within Fox responsible for the defamatory statements and directly observed their acts of fabrication, their knowledge of falsity, and reckless disregard for the truth. Ms. Grossberg described meetings with Justin Wells, who was the Senior Executive Producer of Mr. Carlson’s show, in which Mr. Wells explained that he was coordinating with Fox’s executives and Mr. Carlson to manufacture stories about January 6 following Mr. Carlson being granted access to 44,000 hours of video footage.
Epps says the Grossberg comments and other details – which are documented at length in the proposed amended complaint – should more than suffice to give him another bite at the apple.
“Fox’s arguments and the Court’s decision granting the motion to dismiss were all premised on pleading insufficiencies, not facially invalid causes of action or legal deficiencies,” the motion concludes. “Thus, the proposed amended complaint is not futile. The Court should grant Epps leave to file an amended complaint. Rule 15 and the corresponding caselaw require a liberal approach to such requests. No basis exists for denying the motion and Epps should be provided an opportunity for this matter to be decided on the merits.”
