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).
The Arizona man trying to sue Fox News for defamation over comments made by Tucker Carlson about the Jan. 6 attack on the U.S. Capitol is asking a federal court to keep his lawsuit alive.
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.
The plaintiff’s legal crusade stalled out in November 2024 when a federal district court ruled in favor of a Fox News motion to dismiss. Epps got a second bite at the apple a few weeks later by asking the court for permission to re-plead his case with an amended complaint.
Earlier this month, Fox News filed a new motion to dismiss.
Now, Epps says the network is the party asking for far too much.
Procedurally, the legal battle is about whether or not Epps has a live lawsuit, the heart of the dispute is whether or not the network acted with “actual malice.” Or, more specifically, whether the amended complaint contains the proper combination of facts and analysis to sustain an argument that Fox News acted with actual malice.
Actual malice is the most exacting and hardest-to-prove standard in defamation law. The standard typically becomes operative when the person claiming to be defamed is a public figure.
In a 32-page answering brief filed Thursday, the plaintiff says the standard has clearly been met — and accuses Fox News of asking the court to ignore a plethora of such alleged evidence.
“Here, Ray pleaded facts satisfying each element of his defamation and false light claims,” the plaintiff’s attorneys wrote in his latest motion. “He pleaded facts sufficient to reasonably infer that Fox acted with actual malice and its statements were capable of defamatory meaning. Fox fails to advance its arguments through this proper lens and instead encourages this Court to overstep its role.”
In order to satisfy the actual malice standard, a plaintiff needs to first convince a judge — and then later try to convince a jury — that the defendant had actually expressed some doubt about the truth of the disputed statements. Secondarily, a plaintiff can plead facts showing a defendant acted with reckless disregard for such veracity.
The Epps motions lean full-throttle into the evidentiary standard. One chapter heading in the filing reads: “Ray Has Pleaded Facts That Raise a Reasonable Inference of Direct Evidence of Actual Malice.”
In their January motion to dismiss, the network argued Epps had simply not alleged “facts suggesting such subjective knowledge of falsity by those responsible for the challenged statements.”
Epps now says Fox News is disputing a mountain of evidence suggesting they knew exactly how false the claims were.
“In fact, with the new allegations, Ray’s Amended Complaint provides far more substance and details demonstrating actual malice than plaintiffs are typically capable of pleading at this stage,” the motion reads.
The substance and details cited by the plaintiff include comments made by Carlson’s then-and-since-fired producer Abby Grossberg, as well as some alleged comments made during meetings with top brass for both Carlson’s show and the network.
“Grossberg has since spoken publicly about the fact that she, while serving as Senior Producer/Head of Booking for Carlson’s show, did not believe the story that Fox was telling about Ray,” the motion goes on.
Essentially, 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.
Epps was, in fact, at the U.S. Capitol on that fateful day. He later spoke out about his experience, was eventually charged with a misdemeanor, and sentenced to one year of probation.
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.”
From the would-be lawsuit at length:
Fox told its viewers that Ray was a federal agent who incited the January 6 insurrection, and it did so intentionally, telling them that it was a fact. Fox said it was “reporting” “emerging news.” Fox said that the January 6 Committee and others were lying about Ray — proving the point that it was a verifiable assertion of fact. Now, to avoid accountability for broadcasting false facts, Fox says it was only expressing an opinion. But that’s not what it told its audience and the effect on Ray of Fox’s lies demonstrate that Fox’s viewers took from the broadcasts exactly what Fox intended.
The upshot of the subsequent reporting on Epps might best be reflected in recent comments made by President Donald Trump.
“I think we’re going to find out about Ray Epps,” the 47th president told podcast host Dan Bongino in early January.
Epps says Carlson’s — and therefore Fox News’ — characterizations of him went beyond the truth into the realm of defamation. And, he further alleges, the defamation was planned.
“Grossberg also described meetings in which Carlson, Justin Wells, Tucker Carlson Tonight’s Senior Executive Producer and Vice President of Tucker Carlson Digital Products, and high-ranking executives at Fox, including CEO Suzanne Scott and Executive Vice President of Primetime Programming Meade Cooper, coordinated to create false stories about January 6 — including March 6, 2023’s broadcast that discusses Ray,” the motion goes on.
To hear Fox News tell it, Epps is mischaracterizing the evidence.
The Grossberg-sourced evidence is culled from a lawsuit the former producer filed against Fox News herself. In their motion to dismiss, the network says two of the statements at issue were made before Grossberg worked on Carlson’s since-canceled show. They also say Grossberg was admittedly “demoted” and “marginalized” by the time a third statement was made.
Epps, for his part, also cites multiple statements made by three other former Fox News employees. Those statements, the plaintiff argues, directly implicate the network in “the false reporting occurring on Carlson’s show about January 6.”
And, to the salient legal point at issue, the plaintiff says this is all more than enough to plausibly show Fox News acted with actual malice. To that point, Epps further argues, the defendant is trying to sidestep how the law actually works.
“Fox contends that these allegations do not demonstrate actual malice,” the motion continues. “But to do so, Fox violates Rule 12(b)(6)’s command that it must accept the alleged facts as true and draw all reasonable inferences in Ray’s favor.”
Again the filing, at length:
Fox’s unwillingness to accept the most direct and justifiable inferences represents an even more critical assault on the actual malice caselaw, which directs that “[o]n a Rule 12(b)(6) motion to dismiss, we do not concern ourselves with questions of evidentiary sufficiency, but ask only whether [the plaintiff] laid out enough facts from which malice might reasonably be inferred.” Grossberg’s lawsuits were centered on her allegations of sexual harassment and a hostile work environment. Thus, her pleadings were not attempting to provide a full account of the internal discussions regarding Carlson’s broadcasts. Instead, her references to Carlson’s coverage of Ray are incidental to her claims against Fox. But her pleadings provide enough information to satisfy Rule 12(b)(6) as to Fox’s actual malice regarding its statements about Ray and further allows the reasonable inference that discovery will reveal more information from Fox’s internal communications regarding Carlson’s on-air statements about Ray.
In other words, Epps is saying that Fox News is trying to minimize both direct and circumstantial evidence about what went down behind closed network doors — and he theorizes additional such evidence will be uncovered if the case is allowed to move forward.
The network, in filings and statements, has strongly pushed back against Epps’ claims.
“The proposed amendments do not fix any of the defects in his original complaint that the court dismissed,” a Fox News spokesperson previously told Law&Crime.
