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: Tucker Carlson (Chip Somodevilla/Getty Images).
Fox News wants a federal court to put an end to an Arizona man’s lawsuit over comments made by Tucker Carlson about his alleged 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. The plaintiff claims Carlson essentially promoted a conspiracy theory that bad-jacketed him as a government plant. Such allegations are often referred to using the sub-term “fed-jacketing” in various online political discussion spaces.
What started out as a request for an apology from the host using a lawyer’s 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.”
In December 2024, Epps asked federal court for permission to re-plead his case with an amended complaint. Fox, of course, pushed back. In turn, the court directed the network to file their arguments stylized as a motion to dismiss.
On Friday, Fox News filed their motion to dismiss, saying Epps’ amended complaint “fails to remedy the defects that prompted the Court to dismiss this case, and it continues to suffer from additional fatal defects as well.”
“The Court rightly dismissed Plaintiff’s claims for defamation and false light for failure to allege actual malice, and nothing in the Amended Complaint fixes that defect,” the Fox News motion continues.
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.”
Epps, in his second bite at the legal apple, attempted to square 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.”
Fox News rubbishes the would-be plaintiff’s reliance on Grossberg as far too little and, in a sense, far too late.
From the motion at length:
Plaintiff tries to bolster the role of former Fox employee Abby Grossberg on Tucker Carlson Tonight (TCT) to address the holding that nothing suggested she was responsible for the challenged statements (thus making her subjective views irrelevant to actual malice). But the new allegations reinforce the same conclusion. Grossberg did not even work on TCT when the first two challenged statements were made (July 13 & 14, 2022), and she claims that, before the next challenged statement was made, she had already been demoted from her Senior Producer role (which involved only booking guests in any event) and marginalized by her superiors. Nothing in the new allegations plausibly suggests that Grossberg had responsibility for the challenged statements.
Epps previously argued that Grossberg’s statements “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,” Epps’ 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 — amid a defamation lawsuit leveled by Dominion Voting Systems over the network’s broadcasts about the 2020 election.
Fox News says most of what Epps has said about Grossberg’s statements is simply not relevant to the legal issues at stake — and that the once-failed plaintiff otherwise “simply distorts what Grossberg has alleged in her lawsuits against Fox.”
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 in November 2024. His latest motion argues that Grossberg’s role included participation in meetings regarding “the content” of Carlson’s show.
Fox News says Epps struck out with his characterization of those discussions as well.
Again, the motion to dismiss, at length [emphasis in original]:
Plaintiff similarly falls short with claims that Grossberg described “meetings” between Fox executives and TCT producers at which they agreed to “manufacture” “false” stories about January 6th,” including the assertion “that Epps was a federal agent.” That simply misrepresents Grossberg’s complaint. What Grossberg actually alleged — again “upon information and belief”— was a “plan” to run stories based on Carlson’s team’s review of 44,000 hours of Capitol security footage to “downplay the violent rebellion.” Nothing in Grossberg’s complaint provides factual allegations to suggest that the people involved believed that the viewpoint Carlson would present based on the footage was “false.” Nor, more importantly, did Grossberg even allege that the Fox executives discussed stories involving Plaintiff at all.
In a footnote, Fox News takes Epps to task for a more basic misunderstanding. Whereas the amended complaint refers to “meetings” between Grossberg and network executives, the cited lawsuit only refers to a lone “meeting.”
The Fox News motion concludes tersely. A single line reads: “The amended complaint should be dismissed for failure to state a claim.”
