‘He has failed to plead actual malice’: Fox News presses judge to dismiss renewed defamation lawsuit filed by man at the center of Jan. 6 ‘false flag’ conspiracy theory

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).

Fox News on Thursday pressed a federal court to nix a defamation lawsuit over comments made by Tucker Carlson about an Arizona man’s 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.

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.

Since then, motions practice has been swift and fierce.

Earlier this month, Fox News filed a new motion to dismiss. Epps then fired back with his answering brief. Now, Fox News has filed its reply in support of their motion to dismiss. Through it all, the network maintains the would-be plaintiff simply has not done enough.

“Plaintiff fails to provide any basis to salvage the Amended Complaint from dismissal,” the reply brief argues. “He does not identify any new factual allegations to alter the holding that he has failed to plead actual malice.”

The major point of contention 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 real terms, the malice issue is largely being fought on terrain concerning Carlson’s then-and-since-fired producer, Abby Grossberg.

Epps, for his part, cites comments made by Grossberg herself as well as some alleged comments made during meetings with top brass for both Carlson’s show and the network.

Fox News says Grossberg is just not that important.

“He seeks to build up Abby Grossberg as a person responsible for the challenged statements on Tucker Carlson Tonight,” the reply brief goes on. “But he has no answer to Grossberg’s own assertions that, by the time of the challenged statements, she had been demoted, excluded from decision-making, and was largely kept in the dark even in the limited role she had related to booking guests.”

In his own latest motion, Epps attorneys’ write: “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.”

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.”

Epps essentially says Fox News took those facts and ran — ginning up an avalanche of unfounded hatred and ill-will.

From the potential lawsuit:

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.

In their reply, Fox News also insists that regardless of what was said about Epps, those words were protected by the First Amendment.

“Plaintiff offers no sound basis for holding that the challenged statements are anything but protected opinions,” the filing reads.

Fox News elaborates, at length:

The transcripts make clear that Carlson provided known facts — including video of Plaintiff — and then provided commentary on those facts, allowing viewers to judge for themselves what to conclude from Plaintiff’s conduct and the fact that he had not been charged. At one point, Carlson told viewers: “[Y]ou can draw whatever conclusions you like from that video. We have ours and we shared them with you.” Such discussion about Plaintiff and his role on January 6 reflected core First Amendment protected opinions that cannot support a claim for defamation or false light.”

Fox News also says the statements made did not have a meaning precise enough to rise to the level of defamation.

“Plaintiff cannot dispute that almost all the challenged statements merely note the fact that Plaintiff had not been charged for his conduct on January 5 and 6 and either (i) ask questions, such as “why is that?” or (ii) suggest there was something “mysterious” and worth questioning about why Plaintiff had escaped charges,” the filing goes on. “Asking and encouraging questions does not assert a fact.”

‘He has failed to plead actual malice’: Fox News presses judge to dismiss renewed defamation lawsuit filed by man at the center of Jan. 6 ‘false flag’ conspiracy theory

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‘He has failed to plead actual malice’: Fox News presses judge to dismiss renewed defamation lawsuit filed by man at the center of Jan. 6 ‘false flag’ conspiracy theory

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