What’s Behind Ray Epps’ Decision to Only Sue Fox News in Newly Filed January 6 Defamation Lawsuit?

AP Photo/John Minchillo

In April, Fox News agreed to pay Dominion Voting Systems $787.5 million in order to avoid a trial in the lawsuit brought by the voting machine company over how the network covered its role in the 2020 presidential election. It now appears as though the cable news channel has another First Amendment case on its hands.

Last Wednesday, Ray Epps filed a defamation lawsuit against Fox News. In the complaint, Epps accuses the network and former primetime host Tucker Carlson of telling a “fantastical story” and “creating and disseminating destructive conspiracy theories” about his role in the “Stop the Steal” rally at the Capitol on January 6, 2021.

On Monday’s show, Megyn was joined by top attorneys Arthur Aidala and Mark Eiglarsh to break down Epps’ case and what it could mean for Fox News and Carlson.

Ray Epps’ Defamation Case

According to the court filing, Epps and his wife, Robyn, voted for former President Donald Trump in 2016 and 2020 and were “persuaded by the lies broadcast by Fox asserting that the [2020] election had been stolen to exercise their perceived responsibilities as patriotic citizens to gather in the nation’s Capitol on January 6, 2021 to ‘stop the steal.’”

In video of the day, Epps is seen on camera explicitly telling those around him that “we need to go into the Capitol.” That led some in the crowd to chant “fed, fed, fed,” seemingly in reference to the idea that he was working with the federal government. While 1,000 people have been charged in connection with January 6, Epps is not one of them. “If they could identify you as one of the rioters on January 6, you were arrested, you were charged, and you may have already been tried,” Megyn noted. “But not Ray Epps – despite very clear evidence that he participated in the whole thing.” 

Over time, a theory emerged that Epps was an undercover FBI agent. “Many people speculated about whether [Epps] was participating that day in some sort of undercover capacity for the feds trying to instigate criminality in the same way we saw in the Gretchen Whitmer kidnapping case in Michigan,” Megyn explained. Carlson was one of those speculators on his Fox News show.

The lawsuit alleges “Fox and Mr. Carlson made Epps the central figure in a lie they concocted about January 6, 2021.” It claims Epps’s “reputation and livelihood” were destroyed, and he and his wife now live in a 350-square foot RV and face “harassment” and “fear true harm.” Epps is seeking punitive and compensatory damages to be determined at trial because “Fox must be held accountable.”

The Defendant

While Carlson is mentioned throughout the lawsuit, Epps names Fox News as the defendant for “a years-long campaign spreading falsehoods” about him. Megyn, Aidala, and Eiglarsh agreed that it is unusual for a plaintiff to not go after all parties involved in a case like this. “If you slip on some soda, you sue Madison Square Garden, you sue the maintenance company from Madison Square Garden, you sue the Coca-Cola company for having slippery soda,” Aidala explained. 

There is a reason for that approach. “Typically you include everybody and then let them fight it out amongst themselves as to how much each one owes,” Eiglarsh shared. “Obviously he’s going after Fox News because they have the deeper pockets… [but] I think it undermines the credibility of the plaintiff’s lawyer that he doesn’t include the very person who he claims spewed untruths about his client.”

Epps’ attorney in this lawsuit is Michael Teter, who reportedly has ties to political operative David Brock. Brock co-founded the progressive media watchdog group Media Matters for America – the outlet responsible for publishing many of the leaked audio and video footage that emerged after Fox News and Carlson parted ways. “Brock is a disgusting political operative who ran Media Matters, which is a dishonest, gross group whose only mission in life is to tear down conservative commentators and conservative media,” Megyn noted. “The group is disgusting, and the fact that Ray Epps hired this lawyer tells me he’s probably disgusting, too.”

Aidala said that connection cannot be overlooked, but he also pointed to the Dominion settlement as a reason for the filing. “Look, they went after the low-hanging fruit,” he said. “They just saw that Fox was willing to write out a check for almost $800 million dollars, and the court they filed the case in is the same exact venue where Fox wrote out the check.”

Does the Case Have a Chance?

According to the lawsuit, FBI investigators met with Epps in March 2021. His photo was apparently removed from its website of wanted suspects later that year. “That should have been the end of the matter for Epps,” the filing says. Instead, it claims he was portrayed as a “villain.” It specifically highlights Carlson and how he was “fixated on Epps,” devoting “over two dozen segments” to him.

Megyn admitted that she hasn’t watched every minute of Carlson’s coverage, but she played a clip from October 2021 in which he clearly stated that he cannot prove the extent of Epps’ involvement in January 6:

“We should be totally clear we don’t know whether this Epps guy was working with the federal government. We don’t know anything about him. We haven’t talked to him. We can only show you video from that day. But we do know it doesn’t seem like he’s been punished for this. If you’re looking for the people who organized that day, maybe you should talk to him. Has he been indicted? Not that we know of. Maybe he has been. We don’t know, but we haven’t seen any evidence that he has been.”

Tucker Carlson Tonight, October 2021

“Tucker is smart enough not to say, ‘Ray Epps is a federal agent,’” Megyn said. “He’s smart enough to know… he wouldn’t be able to say that explicitly on the air.” Even so, Epps’ lawsuit claims Carlson went too far in his assertions.

Eiglarsh said it is going to come down to what was said on the air. “What [Carlson’s] doing there, I believe that’s constitutionally protected,” he explained. “I think that could be damaging, but the First Amendment allows people to speculate as long as it’s based upon fact.”

In that particular clip, Eiglarsh said Carlson came “right up to the line” but “didn’t step over it.”
“I understand why this gentleman is upset about it,” he concluded. “But, again, that’s what makes this country great – we have the First Amendment.”

You can check out Megyn’s full Kelly’s Court with Aidala and Eiglarsh by tuning in to episode 588 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.