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Axios: Fox News says ‘Tucker on Twitter’ is a breach of contract

Let’s review how we got here for a minute. Tucker Carlson’s Fox News show abruptly ended a couple months back, just after Fox News had a reportedly massive settlement with Dominion Voting Systems over their defamation suit. Eventually there was some indication that Carlson’s show was ended as part of the settlement, though it doesn’t appear to be fully verified at this time. Further, while we never got direct and open verification, we started to hear very credible accounts that claimed that contrary to what we initially thought, Carlson was not fired. Instead, he was just ordered off the air, but he also wasn’t let out of his contract. So, they were basically paying him not to work—probably because they would be concerned that if he jumped ship for a competitor (such as Newsmax) he would cause more financial damage than just paying him to do nothing. And reporting indicated that this would sideline him all the way through the 2024 election.


But our read on Carlson is that not being able to put out his opinion was borderline torture for him. He loved to put his views out there for the sake of doing so and at this point he had apparently made enough money that he probably would never have to work again for the rest of his life. And we had heard rumors that Carlson was considering just breaching the contract and paying whatever he had to, in order to get himself out there. Maybe he dreams of turning his Twitter show into a profitable empire (for instance, how long will it be before he can start to attract sponsors and literally intersperses his commentary with paid pitches for products), or maybe he wants nothing more than to shoot his mouth off and burn Fox News down. Who knows?

But the inevitable next shoe has dropped:

The article says they got a copy of the letter, but rather than just posting the whole thing they quote very selectively from it:

Shortly after Carlson posted the first episode of his new show on Twitter Tuesday evening, Fox News general counsel Bernard Gugar sent a letter to Carlson’s lawyers saying Carlson ‘is in breach’ of his contract agreement.

‘In connection with such breach and pursuant to the Agreement, Fox expressly reserves all rights and remedies which are available to it at law or equity.’

(Formatting removed.) This is probably a good time to mention something that has been gnawing at us for a while: The coopting of the term ‘equity’ by grimy socialists. Recently, progressives have been using the term ‘equity’ to essentially argue for equal outcomes, rather than equal opportunity. But as the term is used in reference to our judicial system—it’s actually mentioned in the Constitution—equity has nothing to do with that nonsense. We won’t go too deep into this rabbit hole, but the basic thing to get is that when someone says they are seeking a remedy at law, they are talking about damages, a.k.a. money. But when they seek a remedy in equity, they are talking about injunctions and the like—essentially the courts telling you to either do something or not do something. So, this letter is saying Fox News might sue Carlson for damages, or it might try to get a court order to him to do or refrain from doing something. That probably is a threat to try to get an injunction to take him off the ‘air’ on Twitter—it’s hard to imagine them seeking an injunction for any other purpose at this time.


More from the Axios piece:

The letter refers to Carlson’s contract, which was originally signed on November 8, 2019 and amended on February 16, 2021.

‘This evening we were made aware of Mr. Tucker Carlson’s appearance on Twitter in a video that lasted over 10 minutes,’ the letter read.

(Formatting removed.) We have little doubt that these lawyers had a draft of the letter ready to go the moment that Carlson started talking about creating a show on Twitter and they were just waiting for Carlson to launch his show. All they probably needed to do was fill in a few details. Axios goes on:

‘Pursuant to the terms of the Agreement, Mr. Carlson’s ‘services shall be completely exclusive to Fox,’‘ it continues, quoting Carlson’s contract.

It adds that Carlson’s contract says he is ‘prohibited from rendering services of any type whatsoever, whether ‘over the internet via streaming or similar distribution, or other digital distribution whether now known or hereafter devised.’‘

The frustrating thing is they are talking about a contract we have never seen. For instance, what does the term ‘services’ mean? Let’s say he offers to cut his elderly neighbor’s lawn… is he rendering services in violation of the contract to that person? Presumably, he is not forbidden from doing anything for anyone. If he wants to help a little old lady cross the street, that probably isn’t a breach of contract. So, presumably, there is a definition in the contract that explains the term.

So what is covered by the term? For instance, we covered an interview Tucker Carlson gave on Tulsi Gabbard’s show while his show was still on the air and apparently Fox News had no problem with it. So, there he … shared his opinion about the news and even some anecdotes. And what was his show on Tuesday? Sharing opinions about the news. Yes, the presentation was slightly different. The Gabbard interview was just that: An interview. Meanwhile ‘Tucker on Twitter’ show looked and sounded a lot like the opening monologue of his old Fox News show. But unlike his old show there was no attempt to offer original reporting or to interview any subjects. He basically talked about issues in the news and shared his opinion on the subject. So, without reading the contract, it’s hard to understand why one is not a violation of his contract, but the other one was, though there might be some explanation that is less obvious.


However, as we said, Carlson might literally be willing to just breach the contract and pay the price and then move on with his life. Lawyers are typically aware of the concept of ‘efficient breach’ of contract. That is the idea that there might be a situation where it makes financial sense for a person or entity to breach a contract because even paying the full damages for such a breach is cheaper (or otherwise more profitable) than keeping the contract. Or Carlson might want to have an inefficient breach—he still loses more money than he gains, but he doesn’t care because he just wants to shoot his mouth off. For instance, if launching his Twitter show was a breach of contract, that would suggest a definition of ‘services’ that might even cover him just commenting on the news, in text, on Twitter. And, in theory, Fox News might be able to seek an injunction to keep Carlson off the air, but such noncompete enforcement is at best hit and miss.

Naturally, there were reactions to this news.

One person relished the thought of Carlson being silenced—a view unfit for anyone who lives in a free republic:

Others hated on Carlson:

Except this person probably has no idea what the contract says, either.

This is one of those myths on the left that have been floating around for a while and we’re going to take a moment to dismantle it. It is a reference to a defense offered in a lawsuit that a particular statement shouldn’t be taken as a statement of fact, in the case of McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174 (S.D. N.Y. 2020) and it is used to argue that no one should actually take Carlson seriously. But if you dig into the case, you will see that that isn’t what was argued.


Carlson and Fox News were being accused of defamation. One of the most basic things one needs to make out a claim for defamation is a statement of fact. For instance, there is a classic segment The Daily Show did in 2015 making fun of Joe Biden for being basically a complete creep, called ‘The Audacity of Grope,’ linked to by this tweet:

In the clip, Samantha Bee says that she just came from a ‘one on one’ interview with then-Vice-President Biden. And there are handprints on her chest (giggle) that her character is unaware of: One is dark red while the other was white. She said that Biden had just written ‘I will not grope women’ 100 times on a chalkboard’ with one hand and had been eating strawberry preserves without utensils with the other hand—the joke being that it explains the coloration of the handprints. And then she turns around while saying that Biden had also changed the oil in his car with one hand while eating some Cheetos with the other, and you can see orange and black-brown handprints on her butt. It’s a genuinely funny segment.

Now, suppose Joe Biden decided to sue The Daily Show for defamation, claiming that it was completely false. Well, a court would take one look at the segment and throw the case out because everyone watching it would understand it was a joke. Specifically, what the court would say is that it was not a statement of fact, and no one would understand it as such.

In other words, we are not supposed to be taken literally 100% of the time. Ordinary people engage in jokes, hypotheticals and other rhetorical devices that are not understood to be statements of fact at all. We just used the hypothetical of Biden suing the Daily Show, for instance. We don’t believe anyone would understand that hypothetical as a statement of fact that Biden did actually file such a suit and no court is likely to read it that way.

That brings us to the McDougal case. According to the court, Karen McDougal (a former playboy model) claimed that she is another woman who was essentially paid to be silent about an alleged affair with Donald Trump during the 2016 campaign, much like Stormy Daniels.

Carlson described what Trump’s former lawyer, Michael Cohen, claimed to have happened and then he said this:


We’re going to start by stipulating that everything Michael Cohen has told the feds is absolutely true. Now, assuming honesty isn’t usually a wise idea with Michael Cohen, but for the sake of argument, let’s do it in this case, everything he says is true, why is what Cohen is alleging a criminal offense?

Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.

Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

Thus, allegedly Carlson defamed McDougal by suggesting she committed extortion. Except the Court correctly recognized that this just wasn’t the case. Carlson explicitly said that he was pretending that Cohen’s claims were true ‘for the sake of argument.’ So, the entire discussion of possible extortion is a hypothetical. He even indicated that he didn’t think Cohen was very trustworthy.

So, contrary to what the leftist myth claims, Fox News’ lawyers were not claiming that no one should ever take Carlson seriously. What they were saying is that when Carlson is engaged in a hypothetical, you shouldn’t take him seriously. You know, like everyone else engaging in a hypothetical. So, the next time one sees a liberal make this claim, send them to this article.

Returning to reactions to the Axios story, some basically wanted it all to burn, or at least giggled at the prospect:

(We read this as sarcasm.)

And some from the conservative side reacted with disdain toward Fox News:


To be fair to Fox News, Tucker could really do damage if he joined any of Fox News’ competitors. For instance, imagine if he joined Newsmax. Still, Fox News seems to be destroying its brand faster than Bud Light.

It depends on what the contract says and the courts’ willingness to enforce it.


Finally, one person had criticism for Axios:

We tend to agree. Ideally, journalism should be as ‘open source’ as possible.


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