Fox News Sued for Defamation by Man Named in Jan. 6 Conspiracy Theories

The Washington Post / Jeremy Barr, Will Sommer

13:15 JST, July 13, 2023

Fox News, which recently settled two separate high-profile legal challenges for approximately $800 million, is now facing a defamation and false-light lawsuit from a man who said the network presented him as a “scapegoat” for the Jan. 6 insurrection at the U.S. Capitol.

Ray Epps attended the pro-Trump rallies in Washington in January 2021 but was not among the people found to have breached the Capitol building and has not been charged for his conduct. In subsequent weeks, then-Fox News host Tucker Carlson highlighted a video clip of the Arizona man outside the Capitol to suggest that Epps might have been a government informant – a notion that Epps and the FBI have strongly denied.

“Fox, and particularly Mr. Carlson, commenced a years-long campaign spreading falsehoods about Epps,” the lawsuit charges, claiming that Epps and his wife, Robyn, have had their lives “destroyed” by those false claims.

The lawsuit, which was filed in Delaware, claims that Fox – and Carlson – knew that Epps was almost definitely not a federal agent but chose to disregard that knowledge, therefore arguing that the network acted with actual malice, the standard necessary to win a defamation case against a public entity.

“Fox engaged in purposeful avoidance of the truth, intentionally ignoring information and evidence that directly contradicted Fox’s outlandish lies about Epps,” the complaint charges. “Fox refused to retract, correct, or apologize for its demonstrably false and defamatory accusations against Epps well after Fox knew definitively that they were false, providing yet additional circumstantial evidence of actual malice. Fox thus broadcast its lies about Epps with a high degree of awareness of probable falsity.”

In a March 23 letter, a lawyer for Epps, Michael Teter, demanded that Carlson and Fox News retract their claims about Epps and put the network on notice of potential legal action. The lawyer set a March 31 deadline for a response to the letter but previously told The Washington Post that he did not receive one. “This lawsuit marks another moment of accountability for Fox News,” Teter said in a statement on Wednesday.

Fox News representatives did not return a request for comment on the lawsuit.

Epps rose to attention on the right because of videos shot on Jan. 5, the night before the riot, that showed him arguing with Anthime Gionet, a far-right live-streamer who goes by the alias “Baked Alaska.” In the recording, Epps urged Trump supporters to enter the Capitol on Jan. 6. “We need to go into the Capitol!” Epps told Gionet.

In his lawsuit, Epps claims he believed parts of the Capitol would be open to the public and that he thought Trump supporters would enter the building lawfully. Epps protested outside the Capitol on Jan. 6 but was not initially charged. His photo briefly appeared on an FBI website seeking information about various protesters but was removed in July 2021 after he was interviewed by agents.

The video of Epps, combined with the fact that he wasn’t prosecuted and his photo vanished from the FBI site, became fodder for right-wing conspiracy theorists, who claimed he was planted on the scene by federal agents to provoke otherwise peaceful protesters into committing violence, a notion that trickled into conservative media channels. Carlson began regularly questioning whether Epps was an informant or undercover figure on his broadcasts, describing him as someone who “helped stage-manage the insurrection” in one January 2022 broadcast.

In a January 2023 broadcast, Carlson reminded his audience that Epps had not yet been charged. “Why is that? Well, let’s just stop lying,” Carlson told his viewers. “At this point, it’s pretty obvious why that is.”

In a July 2022 segment of Carlson’s show, one of his guests, conservative commentator and former Trump White House speechwriter Darren Beattie, called Epps “the smoking gun of the entire fed-surrection,” a suggestion that Carlson did not rebut.

Other Fox hosts also raised the topic. During an October 2021 segment of Laura Ingraham’s show, an on-screen graphic asked “Were Federal Assets Involved in Capitol Riot?” while the host talked about Epps’s role.

The Epps conspiracy theory was also embraced by some Republican members of Congress. “I think somebody that worked that hard to get people to go in the Capitol, why aren’t they rotting away in the D.C. jail?” Rep. Marjorie Taylor Greene (R-Ga.) said in a June 2022 live stream.

In May, Epps claims in his lawsuit, the Department of Justice informed him that “it would seek to charge him criminally” – a decision the suit attributes to “the relentless attacks by Fox and Mr. Carlson and the resulting political pressure.”

After Carlson’s segments, Epps and his wife were deluged with harassing threats and messages, according to the lawsuit. The conspiracy theories fanned by Carlson forced them to flee their Arizona ranch and the wedding-venue business they operated on the property, selling the property at a fire-sale price, according to the lawsuit.

“It’d be a damn shame to see that place go up in flames,” a caller on one of the harassing voice mails stated, according to the lawsuit.

Now Epps and his wife live in an RV a tenth the size of the ranch house they abandoned because of the threats, according to the lawsuit.

“After destroying Epps’s reputation and livelihood, Fox will move on to its next story, while Ray and Robyn live in a 350-square foot RV and face harassment and fear true harm,” the lawsuit reads.

The Epps case presents another major legal headache for Fox, which in late April paid $787.5 million to settle a defamation lawsuit filed by Dominion Voting Systems over the network’s coverage of the 2020 election. And in late June, the network paid $12 million to settle a workplace discrimination lawsuit filed by a former producer, Abby Grossberg. The network is still facing a defamation lawsuit filed by voting technology company Smartmatic, which is expected to go to trial in 2025.

RonNell Andersen Jones, a University of Utah professor who specializes in media law, said that Epps can clearly demonstrate that he was harmed by the on-air comments about him. “But,” she said, “the key question here is whether he was defamed, and that is going to require some careful situating of his facts within the framework that the law recognizes.”

While Carlson never directly stated that Epps was a federal agent, “when the whole story added together leads to a defamatory meaning, it can be found to be defamatory,” Andersen Jones said. “This will almost certainly be the underlying theory of some of Epps’s case.”