It would be a loathsome position for Fox News to take: They've fired an important speaker from their platform and then they want to prevent him from speaking anywhere else. Many people want to hear from Tucker Carlson, and Fox would need to argue they've purchased his silence for the next 2 years.
May 10, 2023
"Tucker Carlson, two weeks after being ousted by Fox News, accused the network Tuesday of fraud and breach of contract..."
"... and made a host of document demands that could precede legal action.... The aggressive letter from his lawyers to Fox positions Carlson to argue that the noncompete provision in his contract is no longer valid — freeing him to launch his own competing show or media enterprise...."
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I thought Tucker was doing such outstanding work, and so courageously, that he was bound to be assassinated by another vicious lefty. Sort of amazing in the head-shaking way that his own network fired him.
...but that's exactly the idea. Get him off the air, says AOC. Ask Megyn Kelley. They want to Megyn Kelley Tucker Carlson.
Once key difference- when Megyn Kelley was Megyn Kelley'd the strategy was never to keep her completely off the air. Instead NBC put her in some mid morning talkie-talk for a bit, a place where careers go to die. Maybe Megyn had better lawyers?
I had a customer who sold two business to National companies. Worked the non-compete In each. He said what when they purchased his businesses, their contracts were ten point & airtight, but It is hard to enforce a person making a living in his profession. Not a lawyer, but our corporate counsels new me by name. ;-)
Loathsome, indeed.
There is also an indication that his silencing is a condition of the Dominion settlement. Doubly loathsome, if true.
I don't think it's loathsome if the parties freely and fairly negotiated for certain provisions when the contract was first drawn up. If Tucker Carlson and his attorneys didn't contemplate the possibility that his employment might be terminated prior to contract expiration and so failed to negotiate what his options might be if that happened then he was poorly represented but it doesn't make the other party to the contract an evil creep.
Fox paid him to talk, I see no issue if it's obligated now to pay him to keep him from talking, which I understand there's separate consideration to support the no compete.
I grow weary of famous, wealthy, powerful people who have "problems" that have no connection to my average, ordinary, everyday life. I'm just hoping my employer doesn't cut the 401K match this year because business hasn't been that good.
It would be a loathsome position for Fox News to take: They've fired an important speaker from their platform and then they want to prevent him from speaking anywhere else.
But deep inside you’re hoping that’s what Fox News does, right?
It's the zeitgeist. We are in a cultural phase that's strikingly similar to the late USSR and late East Germany.
- Inept officials lie and bully to cover up incompetence
- Corrupt officials lie and bully to cover up corruption
- Those in power are mad with power and prefer to rule in hell over serving in heaven
Oligarchs worldwide are waging proxy wars and pulling governments around by their noses. Saudi Arabia and the oil states, Russian, Chinese, and US business owners (technology | healthcare) are all doing the same thing. Rupert Murdoch's clan is changing alliances as the sands shift, but just one of dozens of politically-active oligarchs. Expect more surprises and flip-flops, as every oligarch seeks to come out on top in the next economic cycle.
We live in a much more dangerous era than the US/USSR cold war. It's akin to the French Revolution and the 30 Years War following the invention of the printing press.
Apparently, Tucker freely signed a contract that prevents him from competing/speaking out after being fired. No doubt he was paid well for giving up that right. He is the one who decided to put money above his right to speak to "the people." He can always breach his contract and give Fox back the value of his silence. If it's loathsome, it seems that it's on Tucker, not Fox. Which makes sense becase he is about as loathsome as they come.
Maybe Putin will agree to reimburse Tucker for any damages he has to pay Fox. After all, Russia is the big winner if Tucker gets back his megaphone.
Maybe even a public policy exception to Tucker’s non-compete. The public has a right to hear from an important political commentator.
And non-competes have to be strictly construed against the employer. We don’t have slavery in America; even highly paid slavery. I think the Curt Flood case established that.
We are about to find out how far the corporate/government complex will go to silence popular opinion.
I haven't seen the terms of Carlson's employment agreement but Fox's action appears to be more a constructive discharge than fraud or breach of contract. In essence they have significantly altered the nature of his employment (i.e., as an on-screen political commentator), but continued to pay him in his altered role for the sole purpose of preventing him from continuing his career and tradecraft at some competitor. "Terminated, with pay."
That guy certainly is a fighter!
Meanwhile, Fox is reportedly suing Dominion for leaking Tucker Carlson's emails to invalidate the settlement. But it's kind of amazing, given that Tucker never bought into the Dominion stuff, and warned his viewers off if it, that Dominion demanded, per a Fox News board member, that he be silenced as part of their settlement. It almost sounds like Dominion really views itself as having a right to interfere in elections, despite their pretenses of objectivity and disinterest as to election results.
I think it's better that Fox be destroyed, rather than that it continue to serve as a co-opted opposition voice whose main purpose is to legitimize the cabal that currently runs our country and their obvious election rigging.
It doesn't matter, if the Democrats want Tucker silenced, and they do, the courts will find against Tucker, legal niceties notwithstanding.
Instead of teaching constitutional law, which is an obvious farce, you should have been teaching Machiavelli and Nietzsche, who defined the actual rules by which power is applied.
The left would love to silence him too.
the Soviet left are down with silencing people.
It is amazing to watch FNC self-liquidate.
I assume they think that as the election nears, there is little choice other than FNC as long as they stay just a bit to the right. Tucker was too out of management control and perhaps too big for his britches. They of course have misjudged the contrarian character of their viewers--no one is going to tell them what to do, particularly after the big COVID squeeze. Tucker provided lead-in for the rest of FNC's primetime lineup, but the advertiser boycott of him worked. On the latest Fox Corp. earnings call, Lachlan Murdoch was clucking about mainstream advertisers showing interest again with Tucker gone, but he acted as though there was no audience contraction. Bud Light isn't coming back--the company has been too dismissive of its customers. Perhaps FNC is in the same boat.
That Fox Corp board is something to behold--Rupert and Lachlan Murdoch, Anne Dias (Ken Griffin's former wife, who engaged in a scorched earth battle over the pre-nuptial agreement she had signed), Jacques Nasser (failed former CEO of Ford Motors), a couple of Bushies, some private equity media types, and Paul Ryan (not a success as Speaker of the House).
As the vulture capitalists say about sleepy managements, these folks are value destroyers of the first rank.
Really need lawyers here to weigh in on how far non competes can go. In sales I have worked, I was limited to the geography of the company I worked for. It was to prevent me from quitting and taking customers with. I have no idea how media personalities can legally be constrained in "the market". With out knowing the contract, its impossible to form an opinion. If their are 2 years left on a contract. Tucker is stuck. Can he buy out the contract? Impossible to know. Twitter is the work around. Tucker puts his content on Twitter, than lets Newsmax broadcast his content 24 hours later with compensation? This is all contract law stuff that lawyers need to sort out.
Like I said, Tucker could have played this cool--he had the biggest "genius grant" in history. But Fox wouldn't have let it go at that. The funniest thing I have seen is the Wilson Sonsini (representing Fox) letter to Media Matters demanding that they stop playing off-line outtakes that were obviously leaked to them by Fox.
Fox is right to demand that Media Matters stop playing those tapes--they are going to make Tucker Carlson the most popular man in America. One might not like Tucker's persona, but he is very real and consistent with the man you see on camera.
The right wing talking point attempting to claim Dominion demanded this in the settlement seems to have gone out last night, given the brownshirts are all speaking in lockstep today.
Facts and proof not needed by the Altbillies.
I have never heard of an enforceable noncompete clause after an employee has been terminated.
Fox will defend the sanctity of contract. They stuffed Tucker’s mouth with gold and a deal is a deal, right? Yes, it’s hush money; but hush money is legit, even laudable —except when Trump pays some bimbo to shut up and go away. That is BAD. To the BONE.
"It would be a loathsome position for Fox News to take"
In general, such feelings don't matter in progland. But the Murdochs haven't gone full prog yet and still must worry a bit about the deplorables, so in this case the perception of loathsomeness may be a deterrent.
I don't know what Tucker's contract says. But I doubt it can prevent him from speaking in any capacity in any setting.
Example: even if Fox somehow stops his free-speaking Twitter venture, couldn't the University of Austin hire him to "teach," record his "lectures," and put them online?
Heads will explode. Elon and Tucker working together.
Fox knew speaking truth to power, the murderous fauci, the cretinous phziser ceo, the loathsome schwab can only to be tolerated up to a point,
Mark--It is rarely helpful to insult those you intend to persuade, someone of your obvious mental capacity will behave as you will.
Have you considered a mental health review? Help is available.
I have never heard of an enforceable noncompete clause after an employee has been terminated.
I worked for a relatively large consulting firm that had us sign non-compete clauses. When people left, they were discouraged from working with client companies they had while working for the firm. However, I cannot think of a single case where the firm successfully enforced the non-compete. That includes my own experience.
I wonder if this is a true non-compete issue since Tucker is allegedly still on the Fox payroll. I also wonder is being "fired" is treated differently than voluntarily leaving the company.
The determination of breach of contract will depend on the wording of the contract. The oversimplification is that if his contract was a show in exchange for pay, then there may be a breach. If it is more broadly a services contract, then it could be "whatever the network says" in exchange for pay, which means shut up and collect your money.
I’m no contract lawyer, but wouldn’t it be constructed so Tucker has to do x, and Fox pays him? If Fox changes what x is, isn’t that a breach, if that remain silent case is not in the contract?
Lefty Mark and his mincing… good show!
So many contract law experts in the comments this morning...
I'm more interested in Fox's demise. It started with calling Arizona and is accelerating with Tucker's exit. They really didn't understand their younger viewers at all. Haha
First, I'm surprised he signed a contract with a non-compete.
Second, every big-shot in Silicon Valley signs a non-compete, but I've been hearing that they aren't enforceable...
'Maybe Putin will agree to reimburse Tucker for any damages he has to pay Fox. After all, Russia is the big winner if Tucker gets back his megaphone.'
Is this a parody account?
Dumber Than Ever Lefty Mark: "The right wing talking point attempting to claim Dominion demanded this in the settlement seems to have gone out last night, given the brownshirts are all speaking in lockstep today.
Facts and proof not needed by the Altbillies."
LOL
So very "on brand"!
"It would be a loathsome position for Fox News to take: They've fired an important speaker from their platform and then they want to prevent him from speaking anywhere else."
It would be remarkable. Not wanting to let him use your platform is one thing, but to silence him totally (in fact, to pay a lot of money to silence him!) would speak to a completely different motive.
It’s not clear exactly what is going on:
- There are claims that Tucker was not fired, but just removed from the air. That means that he would be getting paid as an employee. Can they pull their highest paid talent off the air, with no repercussions? Likely very much depends on his contract.
- Can the non-compete keep Carlson off Twitter? Off media like Rogan uses? First consideration is the employment contract, which no one outside the controversy seems to have seen. I think the lawyers here would love to see it. I know that I would. In my last firm, we had an Entertainment subsection in our IP section, until they jumped ship with a couple big clients. I kept doing their patent work after the split, which put me in a weird situation. Point is that Carlson’s contract with FNC is likely more an Entertainment type contract than a regular employment contract, with this sort of thing more likely covered.
- Non compete law varies state by state. Last time I looked at it, CA was on the pro-employee side, and NY on the pro-employer side of the spectrum. Carlson’s employment contract, no doubt, has choice of law, venue, etc provisions.
- One story is that it was a requirement of settling the Dominion suit. If so, it might be advantageous to drag Dominion into the case, by suing them for something like Tortuous Interference with Tucker’s contract with FNC. The could very possibly open up the settlement agreement to public scrutiny. This might also help Carlson sever his contract with FNC by being able to claim that they breached it.
Should be great fun.
Another angle about the non-compete is what remedies Fox might seek if Tucker were in breach. Damages are the usual remedy but if Fox wants to shut him up it would seek not a few score million dollars but an injunction. Absent a strong showing of irreparable injury (for which money cannot compensate), courts generally are reluctant to award injunctive relief —it forces the court to monitor and enforce the remedy, which is a thankless and onerous business, probably more like supervising a bad custody fight than sorting out a business deal. It also deprives a talented hard-working person of a chance to do something productive, rather than, say, snorting coke off a stripper’s belly.
So if Fox tries for injunctive relief, I think they will lose; and lose ugly.
That leaves them money damages, and here I think Tucker (and his new platform or sponsor) can hold their own. A big damage award would send a perverse signal: “We had this business asset worth tens and hundreds of millions of dollars, it was this guy Tucker and his take on things, his style, his guts etc —and it’s been taken from us. Well, actually, we destroyed it; took him off the air. But that’s not our fault: he was…too good! His ratings were amazing, so we had to fire him! Really!”
Seems to me the only legit restriction on Tucker would be for him to not to talk about Fox and I, for one, don't give a rat's ass about Fox. An agreement should be pretty simple.
Dave Begley said...
We don’t have slavery in America; even highly paid slavery. I think the Curt Flood case established that.
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Just for the record, Curt Flood lost his suit.
Blogger jim5301 said..."Which makes sense becase [Tucker] is about as loathsome as they come."
Care to provide some examples? I never saw "loathsome" when I watched him. But I didn't watch him a lot so maybe I missed them.
Fox has no damages from Tucker’s breach.
Once they took him off the air, their ratings tanked and have stayed there.
Fox caused its loss of audience and they aren’t coming back.
So Fox has no basis to prevent Carlson from doing his thing.
If anything, Fox should thank him. They won’t have to pay his salary any more.
Wow, an "agressive letter". How unfortunate. Personally, I like my letters passive or at least timid and shy.
Its obvious Fox breached the contract. Whether that can be proven in court, simply depends on which court. Its all a crap shoot.
Why these absurd contracts full of NDA's and no-compete clauses are allowed is puzzling to me. Tucker had leverage, but most people have no power to truly bargin with their employer and end up signing their lives away.
Does Tucker have a contract whereby if violates it, he loses his salary? Or does he have one of those weird contracts (like the one Crowder was offered by Ben Shapiro) whereby contract violations are 105% or 110% of salary?
Fox News seems to be doing everything it can to drive away its MAGA viewers. Maybe their happy being the Dumb, Jeb Bush lovin', Boomer Channel.
I wrote it a couple of weeks ago- they will not allow Carlson a broadcast/cable platform after going through all the trouble of getting him off of one. Twatter is a second-best option.
Another shit storm, by Lefty Mark:
Blogger Mark said...
The right wing talking point attempting to claim Dominion demanded this in the settlement seems to have gone out last night, given the brownshirts are all speaking in lockstep today.
Facts and proof not needed by the Altbillies.
Thank you for this demonstration of your intellect.
"Fox has no damages from Tucker’s breach."
Sure they do. Have you seen NYC Juries lately? The Democrats hate Tucker but own the justice system and will use the Court to uphold any non-competition clause.
But, Fox wants money, so Elon can payoff any settlement.
Elon can buy Tucker his own Network, and we all live happily ever after.
Fox canceling Tucker. Very consistent with it's recent direction.
I’m no contract lawyer, but wouldn’t it be constructed so Tucker has to do x, and Fox pays him? If Fox changes what x is, isn’t that a breach, if that remain silent case is not in the contract?
If I sign a contract to did ditches for one year, and cannot dig ditches for any other entity, then refuses to allow me do dig ditches, but pays me every month anyway. I'm stuck until the contract expires.
Since Elon made clear that Tucker is just doing what anyone can do on Twitter, no contract involved, then that non-compete might have another flaw in addition to the one so many have pointed out: they rarely prevail in court because people have a right to work and speak. And of course Tucker's lawyer says Fox broke the contract not him.
But really, I encourage the lefties to keep posting their takes. Sally and Jim and Mark are so entertaining when they try to be clever! OMG they are straining their tiny brains to smear Tucker and defend Fox. What could be better! Liberal Fox haters defending Fox! I don't know how Althouse gets these people to self identify but keep it up. It's working.
he could even argue defamation/rape by Fox grabbing him by wedgie > after all it will be in NYC
"Terminated, with pay."
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willingly can he not actuarially? amortize[?] like in lottery winnings lump-sum back to Fox
The could very possibly open up the settlement agreement to public scrutiny. This might also help Carlson sever his contract with FNC by being able to claim that they breached it.
Should be great fun.
==========
can all this be doen in New Yawk minnit? in time for 2024 etc.
That leaves them money damages, and here I think Tucker (and his new platform or sponsor) can hold their own. A big damage award would send a perverse signal: “We had this business asset worth tens and hundreds of millions of dollars, it was this guy Tucker and his take on things, his style, his guts etc —and it’s been taken from us. Well, actually, we destroyed it; took him off the air. But that’s not our fault: he was…too good! His ratings were amazing, so we had to fire him! Really!”
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vaguely and perversely reminiscent of Howard Roark getting hired to design contract for Monadnock Valley Project in the novel The Fountainhead
Putting together comments from Owen and McCullough - an injunction is equitable relief, which requires clean hands. And pulling Carlson off the air hurts that, and doing it to settle it, kills any claim of Clean Hands. However, there may be some clause in the contract that tries to counter this, by, for example, allowing for injunctive relief, etc.
I like the point that the actual damages were caused by FNC. They are going to have a hard time proving real damages. Again, there may be some clause in the contract similar to liquidated damages. But I think that the reality is that Carlson could easily afford to lose his salary over the next two years, by how much he could make going a different route, as Joe Rogan did. He may exceed what Rogan got to jump because he has the FU to FNC factor going. I don’t, as a general practice sign up for anything that costs extra, including podcasts, Substack, etc. But I would sign up for Carlson. Not to watch him all that much (though I did enjoy him when I did), but as a FU to FNC. Can he beat the $200 million that Rogan made jumping to Spotify? I think it very possible.
Jim5301--it is probably better if you stay out of the subways.
It would be safer for everyone.
I can see where going to CNN or the like would be competing. Another tv/cable network. Probably covered by the terms of the contract and I agree with others above about the sanctity of contracts. Standard caveats about fox not breaching etc.
But what if he goes to a non cable /TV platform like rumble or oan. Is that prohibited by the contract?
What about tweeting, is he allowed to do that? Does his contract apply any limit to how much he can tweet?
Suppose he gets paid by Twitter or someone for tweeting. Contract violation? Suppose he does not get paid but does it to keep his brand alive, is that permitted?
We've not seen the contract so can't know. But it is interesting to wonder how prescient the fnc lawyers were 4-5 years ago.
John Henry
Ann,
I find your fascination/fixation on Tucker Carlson/Fox News intriguing. You do realize it both easier and in your best interest to just ignore it all, right?
I quit watching cable news shows years ago and am now a much happier, less agitated person. They're whole schtick is to fish you in and and then keep you in the live-box.
"Enigma said:
It's akin to the French Revolution"
Yup. What we have now is unsustainable. The question that needs asking is, how long before the levy breaks? Because make no mistake, it's going to happen.
Inspired by John Henry @ 12:50 and other commenters up the thread, I am trying to think how a noncompete could be written to block Tucker from reaching the public. First problem IMHO is that the world of broadcasting is changing very quickly and it would be very difficult to anticipate and describe every possible platform, channel, modality that functions like FNC. Your best guess at that set of modalities is likely to be obsolete very quickly.
Second problem is the complement: the more aggressively and widely you draft, the more likely your noncompete becomes unenforceable as an unjust barrier to saying what one thinks, at all, to anyone. Not just a bar against competing directly with established business interests; not just a promise not to violate confidentiality; not just a bar to disparagement;; just...speaking one's mind. That goes beyond fair bargaining and becomes tyrannical.
Suppose that "speaking one's mind" were done in the presence of a mere handful of people, say an interviewer or a panel or a seminar room. Say that those people weren't running a podcast business, not opening a new TV channel, but just posting (to their subscribers) frequent reports on what they had heard and thought in those conversations with Tucker: "Last night Tucker wanted to talk about Topic X. He was pretty passionate. Here's the gist of it. I was struck most by this idea or that new fact.."
Done right, could this mode of communication finesse the non-compete?
I think FNC v Carlson is high-stakes stuff. Stay tuned...
“The letter also alleges Fox broke promises not to settle with Dominion Voting Systems "in a way which would indicate wrongdoing" on the part of Carlson and not to take any actions in a settlement that would harm Carlson's reputation.”
Speaking of loathsome.
rcocean: "Fox News seems to be doing everything it can to drive away its MAGA viewers."
Yep.
On the "plus side", once the remaining conservative viewers are driven away from Fox by the Fox-ites the Fox-ites will have all the remaining Bud Light to themselves!
So Carlson thinks he can save Twitter and his new boss, Elon Musk.
Remember when Elmo, the Twitter Boss hit the nail on the head by accurately describing his business?
"Twitter is both a social media and a crime scene?"
I doubt if they can keep him from speaking for free, they can keep him from being paid. Remember, he lives in Florida now, right to work state.
Non competes are usually only enforcable if you resign - they aren't enforcable if you are sacked.
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