Last week Ray Epps filed a defamation suit against Fox News for coverage of Epps’ involvement in the January 6. The allegedly defamatory content in question concerned reporting from Tucker Carlson and Revolver News’ Darren Beattie that appeared on Fox News that suggested Ray Epps may directly or indirectly have been acting an asset of the U.S. government — in colloquial terms, that Ray Epps may be a “fed.”
As it turns out, a little-known song from the deceased rap legend Tupac Shakur holds the key as to why Epps’ legal theory doesn’t have a leg to stand on.
Warning: Explicit Lyrics:
What, you may ask, is the connection between the profanity laced rap song from the 90s and Ray Epps’ legal intimidation tactics against Fox News, Tucker Carlson, and yours truly, Revolver News? All shall be revealed — but first, we ask the reader to indulge us in a little table-setting to provide appropriate context.
The U.S. Government has a long and storied history of using agents provocateur in similar contexts. Epps’ behavior on January 5 and 6th was considered so egregious that he was one of the first twenty people the FBI included on its January 6th Most Wanted list. Epps had formerly served as the head of the Arizona chapter of the Oath Keepers — the most demonized and heavily prosecuted militia group associated with January 6th (whose vice president was outed as an FBI informant). Epps is the only person caught on camera, as early as the 5th, in Trump hat and camo, repeatedly inciting the crowd around him to go “INTO” the Capitol, and prefacing each exhortation with the expectation that he would probably “go to jail” and “be arrested” for such incitement.
But Epps wasn’t arrested. The DOJ was frothing at the mouth for people to make an example of, and for whatever reason it declined to charge Epps with trespassing or conspiracy to obstruct an official proceeding, both easy charges given his conduct and the standards according to which the DOJ prosecuted other, less high profile cases. Even stranger, former Oath Keeper Epps became the only January 6th participant that the New York Times wrote a puff piece on, 60 Minutes did a sympathy segment on, and Adam Kinzinger would defend. Bizarre, indeed.
Readers are invited to peruse the following video compilation and reflect on whether it isn’t strange that both the mainstream media and the DOJ have been bending over backwards to defend this individual, of all people.
The Ray Epps defamation lawsuit names Revolver News’ Darren Beattie as “the principal person driving the false story that Epps was a federal agent planted as a provocateur to trigger the Capitol violence on January 6th.” Furthermore, the lawsuit cites an appearance of Darren Beattie on Tucker Carlson Tonight as an example of its chief defamation claim, asserting that the “gist and sting of the broadcast, considered in its entirety, as communicating as a fact that Epps was a federal agent planted to encourage supporters of Donald Trump to go into the Capitol building.”
The reason the legal complaint has to resort to invoking the “gist” of the broadcast is that Beattie’s position was quite nuanced, and did not assert that Epps was necessarily in the direct employment of the Federal government. We encourage readers to watch the Tucker Carlson segment in question here.
This all raises a fascinating and important question. Assume for the sake of argument that someone had directly accused Ray Epps of being a federal agent. Would or could that legally count as defamation? After all, the core principle of defamation is the notion of reputational harm. It is important to recall that the January 6th protests, including the so-called “storming of the Capitol”, have been demonized by the Justice Department and the media as one of the worst domestic terror attacks in the nation’s history. From a general reputational point of view, given this context, is someone better off to be considered as an organic participant in a domestic insurrection or to have been acting in the capacity of an agent or asset of the federal government? Just to motivate our intuitions on the Epps case, it is hard to imagine that Epps would enjoy such generous treatment by the New York Times, 60 Minutes, and other mainstream outlets absent informed speculation that he may have some relationship with the government.
Abstracting still further from the Epps case, one wonders whether it can be considered legal defamation at all to suggest that someone might be in the employment of the federal government. Here, oh patient reader, is where the Tupac song comes into play. In the song in question linked above, Tupac accuses another individual “Haitian Jack” of being a federal informant — a “snitch” in slang terminology. On the basis of these lyrics, “Haitian Jack,” otherwise known as Jacques Agnant, sued Tupac Shakur’s estate (Tupac at that point had lost his life in a high profile Las Vegas shooting) for defamation. The defamation complaint hinged directly on damages associated with Tupac’s lyrics calling Jacques a “fed.”
In his complaint, plaintiff alleges that the above lyrics refer to him and, as understood by the general public, state that he “was working as an undercover federal informant” against Shakur in relation to the rap artist’s 1994 trial. (Id. ¶ 16) As a result of the lyrics, plaintiff alleges, he “has been unable to find employment commensurate with his training and experience, and has had his reputation destroyed in the community.” (Id. ¶ 19) He seeks $200 million in compensatory damages as well as punitive damages.
The counsel for Tupac’s estate contended that the allegedly defamatory statements at issue were not capable of defamatory meaning. In other words, they contended that accusing someone of working for the federal government may harm that person’s reputation with some, but it nonetheless cannot be considered defamation from the standpoint of law. Interestingly, the judge in the case, Michael Mukasey, agreed:
Here, plaintiff alleges that Shakur’s song “Against All Odds” falsely accuses him of “working as an undercover federal informant” and that, as a result of this accusation, he has suffered damage to his reputation and been placed in danger. (Compl.¶¶ 18-19) Even accepting that the statements at issue are false and caused plaintiff injury, however, plaintiff’s claim must be rejected. In order to be libelous under New York law, a false statement must hold the plaintiff up to ridicule or scorn in the minds of “right-thinking persons”; those who would think ill of one who legitimately cooperates with law enforcement officials are not such persons. Cf. Restatement (Second) of Torts § 559, cmt. e (1977) (“The fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.”)
To be sure, government agents acting in an official capacity have done atrocious things. One need not look into the history of the FBI, CIA, and other agencies — just look at how the national security community and even the Pentagon have utterly humiliated themselves institutionally by embracing far left politics and recklessly deploying their power domestically to target political opponents. Nonetheless, the judge in the case in question found that from the perspective of the legal system, working for the government as an agent, asset, or informant cannot, in and of itself, be considered defamatory. After all, in theory at least, working as an agent of the government is supposed to be a reputable thing, and is in any case in theory more reputable than organically and genuinely performing objectionable actions.
In the case of Ray Epps, it cannot be defamatory to say that Epps was encouraging people to illegally go into the capitol as part of some government operation, as opposed to saying that Epps acted organically as a genuine insurrectionist. And as mentioned above, widespread public speculation that Epps might be a “fed” in some sense has ironically helped his reputation, at least in the sense that it no doubt contributed to the fact that Epps in the only January 6 participant whom legacy media outlets like the New York Times and 60 Minutes will bend over backwards to defend.