The Tucker Carlson saga has lessons for all companies and employees

By Howard Levitt

A cautionary tale that texts, emails, WhatsApp chats and social media postings are forever

I have a good friend in Palm Beach whose home I recently attended for Passover Seder. Former CNN president Jeffrey Zucker has a home across the street from him and Laura Ingraham of Fox lives two doors away. Imagine the dynamic tension on that block!

This neighbourhood confluence came to mind with the news this week of the near simultaneous exits of Tucker Carlson from Fox News and Don Lemon from CNN — and yes, Virginia, this does relate to employment law.

My April 4 column, jumping off from the ski slope lawsuit against Gwyneth Paltrow, discussed how the reputational impact of a case is often worth dramatically more than the amount which a court could ever award. That is why the move to abolish nondisclosure agreements revictimizes the victims of sexual assault, who invariably recover far more from an employer desperate to bury the news of their calumny than their legal action would ever be worth in court. Often 10 or more times that amount. And every time a client who signed an NDA has ever suggested to me that they would like to publicize what occurred to them after all and I remind them that that would require paying back the monies they had received, they immediately lose interest.

Does anyone think for a moment that Dominion Voting Systems was worth the amount for which Fox agreed to settle the defamation case? But Fox, which according to the Wall Street Journal and reports let Carlson go over displeasure with emails and texts that surfaced during the case, likely understood that, among other tawdry material, a parade of those messages would do far more brand damage than whatever even an American jury might award.

And so, realizing that, Carlson is gone. His sometimes racist remarks were not enough to remove him from his pedestal as the highest paid news anchor in the world. But apparently his even more vicious texts and emails, which were about to be the day-to-day fodder of a very public trial, were enough both for Fox to say uncle in its legal action and also to decide that Carlson was not worth keeping around.

Another legal action, from former producer Abby Grossberg who alleges she endured misogynistic and antisemitic comments while working on Carlson’s show, also would have been even more embarrassing to Fox if he had remained.

I have written previously that an employee’s damage to their employer‘s brand can be cause for their discharge, and even, if not quite cause, good reason for the employer to exit an employee.

But the Carlson saga is a cautionary tale for all of us, that texts and emails, WhatsApp chats and social media postings are forever. And if you don’t want what you post to appear in this column or worse, on this paper’s front page, think five times before posting it.

Also remember that crisis management firms such as Navigator make a very good living protecting employers from the consequences of their own perfidy (or just carelessness). This lesson is true for junior employees, but is far more true for C-suite executives, whose actions are seen to be, and legally are, that of the corporation. Such executives therefore can more readily be fired for cause if they conduct themselves in a fashion which damages their employer’s brand.

Also of key significance in the Dominion-Fox Imbroglio is that an action by a third-party litigant, which was not suing Carlson, in this age of electronic discovery, will result in the legal production of texts and emails suddenly being disclosed to potential public gaze in litigation. And the employee whose emails get produced may have had little to do with that litigation.

Now, for my friend’s neighbour across the street.

Don Lemon of CNN was ousted the same day as Carlson, a few months after he was accused of making misogynistic comment on air. Again, another media empire decided that it could not tolerate a host who was potentially toxic to its viewers or advertisers.

It is not only public facing companies dependent upon the retail public which are at risk. Any employee in any company who behaves in a matter inconsistent with how that employer wishes to be seen by its customers, suppliers, government, regulators, or other employees may have embarrassing emails suddenly produced in unrelated litigation and hurriedly dispatched.

And as for what will befall Lemon and Carlson, perhaps they’ll land on a network together where they can coexist like Zucker and Ingraham do in Palm Beach.