Tucker Carlson published two video tweets that, combined, garnered over 170 million views, far exceeding his Fox News audience. Fox News has taken notice of these videos and has sent a “cease and desist” letter to Tucker. I haven’t seen Tucker’s contract with Fox or the “cease and desist” letter, but my lawyer’s instinct is that Fox does not have a strong case.

Axios first reported news about the letter:

Fox News has sent a cease-and-desist letter to Tucker Carlson as he ramps up a competing series on Twitter that drew a combined 169 million views for its first two episodes, Axios has learned.

Why it matters: The contract battle between Fox and its former top host — who was taken off the air in April, after the network's historic Dominion settlement — has mighty repercussions for the conservative media ecosystem.

• With "Tucker on Twitter," Carlson and his growing production team are working to elevate Elon Musk's social media site as a news platform.

Details: The cease-and-desist letter has "NOT FOR PUBLICATION" in bold at the top. [Note: This means that Axios has seen the letter.]

What's happening: Fox is continuing to pay Carlson, and maintains that his contract keeps his content exclusive to Fox through Dec. 31, 2024.

• Carlson is making a First Amendment argument for posting on Twitter, and asserts that Fox has committed material breaches of his contract.

Harmeet Dhillon, who has often appeared on Tucker’s Fox News show, and who currently represents Tucker, is unimpressed:

My friend and client @TuckerCarlson will not be silenced — by the far left or by Fox News. Scoop: Fox sends Tucker Carlson cease-and-desist letter https://t.co/1vUCMoQXOa

— Harmeet K. Dhillon (@pnjaban) June 12, 2023

For all the members of Congress, culture warriors, “influencers,”@GOP officials — do you really want to air your views on a network that spits on its viewers, leaks oppo on its own talent, and even threatens former talent for speaking, for free, on @Twitter?! You have free will!

— Harmeet K. Dhillon (@pnjaban) June 12, 2023

Unless there are some unusual terms in Tucker’s contract with Fox, I suspect Dhillon is correct that Tucker “will not be silenced.” The contract probably has the following basic terms:

• Tucker will provide exclusive content for Fox News
• In return for that content, Fox News will televise Tucker every weekday
• Fox News will pay Tucker lots of money
• While Tucker is operating under the contract, he will not provide content to a competitor [a non-compete clause or covenant not to compete]

What the contract also includes is an “implied covenant of good faith and fair dealing.” Cornell Law School’s Legal Information Institute explained that the

Implied covenant of good faith and fair dealing (often simplified to good faith) is a rule used by most courts in the United States that requires every party in a contract to implement the agreement as intended, not using means to undercut the purpose of the transaction. The rule applies in the performance of a contract, not to the negotiation of the contract, and the rule applies to generally any contract automatically without being stated in the agreement.

By taking Tucker off the air, Fox went to the very heart of their agreement, which was that Tucker Carlson would have a reliably telecast platform on which to air his political opinions—opinions that millions tuned in every night to hear. In other words, on the limited facts available to me, I would argue that Fox violated the covenant of good faith and fair dealing, thereby breaching the contract and freeing Tucker from his obligations.

Axios says that Fox is still paying Tucker, but it’s not clear whether (a) Tucker is accepting those payments, (b) rejecting them, or (c) placing them in an escrow account pending the resolution of his dispute with Fox. If Tucker is accepting the payments, I would advise him to stop doing so.

Image: Tucker on taboos. Twitter screen grab.

In addition to seemingly violating the covenant of good faith and fair dealing, Fox’s position also may run up against the limitations most states place on non-compete clauses. It’s one thing to have an agreement saying that your chief widget guy, having learned courtesy of your widget lab how to make super-strong widgets, may not take that knowledge to a competitor. It’s another thing altogether to tell someone to “shut up.”

I assume that the contract between Fox and Tucker is governed under New York law, and New York does allow non-compete clauses. However, according to my cursory online search for authority about New York law (very cursory, so do not rely upon what I said as binding legal advice), it doesn’t like non-compete clauses. Trellis, an online legal research site, summarizes New York’s law this way:

It is well established that restrictive covenants that tend to prevent an employee from pursuing a similar vocation upon termination or retirement from employment are disfavored by the law. [Citations omitted.]

“Such covenants will not be enforced unless necessary to protect trade secrets, confidential customer lists or good will, or to prevent special harm to which the former employer might be exposed because of the unique nature of the employee’s services.” [Citations omitted.]

According to the same site, a court faced with a non-compete clause must consider the following five factors:

(1) the restriction must be necessary for the employer’s protection;

(2) the time must be reasonable;

(3) the geographical area must be reasonable;

(4) the burden on the employee must not be unreasonable; and

(5) the general public must not be harmed.

In this case, that list has interesting ramifications. Tucker’s current contract will only run out after the November 2024 election. If Fox silences him, stifling a unique and valuable voice commenting on America’s political scene, it will have violated his First Amendment rights, decreased the value of his brand, and harmed the public interest in the lead-up to an election.

As for the burden on Fox, Fox already cut its corporate throat when it silenced Tucker. Those who want to hear Tucker talk are not going back.

All in all, absent any specific knowledge about the contract, the parties’ specific behaviors, or the controlling law, my sense is that Tucker has the stronger case.