Lawsuit Against Fox for Its Coronavirus Coverage

is apparently based on constitutionally protected expressions of opinion.

|The Volokh Conspiracy |

The San Diego Union-Tribune (Ken Stone) reports:

An obscure Washington state group has become the first in the nation to sue Fox News over its coronavirus coverage, asking a state court to keep the cable network from airing false information about the pandemic….

[The complaint] seeks an injunction to prohibit the conservative-leaning outlet from "interfering with reasonable and necessary measures to contain the virus by publishing further false and deceptive content."

I read the Complaint (Wash. League for Increased Transparency & Ethics v. Fox News), and watched the apparently relevant videos, and I'm quite confident the lawsuit is going nowhere. Certainly the injunction request is inconsistent with First Amendment law, and the other claims (for violations of Washington's consumer protection law, for the intentional infliction of emotional distress, and seeking a declaratory judgment) are losers as well.

The Complaint unfortunately doesn't offer much details about exactly what statements it claims misrepresent matters. It does refer to Trish Regan's March 9 statement, but I watched it and it seems to express her opinion about the media and the Democrats' criticisms of President Trump's handling of the coronavirus situation. (She doesn't buy those criticisms.) She's not making a factual assertion that coronavirus is a hoax or isn't dangerous.

The Complaint also refers to a Sean Hannity March 9 segment, apparently the one where he said, "This scaring the living hell out of people—I see it, again, as like, let's bludgeon Trump with this new hoax." But in context Hannity seems pretty clearly to be expressing an opinion as to the magnitude of the danger, not denying the existence of the danger:

SEAN HANNITY (HOST): We gotta be very real with the American people, I don't like how we're scaring people unnecessarily. And that is that unless you have an immune system that is compromised, and you are older, and you have other underlying health issues you're not going to die 99% from this virus, correct?

[CONGRESSMAN] DOUG COLLINS: That is correct Sean, it's good to be with you again.

HANNITY: Alright so that's the point, I mean they're scaring the living hell out of people. And I see I seeing them again as like oh, okay, let's bludgeon Trump with this new hoax.

Even the 99% number, it seems to me, is likely an opinion, because in context it is a speculative prediction about a clearly uncertain subject. But to the extent it is a factual assertion, it might well be correct (though, again, we can't be certain): The death rate for people who are not "older," who lack "underlying health issues," and who don't have a "compromised" "immune system" likely may well be under 1%, even if they get infected.

Now one may well argue that Hannity's tone was wrong and unhelpful:  Perhaps around March 9 it would have been helpful for people to be more concerned about the danger rather than less. But that just reflects that this is a lawsuit over opinions, and the First Amendment precludes holding public speakers liable for their opinions. (Speech by doctors or other professionals to their own clients may lead to malpractice liability, even if it's an opinion, but that doctrine has never been applied to those who speak to the public at large, rather than to specific clients.)

Could there be liability for a media organization's (1) factual assertions that are (2) false when (3) the organization knows they are false or likely false and (4) some listeners rely on them and act physically dangerously as a result? Almost certainly negligence wouldn't suffice (see Winter v. GP Putnam & Sons (9th Cir. 1991), and the cases it cites). But what if there is knowledge of falsehood or likely falsehood (often misleadingly called "actual malice" by courts and lawyers)?

That is an interesting question: Obviously, if the opinions are about a particular person, and they just damage the person's reputation, that could lead to a successful libel lawsuit even when the person is a public figure (assuming elements 1, 2, and 3 are satisfied). One could argue the same should apply when the harm is not to a named person's reputation, but to people's health more broadly. On the other hand, in U.S. v. Alvarez (2012), the Stolen Valor Act case, five Justices broadly agreed that

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech…. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law.

(That's from Justice Breyer's two-Justice concurrence, but Justice Alito's three-Justice dissent took the same view, adding "The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth." And given the logic of Justice Kennedy's four-Justice plurality, I doubt that any of the Justices would have disagreed.) I think it's likely that the Justices would take the same view about statements about the physical and life sciences, and about medicine.

But as I read the Complaint, the Washington lawsuit against Fox News doesn't implicate the question, because the statements it alludes to are expressions of opinion, not statements of fact, much less false statements of fact made with knowledge that they are false or likely false.

NEXT: What Percentage of COVID-19 Patients Are Likely To Die?

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  1. In my opinion, the lawsuit reveals far more about the plaintiffs than Fox News. (For the knee-jerk reactionaries: I don’t watch Fox News, and I am way past tired of the silly “Fox News is conservative” boilerplate that we hear so much about. I intensely dislike huge media conglomerates, no matter what patina they possess.

    1. My knee-jerk reaction to your comment is …. where’s that damned closing paren?!?

    2. It’s actually worse than that. Far worse, and more scary.

      This is the belief that those who deny Global Warming should not only be silenced but incarcerated — it comes from the Circa-90’s belief that only correct speech should be permitted to be uttered.

      The Wuhan Virus death toll is all based on models, just like global warming, and what Sean Hannity was doing (which I’ve heard him do on his radio show) was questioning the accuracy of the model. He was presenting a competing model and presenting the facts in support of his model.

      Hence this is an attempt to prevent anyone from questioning the “official” predictive model or to question the facts upon which it is based. Just like with the Global Warming hoax.

      Yes, the Wuhan Virus is killing people — but we do NOT know what percentage of those who have it actually die because we don’t know what percentage of the population actually has it. All we have are guesses — perhaps educated guesses, but guesses nevertheless — and this is like those who wished to execute Galileo Galilei for saying that he thought the earth revolved around the sun.

      Hannity was presenting a risk-based model (which is officially accepted) and using that to state that the majority of the public isn’t going to die from the Wuhan virus. The “99%” was hyperbole to make his point.

      1. Remember that it is only a model as to how badly this will affect the US — as it hasn’t happened yet.

        And there are competing models indicating that the psychological damage from the social isolation and unemployment will cause (over time) more deaths from suicide than the Wuhan Virus. That’s a model as well, also supported by facts, and what the Left doesn’t want to happen is a debate over the merits of the various models.

        Nor the likelyhood that the Wuhan Virus came from the Wuhan Institute of Virology. Remember that bats are not native to Wuhan…

      2. The scary part is fake “Drs” and propaganda figure heads like Hannity pushing narratives that have proven false time and time again. And its now literally killing people. That doesn’t make this lawsuit valid. But it does tell a lot of about individuals like you. And none of it good.

        1. Perhaps the definition of “literally” eludes you. The detestable Sean Hannity, and his “false narratives” have killed no one. As for false narratives that might “literally kill”: Nancy Pelosi on Feb. 24 inviting San Franciscans to come to Chinatown with her, or Bill DeBlasio telling New Yorkers on Jan. 26 and again on March 3 that prolonged exposure was the only way to contract coronavirus, or saying on Feb. 2 that New Yorkers should go about their daily lives, or on Feb. 9 attending the packed Lunar New Year celebration, or on Feb. 13 telling his city that the virus shouldn’t stop anyone from going to Chinatown and that the risk of infection was low, or on March 11 saying he wasn’t advising New Yorkers no to go to restaurants or do other things — and not closing schools.

          See, this works both ways. Hannity wasn’t the only dissenting voice, nor was Fox the only network to downplay the matter.

          1. If we are going to hold people accountable for deaths, let’s start with almost all politicians of both parties, for the intrusive, development-slowing burdens heaved onto the economy. Without it, we might be years ahead, and thus saving more lives.

          2. As to information that killed people, the ChiComs initially stated that the Wuhan virus was not contagious. Seriously.

    3. Even though the plaintiff’s argument may not be strong enough to succeed, their cause is valid. A ‘reasonable person’ believes and expects the news to be accurate and true. We do not watch news for opinion unless there is a panel for example expressing their opinions. News program hosts have an obligation to be truthful. More often than not, some Fox News personalities spin vital information to better protect the President. If lives are at stake and not elections then there should be consequences.

      1. re: “News program hosts have an obligation to be truthful.”

        According to whom? Certainly not according to anyone in the news media. That’s the whole premise of the Columbia School of Journalism position – there is no “objectivity”, everything is subjective and opinion cannot be separated from fact.

      2. Define truth.

  2. But in context Hannity seems pretty clearly to be expressing an opinion as to the magnitude of the danger, not denying the existence of the danger

    I’m similarly confident that this case is a non-starter, but how is the existence of danger a fact, and the magnitude of danger an “opinion”? Surely they are both facts?

    1. Then why does everyone keep changing predictions? Perhaps not exactly “opinion” but rather views about something poorly understood by all.

    2. Predictions tend to be opinions, I’d think. Of course, when the future arrives, only one prediction will prove to be right, but that doesn’t mean predictions aren’t opinion at the time they are made.

      Fact: Summers are usually hotter than winters
      Opinion: This summer will be a doozy
      Opinion: This summer will be mild

      If you could sue every Wall Street prognosticator when their predictions proved wrong …ka ching!

      1. Absaroka, not saying this is what the Fox suit is about, but hypothetically, is it your view that arguing that people should maintain normal activity, and avoid social distancing, is predicting the future?

        1. “maintain normal activity, and avoid social distancing”

          Is that what Fox News espoused? I didn’t see that in the article or in any of the comments?

          1. A regular part of Fox News’ coverage has been to cite how many Americans are infected with and die from the seasonal flu each year. Those numbers have then been contrasted with the coronavirus death toll, which without context might have left viewers with the impression that there wasn’t much cause for concern.
            —————–
            “This is yet another attempt to impeach the President,” declared Fox Business host Trish Regan Monday night next to an on-air graphic on the screen that read “CORONAVIRUS IMPEACHMENT SCAM.”
            ———————
            “I’m sure in the end the mob in the media, well they will be advancing their new conspiracy theory and their newest hoax,” Hannity said at the top of his program, later adding, “the coverage we are seeing from the media and the mob is beyond despicable and political.”
            ——————
            Dr. Marc Siegel, a Fox News medical correspondent and professor at New York University’s medical school, cited data from one country — South Korea — to suggest the mortality rate might actually be much lower than what the CDC and WHO have stated.

            https://www.cnn.com/2020/03/12/media/fox-news-coronavirus/index.html

            1. Do the right-wing fools and knaves who point to morbidity and mortality figures for seasonal influence to minimize the outsized threat of the current covid19 pandemic realize that to the best of our knowledge seasonal influenza confers no immunity against covid19, and thus in all likelihood the morbidity and mortality we would experience from seasonal influenza would remain unaffected, the consequence being additive effects rather than protective or offsetting one. While people are dying from covid19, they are only being spared fatal heart attacks that might have been but for the covid19. And those who experience heart attacks and other serious diseases acquiring hospital care at this time, may not get a bed on the wards, let alone an ICU one, because hospitals may be overwhelmed in terms of beds, equipment, supplies, doctors and nurses, etc.

              Dr. Marc Siegal’s medical opinion for the benefit of gullible Fox viewers in this matter is as meaningful as Rudy Guilaini’s legal opinions for the benefit of the Fox crowd and Donald Trump.

            2. “This is yet another attempt to impeach the President,” declared Fox Business host Trish Regan Monday night next to an on-air graphic on the screen that read “CORONAVIRUS IMPEACHMENT SCAM.”

              This is in reference to starting the creation of committees to rip through the administration for handling of this.

              Now if it were to provide oversight of it because of the magnitude of deaths, of economic impact, of impact on freedom and rights — any one of which would be sufficient, much less all three — that would be fine. But as another cover story to rip up a political opponent?

            3. Can Sarcastr0 prove any of those four things false?
              The first involves the presentation of (I presume) accurate statistics.
              The second is an accurate statement — there *are* people talking about trying to impeach him again over his actions here.
              The third is clearly an opinion.
              The fourth is (I presume) accurate data from ROC.

              All are true. What inference people may draw is another issue, but they are all truthful statements.

        2. How is ” arguing that people should maintain normal activity, and avoid social distancing” any different from advocating for “Sanctuary Cities”? In both cases, one is arguing against complying with a Federal regulation that one disagrees with — and yes, I know that Wilson incarcerated those advocating against the draft, but that was wartime.

          Fox isn’t saying it, but wouldn’t saying “social distancing is bullshite” be protected speech? While one could go to Fox’s advertisers and ask why they are supporting a network that says such things, what power does (or should) the state have to censor such a statement?

          How is it different from the statement Cohen wore into the courthouse?

      2. At most one one is correct. But wait. numbers have associated errors. So one is 1 sigma above the measured value and one is one sigma below. And one is at the measured value. Three correct predictions.

    3. Depends. Global warming is a fact. The magnitude of the danger is an opinion. If you treat the magnitude of the danger as a fact, then you have a whole lot of media organizations that have made false statements based on past statements of the magnitude of the danger, compared to present circumstances.

      1. No, it is not a fact — the planet has been warmer in the past. Icy “Greenland” was also known as “Wineland” because of all the grapes then growing there — where glaciers now reside.

        Conversely, the prediction of a “Nuclear Winter” was wrong because of some serious errors in the underlying model. Yes, it definitely would affect the climate but no where near the way the model predicted.

        1. Has nuclear winter actually been tested?

      2. Since you broached the subject of global warming and since this thread is about libel laws .

        There has been a small but positive development in the Mann v Styen/CEI/NR defamation lawsuit. The trial court is now on its 3rd judge. The 3rd judge issued a ruling in oct 2019 on a motion by plaintiff (Mann) to compell discovery of Documents from Steyn.

        Based on her ruling,- it seems we now have the first judge involved (including the appeals court judges) that actually understands libel law.

    4. “I’m similarly confident that this case is a non-starter, but how is the existence of danger a fact, and the magnitude of danger an “opinion”? Surely they are both facts?

      “Smoking can cause lung cancer” is a fact.

      “Your smoking cigarettes will cause your death” is an opinion.

      “You will die on November 11, 2023 because of the cigarette you are smoking right now” is a wild speculation.

      A lot of the stuff the media is reporting are wild speculations, and some people are starting to ask why we sabotaged our entire economy on the basis of such wild speculations.

      1. “Your smoking cigarettes will cause your death” is an opinion.

        To the extent that that should be read as “certainly cause your death” it is an incorrect statement of fact. To the extent that it should be read as “probably cause your death”, it may well be a correct statement of fact. What it is not is an opinion.

        1. “To the extent that it should be read as “probably cause your death”, it may well be a correct statement of fact. What it is not is an opinion.”

          I don’t know if that’s true. If it’s said about someone that is known to engage in other high-risk activity, then it might be an incorrect statement of fact. But it’s probably an opinion.

          1. Even if the person is not engaging in any other risky behavior, to claim that ““Your smoking cigarettes will probably cause your death” is not only an opinion but (in my opinion) a bad one. As far as I know even a smoker with no other risky behavior is less likely to die of smoking than of something else.

  3. That is an interesting question: Obviously, if the opinions are about a particular person, and they just damage the person’s reputation, that could lead to a successful libel lawsuit even when the person is a public figure (assuming elements 1, 2, and 3 are satisfied). One could argue the same should apply when the harm is not to a named person’s reputation, but to people’s health more broadly.

    Not sure I see how that applies. This isn’t about seeking damages, is it? It looks like a straightforward demand for prior restraint, allegedly in the public interest, during a public emergency. If I wanted to find a comparison more on point, I might suggest a public speaker, in the midst of a riot, urging the rioters to commit more destruction. If authorities in such a circumstance restrained such a speaker, would anyone say it was a free speech problem?

    Also, seems like there is wide agreement that peaceable assembly under present circumstances is right out, with the exception justified on similar public safety grounds. I get that many folks think it is flat wrong that that is happening. But what legal reasoning justifies heavily burdening assembly while holding speech sacrosanct?

    The notion of restraining Fox does leave me queasy. I think it would be a huge mistake as a matter of policy.

    Not sure I see the legal argument against the restraint though, unless you are willing to argue by questioning the existence of the emergency, or minimizing the emergency as a less-than-existential crisis. Do you say you would (or should) win the case on 1A grounds if you conceded the pandemic was an existential crisis for the nation—or at least for tens of thousands of its citizens—and stipulated that Fox had repeatedly published falsities which aggravated the crisis?

    1. “stipulated that Fox had repeatedly published falsities which aggravated the crisis”

      So would the plaintiffs have to prove that the deaths will be worse than the economic fallout from the panic? Could Fox countersue and argue that the views of the plaintiff were no more supported than the views of Fox hosts? I have listened to and read plenty of epidemiologists who are saying that the flat out quarantine of everyone is not the best strategy.

    2. Seems you’re promoting censoring the press for “public safety” reasons. And when you do that, what’s the difference between us censoring the press and China censoring the press?

      1. Armchair, what is your view on civil libel? Is that censorship? If not, why not?

        One suggestion for an answer might be that censorship is administrative, and inherently arbitrary. That would be China.

        Judicial process uses evidence and preexisting standards about what is, and is not, protected speech. Libel, for instance, is generally not protected. I am not a lawyer, but I think I have been told by lawyers that dangerous false utterances during emergencies also may not be protected, depending on the facts.

        Do you suppose that if something is not in fact protected speech, it is nevertheless censorship for a court—not an administrative censor—to suppress it? Try to answer quick, because Nieporent will be along any moment to assert that even suppressing libel is censorship.

        1. Suppressing libel isn’t censorship?

        2. The government suppressing speech of course is censorship. It may be constitutional in some cases — though Lathrop continues to pretend NYT v. Sullivan doesn’t exist — but that doesn’t make it not censorship.

      2. Restricting movement. Outlawing gatherings. Shutting down businesses.

        Let’s toss censorship in there, too.

        Good…good. Use your aggressive feelings, boy. Let your unrestricted belief in the benevolence of government to wield emergency powers flow through you.

  4. Seems to me that Fox has a tailor-made defense in that no reasonable person would believe what they see on Fox.

    1. Ha, Ha, Krychek_2. I get where you are coming from. But there is a serious point there, about what frame of reference needs to apply when judging whether an assertion is an assertion of opinion, or an assertion of fact. What should the test be to determine the answer? I suggest the test, with regard to publishing, is whether a reasonable person would expect his assertion to be received as fact among a substantial portion of his audience, and made the assertion knowing that.

      1. Wasn’t this the successful defense used by some law school against a suit by some alumni that it had knowingly misrepresented the employment situation of its graduates?

        1. A federal judge dismissed a defamation claim against my broadcaster client after concluding the plaintiff’s reputation was so bad that nothing could diminish it.

          That case featured what was likely the most entertaining deposition (the plaintiff’s) I ever experienced.

    2. Hannity is a commentator, not a reporter.
      He explicitly is stating opinion, not the factual news.

      It’s becoming a moot distinction because so many of those who purport to report factual news commingle it with opinion, but Hannity was hired to state opinion and has been doing that all the years he has been at Fox.

      1. Hannity is an entertainer. Not a commentator. The problem is most of his audience doesn’t know the difference.

      2. “Hannity is a commentator, not a reporter.
        He explicitly is stating opinion, not the factual news.”

        That explains his relatively frequent “breaking news” features (a huge red ‘breaking news’ chyron followed by Hannity introducing a report ‘we have some breaking news for you . . . “

      3. It’s becoming a moot distinction because so many of those who purport to report factual news commingle it with opinion

        Two days ago, 5 minutes after the daily coronavirus briefing, the CNN host declared “Trump said he wouldn’t be wearing a mask even though he made it an official recommendation, because he doesn’t want to look silly wearing one.” With scary large BREAKING NEWS at the bottom of the screen. This was the second of two pure opinions she slipped out in those first minutes.

        Opinions are fine, but the pretense of a difference between opinion of a news event, and reporting on the news event itself are gone.

  5. This lawsuit is popular among certain people. For example, George Conway said, “I think I want to be a plaintiffs’ lawyer now.”

    I wonder if he’s proud to be stupider than Trump on first amendment issues.

    1. This is a nuisance lawsuit plain and simple, seeking prior restraint of the press.

  6. 1984 is supposed to be a warning not a model to emulate.

    1. You forgot the comma!

  7. An additional reason that the complaint is meritless is that the Washington League for Increased Transparency and Ethics does not have standing. While many people will, unfortunately, become infected by COVID-19 as a result of Fox News’ deplorable conduct, the plaintiff will not.

    That being said, I doubt the plaintiff filed suit in the hope of obtaining the relief sought. Rather, the plaintiff likely filed it because it is a cheap way of getting publicity, which will be helpful in fundraising. The fact that this lawsuit is the subject of media attention means that the plaintiff already won. The plaintiff should be sanctioned because the courts should not used this way.

  8. How about a lawsuit against the media for creating mass panic?

    1. By truthfully reporting that this is a pandemic? I dunno…sort of like a Florida newspaper accurately reporting, “Massive hurricane coming tomorrow. Get the hell out of town, you idiots!” Yes, there will be mass panic. But based on the reporting facts, not on inaccurate reporting or flat-out disingenuous reporting.

      I think this is a bad case. First Amendment and all that. And I guess it’s not fair to blame Sean Hannity just because his brain-dead audience is stupid enough to believe what he says. It’s an opinion show, after all. And you should not be able to blame an opinion speaker just because his/her audience is too stupid to understand the difference between reporting of fact and defecating one’s opinion.

      1. “And I guess it’s not fair to blame Sean Hannity just because his brain-dead audience is stupid enough to believe what he says. It’s an opinion show, after all.”

        Especially since what he said was accurate, as has been pointed out above. But you do you.

        The reporting on this crisis has been terrible. Mainstream outlets are reporting bullshit non-stop. But it’s not just Fox News, and I don’t know if fox news is the worst.

        1. “We gotta be very real with the American people, I don’t like how we’re scaring people unnecessarily. And that is that unless you have an immune system that is compromised, and you are older, and you have other underlying health issues you’re not going to die 99% from this virus, correct?”

          That’s what Hannity said, according to the OP. Who has pointed out that any of that is true? Do you think that’s true?

          1. Which part isn’t true?

          2. That’s what a lot of people — including medical people, and at various outlets, liberal, conservative, and whatever — have said over the past few months.

            In fact — there’s a wonderful article by the BBC on just this issue:

            https://www.bbc.com/future/article/20200401-coronavirus-why-death-and-mortality-rates-differ

  9. I’m sure some judge will rule under the Orange Man Bad doctrine and find Fox guilty.

    It’s the way of the world in these days of Trump Law.

    1. I’m sure you’re wrong (as you usually are) and, in fact, zero judges will rule for any plaintiffs. In fact, I expect that most such cases would be disposed of quite quickly, via motions to dismiss.

      Will you have the integrity to come back and post, “Wow, was I wrong…sorry for falsely suggesting that judges would be be guided by the Constitution.”? (That’s rhetorical . . . of course you will not.)

      1. You couldn’t tell from the word choices that my statements were tinged with snark?

        Further if I were totally serious and not partially serious there are oodles and oodles of Trump Law cases that were decided on the basis of Orange Man Bad that could serve as precedent.

        1. Or, maybe, reasonable people can differ and judges are acting in good faith and yet somehow manage to disagree with you.

          Or, maybe Trump tries a bunch of illegal stuff.

        2. No judge would be able to successfully sue you for libel.

  10. Fox? I mean, there are many frivolous lawsuits to file against various media outlets regarding C-19. But Fox is near the bottom of the list. What other outlet was positive or neutral to the Travel Ban? That is the only thing that could have ever worked.

    1. Not in the timeline Trump started thinking about it.

  11. Damocles’ Sword of Truth would provide needed doxastic comittment to prognosticators, otherwise they’re just more than #FakeNews.

  12. Look, everyone knows Fox deliberately puts out false statements of fact. I think Eugene is trying to threat a needle here with thick rope. I also think that even if Fox admits as much, the lawsuit would still fail on First Amendment grounds.

    1. The all do. You have to more or less get your news about Trump from Fox, but turn the volume off when they talk about Democrats. Then switch to CNN for info about Democrats, and turn the volume off when they talk about Trump.

      1. Lazy, fact-free response. No, they don’t all do it.

        1. Remember the claim that Trump said people should go to work if they have symptoms? Remember the claim that Trump was contradicting the “experts” when the said that the fatality rate was lower than 3.4%?

          Just to name a couple.

          1. Were there any major media outlets that didn’t repeat the ‘masks only work for health care professionals, not normal people’ bit? That surely satisfies ‘puts out false statements of fact’.

            One could quibble that it wasn’t ‘knowingly’, but that’s kind of a cold comfort. I think I’d rather have them knowingly putting out a well intentioned lie than just being clueless enough to not spot the error.

        2. If you redefine “false statements of fact” as “stuff I don’t like/disagree with,” then sure, by definition they don’t all do it.

          [“Here’s a FACT-CHECKING site that SAYS they don’t all do it” in 5… 4… 3…]

  13. It’s pretty clear that many predictions about the future are not fact, they are considered opinion.

    There are a host of articles the media have put out in the past, especially regarding global warming, (and/or global cooling) which have predicted disaster and been…horribly wrong.

    Should these media organizations be sued for making false statements?

    1. All predictions about the future are about opinions, not about facts. Including supposedly scientific models about the future, unless they model planetary orbits, and even then, if you impose a sufficiently high standard for accuracy, they fail.

      Calling a pandemic a hoax is not a prediction about the future. In the midst of a provable and formally declared pandemic, It is an inherently dangerous assertion of fact—one which is potentially falsifiable. The question of interest here is not how the case would come out, but whether a lie of that sort, with the dangerous implications it carries, ought to be protected speech.

      1. Calling a pandemic a hoax is not a prediction about the future. In the midst of a provable and formally declared pandemic, It is an inherently dangerous assertion of fact—one which is potentially falsifiable.

        No, no, and no.

        A pandemic is a prediction about future infections. That people not yet infected will be is a prediction, not a fact. And the fact that a bureaucrat made the prediction (i.e. “formally declared”) may make it more credible, but still does not make it a fact.

        Once everyone predicted to be infected has been, it is no longer a pandemic. Hence a pandemic is, by definition, a prediction.

        1. Seriously, do you just make things like that up, figuring none of us can just look up what the word pandemic means?

          1. Know that “Dr. Ed” got his medical degree from the same institution that granted “Reverend Arthur Kirkland” his theology credentials. (See Dr. Ed’s history musings about how the Nazi Anschluss in ’38, which left EV struggling to follow.) You are correct that “pandemic” is no prediction, it is a statement of indisputable (except by true loons) fact that a deadly plague of covid19 is affecting countries around the world.)

            [Should I match my credentials (among them a Hopkins MPH and certification by the American Board of Preventive Medicine against Dr. Ed’s? I wouldn’t, but his dangerous crap should be countered.]

            1. You are correct that “pandemic” is no prediction, it is a statement of indisputable (except by true loons) fact that a deadly plague of covid19 is affecting countries around the world.)”

              I am merely attempting to point out basic fundamentals of quantitative research, the most basic being that “you can’t count your chickens before they are hatched.” You can predict how many you will have, with the right research model you can predict with considerable accuracy, but it is still a prediction.

              Likewise, you can predict the number of people who will be infected with the Wuhan Virus and you can predict the number of people who will die from it, with considerable accuracy if your model is correct, but it’s still a prediction until it actually happens

              Exactly what part of that isn’t true?

              So we then go to the research model, which is first based on what percentage of the population is likely to be infected. The first problem with that is that we have no idea of the percent (or actual number) of the population (any population) that actually is or has been infected. The only way to do that is to test *everybody* for both an active infection *and* for antibodies indicating a past infection.

              Or we can test a statistically valid model, as long as we control for selection variance. But it has to be a group representative of the population as a whole, and there are well-established statistical methods of what constitutes such a sample.

              What part of that isn’t true?

              Hence there is no way to determine morbidity or mortality as a percentage of the population without the denominator of the fraction — which you do not have.

              What part of that isn’t true?

              And while the qualitative researcher may say that “there are a lot of sick people in the hospital” and “I think there will be even more in the future”, those are both predictions. Unless you can somehow travel forward in time and do both ward & morgue counts, all you can do is guess.

              All you can do is guess because it hasn’t happened yet.

              Exactly what part of that is wrong?

              And while you can guess with considerable accuracy if your underlying presumptions are accurate, your variance can be extreme if they aren’t. This is basic statistics, and has nothing to do with how many medical degrees one has.

              Hence a pandemic is a prediction of near-future morbidity and mortality — of people who are not YET sick. Unless you have Divine knowledge, you have to admit that is a prediction.

              Not a fact.

              1. Now take two possibilities — that either 100% of the infected population goes to the hospital or that only 10% does (I’m using these numbers to keep the math simple).

                If 100% go to the hospital, then your curve is accurate and the morbidity and mortality numbers that you derive from it are also accurate. BUT if only 10% go — with the remaining 90% having minor symptoms — then you have to move the decimal point one place to the left in all of your estimates.

                AND if 90% of those infected do not wind up in the hospital, then places like NYC could already be at peak infection right now.

                That’s why not knowing the total infection rate makes it impossible to accurately predict the risk here — and hence to justify the draconian methods being employed to reduce it.

                1. And while I don’t have a string of medical credentials, I will cite two statistics which I believe to be accurate.

                  The death rate from the flu is 0.1%
                  The death rate of those tested for the flu is 3%.

                  Both numbers can be accurate if the population tested for the flu is not representative of the population that actually has it. Only testing the sickest people is a form of self-selection, a sampling error, and that’s how you can get variance like this.

                  And then there is the difference between how Italy and Germany are calculating their mortality statistics, with both being accurate, and you can see how this all is really nothing more than educated guesses.

              2. Exactly what part of that isn’t true?

                The part where you think “pandemic” is a statement about what will happen rather than a statement about what has actually happened.

                Exactly what part of that is wrong?

                The part where you think “there are a lot of sick people in the hospital” is a prediction rather than an observation about a present fact.

  14. Considering that this suit was filed in King County, Washington, where Seattle is the county seat, I wouldn’t be so sure it’s a non-starter.

  15. Fewer people, not less people. Though Prof. Volokh, a descriptivist (for fun, let’s just call him a usage anarchist), will roll his eyes at this correction.

    1. Prof. Volokh emailed me to ask where he wrote “less people.” All this time, I was afraid there’d be a typo in my comment (since spelling/grammar/usage correction posts almost always contain mistakes of their own, and Reason is a “no edit/delete” zone), but my error (the gods of language correction comments are unforgiving) was even worse: I spotted something that wasn’t there. Can I get away with blaming it on my supply of coffee running out yesterday (I had to resort to what I think is the Mexican version of Sanka, which was left over from my wife’s abuelita’s stay with us at least 5 years ago)? If not, I confess error and ask, once again, for an edit or delete option. My punishment is to binge watch Tales from the Loop with my sons today.

      1. You sir, win the internet today for integrity, as does the good Prof.

    2. Some extremist animal rights types claim the world would be better less people.

  16. I wouldn’t advocate shutting down Fox News for airing opinions that I happen not to like.

    What I would prefer to see is the lawsuit focus instead on the issue of false advertising. Individuals and companies advertising their products with false statements get shut down all the time and it is not a 1st Amendment issue.

    Fox News advertises itself as a news outlet. The pay lip service to “opinion based journalism.” What they are in fact is a Republican Party serving propaganda outlet pure and simple.

    It is not hard to find evidence that viewers consuming their product are in fact deceived into believing things are not true because they thought they were watching news and not a cult presentation.

    I realize that this argument is an uphill battle but it is better than the actual suit that was summarized.

    1. One could easily say the same about MSNBC or CNN.

      1. No, one can’t.

        1. So, you think Rachel Maddow isn’t the left wing parallel to Hannity?

          1. Do you think she is an organ of the DNC?

          2. Maddow is also an opinion person. But since she lies about 1/100th as often as Hannity, it’s hard for me to make a fair comparison.

            (In this context “lie” = make false statements either intentionally or without making even a minimal effort to ascertain the accuracy.)

            I see Maddow as far more comparable to Fox’s Britt Hume. He’s there to offer his opinion, he gets things wrong reasonably often, but almost never lies. I disagree with Maddow’s opinions quite often. But I almost never get the sense that she is trying to actively deceive her audience. When Hannity spends TWO MONTHS telling his audience that Covid-19 is not a big deal (esp vis-a-vis the annual flu), and then, in the last week, soberly tells his audience, “This show has always taken the coronavirus seriously.” . . . well, that is merely the clearest example of a flat-out lie.

            All it would have taken for me, would have been President Trump (or Hannity, et al) to say, “I made a mistake. I misjudged how serious the virus is.” And, for our president, to continue, “But I’m gonna make up for it now. Here’s all the ways we’re working now to save lives and help all Americans stay safe.” If these people would just have the integrity to admit that they had been wrong. That’s it. But as Dylan might say, “You might as well try and catch the wind.”

          3. Hannity is not an organ of the GOP,.I would know this, while you wouldn’t (being a listener to the radio show when I am driving while you clearly are not) because he is critical, often unfairly, of the GOP party establishment (even if he is a Trump sycophant).

            Take your partisan glasses off. Maddow is the left wing equivalent of Hannity, and say, Brian Stelter at CNN is the equivalent of Tucker Carlson.

            Maddow speaks to your pre-existing biases, as Tucker Carlson does mine. She is a partisan hack, who nearly had a break down on national TV when Trump won. Comparing her to Hume? Maybe, sorta. I will listen to what she has to say when I know Fox is shoveling me some pap. That said, I really don’t watch Fox much.

            I mean, I’m as partisan as the next fellow, but at least I have the wisdom to be aware of my biases. I think it comes from hanging around liberals all the time and having to not express my true opinions on most topics.

          4. mad_kalak, Maddow offers her opinions regularly, and sometimes unrestrainedly. Sometimes she would do better to tone it down.

            Maddow also uses factual reporting with far-above-average integrity. Plus which, she and her staff dig up more factual news on their own initiative than any other broadcast source in business today. I am not sure I have ever seen a broadcaster do better.

            There is no comparison with Fox.

    2. Most newspapers were created to serve as vehicles for the opinions of their editors or founders.

      1. Most folks, when you explain to them how virulent and biased the press was at the time of the adoption of the Bill of Rights don’t believe you. And yet they still adopted the Bill of Rights.

        For about two generations, the press was professionalized, though full of left-wing bias, they were kinda impartial. That’s all gone out the window, especially in the Trump era, but people have fond memories of Edward R. Murrow or something I suppose.

        1. That’s why, as a business move, the creation of Fox News was genius. The pervasive, left-leaning slant in mainstream TV news, AKA the news, was a regular diatribe of what’s wrong with America. A news show that didn’t run with left wing concerns but rather right wing ones, and didn’t blame America by knee jerk reaction, took right off.

          This wasn’t the case with news back in the days you pine for.

          Bias isn’t in the accuracy of the facts. It’s in the choice of stories to push out, over and over and over. Fox became the Benghazi channel for years because Hillary was the likely runner eventually. The problem is the left does not acknowledge this about other networks.

          1. “The problem is the left does not acknowledge this about other networks”

            Exactly. Just look upthread just a bit where Maddow is upheld as some great impartial journalist and Hannity is the house organ of the GOP.

            1. mad_kalak, you are missing my point, maybe not on purpose. I did not suggest Maddow is impartial. Like you, I do not think I know of an “impartial,” news source, now or in the past. Krayt’s point about taking a position by picking your stories is well made, and applies everywhere. It applied to me when I was in the newspaper business, as I acknowledged then to anyone interested enough to listen. I especially acknowledged it to may own staffers—as counterpoint—when I told them I insisted that every fact be reported forthrightly, and with perfect accuracy.

              Also, when you describe the founding-era press as, “virulent,” you accurately assess at least a large fraction. Not for nothing was founding era debate over speech and press freedom generally cast in terms of, “freedom of opinion.” When you read original documents referring to speech and press rights, “freedom of opinion,” is the term you find almost exclusively. Apparently, the more-specific terms used in the Constitution differ from that more-common usage only because the founders’ desired to define and distinguish two rights, a right of speech, and a right of publication.

              Thus, when you characterize my view by saying, “Maddow is upheld as some great impartial journalist and Hannity is the house organ of the GOP,” you are getting it wrong, because you mis-describe my actual grounds for distinguishing them. Those have little to do with a attributing fact to one, and opinion to the other. They both show opinion bias by picking stories. The distinction is based on the methods they choose to promote their opinions, and that is where distinctions about facts come in.

              Maddow is a great journalist because when she discusses facts, she does her level best to describe accurately the facts she chooses to discuss. And also because she has a gift for doing that. And because when she gets it wrong, she admits a mistake and corrects the record, typically immediately, but later if that proves necessary.

              Make it a point to notice. Maddow’s method, again and again, is to set the stage for controversial discussion by doing a lengthy factual introduction of an intended discussion topic. Often she plans to explore that topic with an interview subject who brings acknowledged expertise. Invariably, before taking the discussion further, Maddow turns to the expert and asks for corrections of any points she may have missed or mischaracterized in her introduction. Sometimes—surprisingly rarely—Maddow gets corrections from the expert, which she acknowledges, and respects in the ensuing discussion.

              Maddow’s ability to do that, time after time, across a wide range of subjects, sets her apart. Among broadcast journalists, Maddow seems alone in taking on long-form stories on a factual basis. The others have insisted forever that it is not possible to do that in the broadcast medium—and indeed it is extremely difficult. Too many print journalists say the same.

              Contrast that with Hannity.

              Hannity is the voice of Trumpism, not the voice of the GOP. The GOP, to the extent it still exists, is in thrall to Trumpism, and Hannity’s audience is a piece of the reason why. Hannity does not give a fig for factual accuracy, and cares less for consistency. He pleases his audience, maximally. If Hannity tells you X today, because it conveniences Trump that he say it, he will tell you not-X tomorrow, if that is what conveniences Trump tomorrow. That pleases Hannity’s audience. Never will Hannity acknowledge the shift in the winds, nor the motivation for the change. That pleases Hannity’s audience too.

              Maddow does not do that. She does not do that with Republicans, and she does not do that with Democrats. With Maddow, changes in approach get acknowledged, and explained, when they come up. Maddow wants viewers to know when she has changed her mind. Whether accurately or not, Maddow apparently expects her viewers to discern that a change in views is itself a signal of a changed factual understanding.

              It is merely factual, not invidious, to note that Hannity’s fans lack discernment. Hannity’s success despite mercurial methods proves they lack it. And chief among Hannity’s undiscerning fans is Trump himself. Trump is a narcissist who thrives on flattery, no matter how fulsome or overblown. For Trump, the only thing better than fulsome flattery, and overblown flattery, is more of the same, published. Knowing that, and catering to it, is the core of Hannity’s method. Alas, it has also become almost the sole subject of Hannity’s “journalism.”

              If you do not see all that as I describe it, then, please, take more time to watch Maddow. For myself, I have been watching more Fox. I concluded I needed to, because I found baffling the too-frequent disconnection from factual premises among Trump’s supporters—and especially puzzling their pervasive willingness to utter X today and not-X tomorrow—surprisingly in unison—without the slightest acknowledgment of any intervening change of either factual basis, or even of changed opinion. Based on my modified viewing habits, I conclude Hannity turns out to be a big piece of the explanation.

  17. Nothing (at least nothing I recall) concerning the Trump campaign’s nastygrams proposing censorship of political advertisements (in the context of a threat to revoke licensure), but a prompt and spirited defense of the Fox News position with respect to a similarly low-grade complaint.

    Just another day of right-wing sycophancy in the clingerverse.

    1. “Nothing (at least nothing I recall)…”

      “The fact that I am unable to recall Prof. Volokh’s criticism of Trump’s FCC comments proves that Prof. Volokh is a right-wing sycophant!”

      LOL, good one, Arthur!

      1. Did Prof. Volokh mention the letters the Trump campaign sent to broadcasters, seeking to censor recent campaign advertisements featuring recordings of Pres. Trump’s stupid statements with respect to the pandemic?

        Or are you just bleating pointlessly in an attempt to advance the conservative platform of bigotry and backwardness?

  18. Prof., respectfully, the plaintiffs knew this would go nowhere too, but they got what they wanted; publicity.

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