Free Speech

Washington Judge Rejects Lawsuit Over Fox News' Supposed Coronavirus Misrepresentations

|The Volokh Conspiracy |

From today's opinion by Judge Brian McDonald:

On April 15, 2020, WASHLITE filed a first amended complaint alleging that Fox violated the Consumer Protection Act …. The complaint alleges that in February and March 2020, hosts and guests on Fox's programs falsely described the coronavirus as a "hoax" and falsely minimized the threat of the coronavirus and COVID-19. According to WASHLITE, "[t]hese representations were deceptive because they caused consumers to fail to take appropriate action to protect themselves and others from the disease, mitigate its spread, and contributed to a public health crisis and a subsequent state wide shut down causing damage to businesses and the loss of employment by persons located in Washington State."

By way of relief, WASHLITE seek an order enjoining Fox from televising any misinformation regarding COVID-19, an order directing Fox to issue specific retractions of every false and/or misleading statement, and treble damages.

WASHLITE does not dispute that the speech at issue in this case involves a matter of great public importance. Instead, it argues that Fox, as a cable programmer, does not have the same First Amendment rights accorded to newspapers and broadcast television stations. According to WASHLITE, "cable programmers do not have First Amendment rights on the cable medium" and, therefore, Fox "does not have First Amendment protections on the cable medium."

These assertions do not hold up to scrutiny. Over 25 years ago, the United States Supreme Court held, "There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment." Turner Broad. Sys., Inc. v. F.C.C. (1994). The Court observed that, "[t]hrough 'original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators 'see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.'"

The case primarily relied upon by WASHLITE, Denver Area Educ. Telcoms. Consortium v. FCC (1996), does not stand for the notion that providers of cable news programs lack First Amendment rights. The Denver decision held that a statute authorizing cable operators to refuse to carry indecent programming on leased access channels did not violate the First Amendment. In the opinion, the Court continued to acknowledge the existence of "the First Amendment interests of cable operators and other programmers." WASHLITE's attempt to distinguish cable programmers from other media providers is not supported by the relevant caselaw.

In its briefing, WASHLITE also argues the First Amendment does not apply because "there is no First Amendment right to lie." The law on this issue is more nuanced than suggested by WASHLITE.

In United States v. Alvarez (2012), the United States Supreme Court held that the Stolen Valor Act, which made it a crime to falsely claim to be a Congressional Medal of Honor recipient, was unconstitutional under the First Amendment. In his plurality opinion, Justice Kennedy explained, "Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee."

In Alvarez, Justice Kennedy in his plurality opinion and Justice Breyer in his concurrence set forth examples of where narrowly tailored statutes properly allowed for civil claims or criminal prosecution based upon falsehoods. For example, Justice Kennedy noted that "[e]ven when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood."

The speech in this case involves matters of public concern that is at the heart of the First Amendment's protection, and WASHLITE does not explain how its CPA claim in this case might fall under the few categories identified in Alvarez.

Washington courts have previously rejected attempts to use the CPA to punish speech made by the media. In Fid. Mort. Corp. v. Seattle Times Co. (Wash. Ct. App. 2005), the Court of Appeals upheld the trial court's dismissal of a CPA claim against the Seattle Times based upon an allegedly false and deceptive mortgage rate chart published in the newspaper. In doing so, the court held "the quarterly rate chart is not paid advertising. It is a news article, and as such it is not published 'in the conduct of any trade or commerce.' It does not fall within those activities governed by [the CPA]."

In many of the United States Supreme Court's seminal First Amendment decisions, the motives for seeking to curtail or prohibit speech were understandable and could be considered righteous. Yet, as the Supreme Court recognized, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). WASHLITE's professed goal in this lawsuit—to ensure that the public receives accurate information about the coronavirus and COVID-19—is laudable. However, the means employed here, a CPA claim against a cable news channel, runs afoul of the protections of the First Amendment….

I think this is generally quite right, certainly as to the "cable television is unprotected" argument (see this post) and likely also as to the "false statements about epidemics are unprotected" argument (see this post). I also think the alleged misinformation on Fox's part consisted of expressions of opinion, not false statements of fact (see this post), but the judge's reasoning here made it unnecessary for him to decide that.

NEXT: The Pandemic Is a Reminder That Many Regulations Are Both Costly and Unnecessary

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  1. I see the problem.

    WASHLITE filed a first amended complaint

    Some intern read that wrong, and some lawyer didn’t double check!

  2. I don’t watch MSNBC so I am merely speculating, but if I had to guess people like Rachel Maddow were trumpeting this case — until the judge shot it down and now: crickets.

    1. Why stick to the facts when you can just speculate your way into going after someone else entirely!

      1. It took a couple minutes to find an MSNBC material where a host, in this case Brzezinski, suggested those broadcasters and their guests could be held liable for their misleading claims on the Coronavirus

        ““That’s malpractice,” she said. “That’s grounds for a lawsuit. People delivering the news are supposed to be giving facts, not fiction. The viewers are there to trust them. If they get poor information, or they are misled to believe they can’t get sick, and they get sick, exactly how is that not grounds for some sort of situation to arise? This is clear, and if anyone is trying to push against it, they are committing malpractice.””

        https://www.thenewcivilrightsmovement.com/2020/03/grounds-for-a-lawsuit-msnbcs-mika-brzezinski-calls-for-legal-consequences-for-fox-news-coronavirus-misinformation/

        Fact is though, places like MSNBC don’t want this lawsuit against Fox a success…then they would be on the hook too for the disinformation they peddle.

        1. NCTA — The Internet & Television Association and Reporters Committee for Freedom of the Press are backing Fox News in its efforts to dismiss a lawsuit filed by a public interest group over the way that the network covered the coronavirus crisis.

          “While all cable programming enjoys First Amendment protection, the constitutional prohibition against unwarranted governmental interference with programming on news networks is especially clear,” the organizations wrote in a proposed amicus brief. The NCTA includes parent companies of some of Fox News’ rivals, including CNN and MSNBC, while the Reporters Committee includes print and broadcast representatives on its steering committee.

          https://deadline.com/2020/05/coronavirus-fox-news-lawsuit-1202938672/

        2. Note, MSNBC host Brzezinski was specifically speaking about Fox News.

        3. Brzezinski? Deep cut, I presume.

          This is why speculation is preferred by many on here – it’s juicier. The fact that it’s fiction is not really a liability anymore.

      2. Any response to Mad Kalak? Coward.

        1. I give him the benefit of the doubt, maybe he’s offline eating dinner or something. I’m not going to take the time to see if he’s commenting on other threads though.

        2. Maybe put some more effort into posting, Flatulus. All I see from you is low-effort insults.

          m_k, your post only proves my point with Dark Night’s flight of fancy. You want to bring something like that up? Then do your research, You showsed it’s not hard, if perhaps yielding less fulfilling results.

          1. Well, it shows he wasn’t wrong, he judged MSNBC correctly by, *ahem* reputation alone.

  3. Has anybody seen the movie Used Cars (1980) with Kurt Russell. In the movie, Russell’s character is being sued by the bad guy for false advertising that there was a “mile of cars” for sale at his lot and he has to convince a judge that he really has a line of cars a mile long or lose his used car lot.

    This lawsuit is the real life hare-brained equivalent. The fellows suing Fox want to have the Court be convinced that Fox News is “real news” else they lose their station.

  4. ” WASHLITE’s professed goal in this lawsuit—to ensure that the public receives accurate information about the coronavirus and COVID-19—is laudable”

    It is not laudable.

    The problem with using the Cold War (1950’s) laws for this shutdown is that those were war-related laws with provision for “official information” and the related censorship of all other information. In wartime this is necessary not only to maintain morale but to prevent the enemy from learning important things (e.g. which bridges are destroyed and which ones aren’t).

    That same “approved information” mentality is coming through here — and WASHLITE’s goal is to prevent heresy. To prevent any questioning of the purported “experts”, to silence any dissenting voices.

    There are real questions about both this virus and what is being done in response to it. I think a dozen states are trying to affect the coming Presidential election, and the fear is that people like me may suggest that. The fear is that someone might say that the emperor is stark naked — *and* that everyone else will feel safe agreeing…

    1. Rush Limbaugh suggested this today — stating that the economy can’t recover while CA and NY remained shut down (I’d include MA) remain shut down, and hence they can hold Trump hostage for a bailout of their unfunded state pension plans, etc.

      Maybe true, to some extent, but I’m thinking that the jobs may shift to the Free States. Then it will be Rust Belt Part Deux — the taxpayers (both individuals and businesses) leaving while the aging/broken infrastructure and disfunctional urban communities remain. And I don’t think that the people who left will be enthusiastic about funding the states they left behind.

      1. Any times Republicans in Congress want to pass a law like, “States may not receive more than 110% of what they contribute, nor may states receive less than 90% of what they contribute…I know A LOT of coastal liberal states that will be in amazing financial shape, while a lot of conservative states will be racing each other to take advantage of Mitch McConnell’s brilliant “Let’s have states declare bankruptcy!” idea.

        1. OK, and when your plane collides with another one over “flyover country” — you’ll have about 2 minutes to reflect on why you might have wanted to fund air traffic controllers over “fly over” country.
          And then when people start poaching Bald Eagles on Federal land, or stealing priceless artifacts or something, you’ll wonder why there weren’t any park rangers. And then when a load of infected meat shows up, you’ll wonder why there weren’t any USDA inspectors at the packing plants.

          And then when some state says that they’ll leave I-90 shut down for a week or two because they can’t afford to plow it, and national commerce comes to a halt as a result, you’ll say?

          And then when the crazy militia movement starts getting going, and there is no FBI field office to look into things???

          THAT is what you don’t realize about the Red State’s Federal money — a good chunk of it is for stuff that the Blue States want (need) done — and less of it is for handouts than in the Blue States.

          So you’re flying over Wyoming — do you or do you not want ATC???

          1. A tip o’ the hat, Dr. Ed.

            Who is John Galt?

  5. Even if this case didn’t involve the first amendment, I still am very disappointed in everyone involved. Is it not enough that someone could be wrong? The plain simple “they were wrong”. No, they have to be evil liars who are fraudulently manipulating people.

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