The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lawsuit Against Fox for Its Coronavirus Coverage
is apparently based on constitutionally protected expressions of opinion.
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.
