Lawsuit Against Fox News Claims Cable Television Is Unprotected by the First Amendment

This is the Washington state suit alleging that Fox News had distributed false information about coronavirus.

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I blogged about this lawsuit (Wash. League for Increased Transparency & Ethics [WASHLITE] v. Fox News) when it was filed last month; my view is that the suit is based on constitutionally protected expressions of opinion, and therefore barred by the First Amendment. But the plaintiff's response to Fox's motion to dismiss did much more than just argue that Fox's statements were factually false—among other things, it claimed that cable television channels just aren't protected by the First Amendment:

Fox cites to no Washington case or federal case which confirms that a cable television programmer/content provider has an independent First Amendment right when using a system owned and operated by a cable operator. Nor has it cited to a case that equates a content provider on a cable system to that of a newspaper or broadcast television station. In fact, the law is just the opposite: cable programmers, such as Fox is, have no such rights when using a cable system owned by a separate entity.

Denver Area Educ. Telcoms. Consortium, v. FCC, 518 U.S. 727 (1996) is instructive. There, the Supreme Court was asked to decide upon the constitutionality of certain provisions of the Cable Act which contained provisions requiring access to cable television systems for public access channels and restricted programming which "depicted sexual or excretory activities or organs in a patently offensive manner." The Court concluded that portions of the challenged provisions were constitutional, and others were not.

Justices Thomas, Rehnquist and Scalia concurred in part and dissented in part and filed a separate opinion. By way of a summary, these Justices stated that cable programmers using a private cable system owned by another have no independent constitutional right to speak through the cable medium as recognized by the progression of the law through a number of cases. Justice Thomas stated:

"We implicitly recognized in Turner that the programmer's right to compete for channel space is derivative of, and subordinate to, the operator's editorial discretion. Like a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted."

This statement is consistent with other cases which hold that First Amendment rights do not exist on private property. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (First Amendment rights not applicable to a shopping mall which is not dedicated to public use). In Lloyd, the court stated:

"We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. Here, the same is true: there is no evidence that any cable operator operating in Washington State has dedicated any portion of their cable systems to public use. Given this, noFirst Amendment rights exist on them."

There is no discernable difference between the cable systems operated by AT&T, Comcast, Spectrum and other cable operators and the owner of a shopping mall—both constitute private property. Further, Fox is not a "cable operator" under the Cable Act…. There is no evidence in this record that Fox owns and operates a cable service over a cable system in Washington State…. Fox … operates as a cable programmer as that term is used in case law as above cited. As such, it does not have First Amendment protections on the cable medium.

But this is flat wrong: Cable channels generally have no First Amendment rights against the private cable operators that choose whether or not to allow them, but they have full First Amendment rights vis-à-vis the government. (See, e.g., U.S. v. Playboy Entertainment Group (2000)). Indeed, that's the same as in many other media: The First Amendment doesn't protect me against Reason's deciding to kick us off their site (or even Reason's deleting posts it doesn't like, not that it's ever tried to do that). But the First Amendment does protect me against the government imposing liability on my posts (unless my posts fall within one of the standard First Amendment exceptions, such as the libel exception).

Book publishers have no First Amendment right to shelf space in privately owned bookstores, but they do have a First Amendment right against the government. (See, e.g., Bantam Books, Inc. v. Sullivan (1963).) The submitters of the political ad in New York Times v. Sullivan (who were sued together with the Times) would have had no First Amendment claim against the newspaper if the newspaper had rejected the ad—but they did have a First Amendment right not to be held legally liable for their ad. Likewise, lawsuits against cable programmers are subject to normal First Amendment analysis, even though a cable system's decision to eject a cable programmer wouldn't be, since the cable system isn't a government actor.

This is pretty basic stuff, and highlights, I think, how weak WASHLITE's lawsuit is. For more, read Fox's motion to dismiss, WASHLITE's response, and Fox's reply, which also discuss various other First Amendment arguments.

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  1. Sheesh! IANAL and even I recognized the lunacy of “Like a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted.”

    Dang, you gotta be clutching at non-existent straws when even I can see through your argument!

    1. I felt exactly the same way. I read the argument and the citation and thought, “I must be missing something here, as this case doesn’t say what they claim.” I re-read it a couple times before concluding, “No, it definitely does not say what they claim.”

    2. Did you notice that what you quoted and ridiculed is presented in the OP as language from Justice Thomas?

      Justice Thomas stated:

      We implicitly recognized in Turner that the programmer’s right to compete for channel space is derivative of, and subordinate to, the operator’s editorial discretion. Like a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted.

      1. You’re (shocking, I know) not understanding the legal issues. A newspaper reporter or tv programmer has no first amendment right as against the newspaper or cable tv system. That doesn’t mean they have no first amendment rights as against the government.

  2. That is an argument worthy of bad faith sanctions.

  3. The response to MTD appears to have been done by a different firm than the complaint. And the address of the law firm on the complaint appears to be a UPS store.

    1. The attorney who drafted the complaint appears to be running for state governor under the Green party ticket and owns a pot shop.

      Not to mention a big Bernie supporter.

  4. So this group is saying in Wash. League for Increased Transparency & Ethics [WASHLITE] v. Fox News is that a cable company could an organization such FNC that they will not carry your information unless you first clear it with us. Well that may not be a first amendment violation because the cable operator is not the government but the effect is the same.

    1. The left views Foxnews as evil and therefore it doesn’t surprise me that its activists truly believe the First Amendment doesn’t apply to it.

      1. Nutpicking again. These don’t stand for the left generally just because they hew to your cartoonish view.

        1. Whomever these nuts are, they are well funded enough to put together this legal challenge, eh, which shows that they are a little more institutionally supported than you want to think.

          Oh, and please, please, please, don’t tell us that the left *doesn’t* hate Fox News. There is a visceral dislike there as much as the right hates CNN or MSNBC.

          1. Devin Nunes is also well funded. Doesn’t mean I think his quixotic SLAPP suits are endorsed by conservatives everywhere.

            Oh, I think FOX has deeply screwed up America. Doesn’t mean I think we can put the toothpaste back in that tube.
            And certainly doesn’t mean I think dumb stuff like this is a good idea.

            Quit validating your ridiculous view of liberals with weak stuff like this; that kind of thinking is also screwing up America.

            1. Lawyers and lawsuits don’t come cheap, somebody with $ is making it happen, so it’s not as fringe as you think. People are keeping Nunes in office and contributing to his reelection campaign, likewise. Again, if it advances your argument, person X should be taken at their word, if it cuts against you, they are just a nut.

              I don’t think you get that politics is kinda like fashion. The committed wingnuts, the fringe types on both sides, they provide the energy and direction for the mainstream which is often adopted and co-opted. At one time, for example, Milton Friedman was fringe, and AOC would have been laughed off stage by DEMOCRATS. You’re like a guy in a shopping mall, wondering why on Earth someone would buy a product sitting there just because *you* don’t see a market for it.

              “To understand the workings of American politics, you have to understand this fundamental law: Conservatives think liberals are stupid. Liberals think conservatives are evil.”
              – Charles Krauthammer

  5. I would think that this would open CNN in particular to liability for its coverage of the Russian Collusion hoax.

    In any case, in the end, I suspect that FNC, CNN, etc are going to end up similarly positioned to where print media such as WaPo, NYT, etc stand in relation to the 1st Amdt.

  6. How lovely. Imagine all of the libel/defamation suits waiting to be queued up if NYT v Sullivan is held not to apply to cable media.

  7. Not being a lawyer myself, I am not going to try to untangle the legal postures. But the argument as presented in the OP (maybe the case documents are different) seems to me to be a bit to the side of what EV concludes. The argument seems to say that if a cable operator has power to accept or reject programming at pleasure, then the cable operator can be treated like a private publisher under the law, and be held responsible for content it elects to publish.

    Given how sure all the lawyers are, I’m probably wrong, but please explain why that is not what the OP says.

    1. A “private publisher” can’t be “held responsible for content” through a lawsuit and adverse judgment if that content is protected by the First Amendment. Fox News argues that the content at issue in this case was protected by the First Amendment, and thus that the complaint was not legally viable. WASHLITE, in turn, is arguing that content created for cable television is never protected by the First Amendment. As Prof Volokh observes, this is not correct.

      1. I just reread the OP. If it says what you say it says, about content created for cable television never being protected, I can’t find it. It seems to say very clearly that there is no 1A right to access the cable system. I don’t see more than that. Unless there is more support for EV’s headline in the legal stuff I did not read, I think EV dropped the ball on this one with his headline (but not in his comment), and you guys are just rolling along behind the headline.

        1. Stephen, nobody is perfect. So it is possible that Professor Volokh, one of the country’s leading 1A scholars, not only can’t read a legal brief but doesn’t understand the law. And it is also possible that Stephen Lathrop, with no legal training¹ and a long-documented history of misunderstanding the law, has gotten it right. But is that combination of things plausible? Or is it infinitely more likely that EV has not dropped the ball, and you just don’t understand what’s going on?

          ¹I mean actual legal training, not “This is what I think I gleaned from having been around a newspaper.”

          1. Nieporent, this should be duck soup for a sharp lawyer like you. Here is EV’s headline: “Lawsuit Against Fox News Claims Cable Television Is Unprotected by the First Amendment”

            Just show where in the OP that “claim” gets made.

            1. ” Fox … operates as a cable programmer as that term is used in case law as above cited. As such, it does not have First Amendment protections on the cable medium.”

        2. If it says what you say it says, about content created for cable television never being protected, I can’t find it.

          The quoted argument summarizes its conclusion by saying that Fox News “does not have First Amendment protections on the cable medium.” Not sure how much clearer they could make it for you.

          1. It would be much clearer without a headline which seems to say the opposite.

            I already acknowledged, right at the outset, that the body of the article straightens the problem out.

            Your own position above, “WASHLITE, in turn, is arguing that content created for cable television is never protected by the First Amendment,” seems to follow the headline, not the text. So you are walking it back. I’m glad to see that. It means my effort to get it straight was not wasted.

            1. The headline doesn’t say the opposite. It says the same thing. I really don’t see what you’re getting at.

  8. The argument is ridiculous that Fox News (or any other cable broadcaster) is not protected by the First Amendment but, hypothetically, if their claim was correct aren’t they suing the wrong group. Shouldn’t they have to sue the cable company as the “publisher.” (Which of course they can’t because they are protected by the First Amendment).

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