They’re coming for the First Amendment: The target is Fox News and its coronavirus coverage

A significant constitutional legal battle, under the radar for the past two weeks, has now emerged into the open. On April 2, an obscure Washington state group, WASHLITE, filed a lawsuit in the Superior Court of Washington against Fox News and several additional media defendants. Among other demands, WASHLITE (Washington League for Increased Transparency and Ethics, a non-profit corporation) is asking that the court, in the words of Times of San Diego which broke the story on April 2, “keep the cable network from airing false information about the [coronavirus] pandemic.”

WASHLITE’s 10-page legal complaint alleges that Fox News broadcast false reporting about the coronavirus, including opinion commentary that the pandemic was a “hoax.” In particular, statements made by Fox News Channel and Fox Business Network hosts Sean Hannity and Trish Regan on March 9, it is alleged, “were deceptive because they caused consumers to fail to take appropriate action to protect themselves from the virus, mitigate its spread, and contributed to a public health crisis and preventable mass death.” [emphasis added.]

What took this story from the relative obscurity of a small number of legal and media publications to wider attention was Fox News’ 76-page motion to dismiss the WASHLITE lawsuit filed in the same Washington state court yesterday. A copy of the motion provided to this author shows the serious tack that Fox News is taking in response to this unprecedented legal challenge to its operations as a leading news and information provider.

Fox News published a news release on its web site yesterday announcing its legal defense.

The motion, filed today, asks that a Washington State trial court firmly and swiftly reject the claims filed by WASHLITE, an activist group seeking to impose a judicial gag order on FOX opinion commentary regarding the Coronavirus outbreak.  As explained in the motion, WASHLITE’s “claims here are frivolous because the statements at issue are core political speech on matters of public concern. The First Amendment does not permit censoring this type of speech based on the theory that it is ‘false’ or ‘outrageous.’ Nor does the law of the State of Washington.” Accordingly, the motion calls upon the court to dismiss as a matter of law WASHLITE’s misguided attempt to use a lawsuit to stifle Fox News commentary or the viewpoints of its hosts. . .

FOX News Media General Counsel and Executive Vice President, Lily Fu Claffee commented, “It’s Constitutional Law 101: the First Amendment protects our right to speak openly and freely on matters of public concern. If WASHLITE doesn’t like what we said, it can criticize us, but it can’t silence us with a lawsuit.”

In addition to other demands, the April 2 WASHLITE plantiffs’ lawsuit asks the state court to:

…adjudge and decree that the acts and practices [of Fox News] complained of herein constitute unfair and/or deceptive acts or practices in violation of the [Washington State] Consumer Protection Act.

Most notable is the lawsuit’s demand that the court enforce prior restraint on Fox News’s future reporting, demanding:

That the Court issue a temporary and permanent injunction. . .  prohibiting and restraining Defendants. . . [from] continuing or engaging in the unlawful conduct complained of herein, namely, falsely and deceptively disseminating “News” that the novel Coronavirus is a “Hoax” that is not a danger to public health and safety, or otherwise interfering with or undermining the legitimate control measures imposed within the State of Washington for the limited time period under which the pandemic is brought under control and until the pandemic is brought under control.

As a footnote perhaps unrelated to this case, in the Pentagon Papers case in 1971 the United States Supreme Court issued a landmark decision – New York Times Co. v. United States – that defended the First Amendment right of free press against a prior restraint order issued by the federal government.

Fox News’s motion to dismiss WASHLITE’s lawsuit, the one filed yesterday, begins with a succinct summary of the channel’s defense:

Plaintiff WASHLITE seeks a judicial gag order against Fox News for airing supposedly “deceptive” commentary about the Coronavirus outbreak and our nation’s response to it. But the only deception here is in the Complaint. Fox’s opinion hosts have never described the Coronavirusas a “hoax” or a “conspiracy,” but instead used those terms to comment on efforts to exploit the pandemic for political points. Regardless, the claims here are frivolous because the statements at issue are core political speech on matters of public concern. The First Amendment does not permit censoring this type of speech based on the theory that it is “false” or “outrageous.” Nor does the law of the State of Washington. The Complaint therefore should be dismissed as a matter of law. . .

This case presents a frontal assault on the freedom of speech. Fox’s statements are core political speech on a matter of public concern—how dangerous the Coronavirus is, and how society should respond to it. Under the First Amendment and state law, the truth or falsity of this type of speech must be resolved through free and open debate in the marketplace of ideas—not through burdensome litigation seeking to impose legal penalties on political statements that a jury might deem “false” or “outrageous.” Accordingly, the Complaint should be dismissed because it flagrantly violates the First Amendment. . .

The Fox News defense motion buttresses its legal arguments to dismiss the case with a 61-page appendix containing transcripts of Fox News and Fox Business Network programs hosted respectively by Hannity and Regan (which put the alleged “hoax” comments into context), a CNN program hosted by Anderson Cooper, and reporting in the New York Times, the Washington Post, and other publications and broadcasts.

A timeline for the disposition of this case has already been issued by the court.

Washington court’s schedule leading to a possible 2021 jury trial in the case of WASHLITE vs. Fox News et al

It is to be expected that a variety of legal experts will soon be flocking to the media to weigh in on the prospects for each side in this potentially significant case. Already, Bryan Sullivan, Legal Entertainment Contributor, had this to say in an article at Forbes on April 10:

Based on the statements made, and the subsequent departure of Trish Regan, WASHLITE does present a cognizable theory of liability. The question remains if the alleged wrongful actions of Fox News can be linked to a specific plaintiff’s injury, but some states’ consumer protection acts often don’t require such a causal link and only requires misconduct for civil penalties to be imposed.

Regarding the reference to Trish Regan, I reported on her departure from the Fox Business Network in an article for American Thinker on March 28. The article reports on Regan’s, and Sean Hannity’s, comments about the coronavirus during each of their broadcasts on March 9. Both programs have been cited in WASHLITE’s lawsuit.

Interestingly, Elizabeth Hallock, an attorney in Yakima, Washington, a Green Party candidate for Washington governor, and the owner of a marijuana shop called Sweet Relief, who filed WASHLITE’s original lawsuit on April 2, withdrew from the case yesterday after Fox News filed its motion to dismiss. At the time of the original lawsuit’s April 2 filing, she told Times of San Diego in an email “We’ll have time in discovery to siphon through what was presented on the [Fox News channel] network and how it was presented.” Also back on April 2, Arthur West, identified as the leader of WASHLITE, commented about Hallock “One good lawyer is worth a team of adequate lawyers. One good lawyer with a good case can beat an entire law firm.” Now that Hallock has left the case, the attorney of record identified in Hallock’s notice to the court of her withdrawal, a copy of which I obtained, is Catherine C. Clark in Seattle.

Where this story goes now is anyone’s guess. It could be a tempest in a teapot, or it might be something big. In any case, I can promise that I will be following developments and will report on the most important ones in the days ahead.

Peter Barry Chowka is a veteran journalist who writes about politics, media, popular culture, and health care for American Thinker and other publications.  Peter's website is  Follow Peter on Twitter at @pchowka.

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