In a lawsuit filed by a nonprofit group, Washington League for Increased Transparency and Ethics (WASHLITE), Fox News has been accused of violating Washington State’s Consumer Protection Act by falsely stating in February and March broadcasts that the novel coronavirus was a hoax, downplaying the crisis in a way that potentially undermined efforts to slow the spread of the disease. While many might dismiss this lawsuit in the same manner that Fox News has, it presents interesting questions of law for news outlets.
The lawsuit, originally reported on by the Times of San Diego last week, is proceeding under the Washington State Consumer Protection Act (CPA), which provides: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” That Act permits injunctive relief and payment of a civil penalty for violations. Notably, the Act has a reference to television broadcasting stations saying that it does not apply to those entities that distribute information “in good faith without knowledge of its false, deceptive or misleading character.”
The lawsuit cites two examples of misconduct, though untold others may be uncovered and introduced as supporting evidence. One example involved Fox News personality Sean Hannity saying, “They’re scaring the living hell out of people, and I see it as, like, ‘Oh, let’s bludgeon Trump again with this new hoax.” The second example involved Trish Regan delivering a monologue next to a graphic that read, “Coronavirus Impeachment Scam.” In the monologue, Regan accused liberals of creating mass hysteria over the virus to shut down the economy and claimed that COVID-19 wasn’t as significant as other recent disease outbreaks such as SARS and Ebola.
Subsequently, Hannity claimed: “I never called it a “hoax.” I said it was a hoax for them to be using it as a bludgeon on Trump.” Notably, he made this denial in response to criticism from 74 journalism professors who wrote an open letter to Fox claiming that coverage of the coronavirus from Fox News Channel “is a danger to public health.”
The lawsuit alleges that those broadcasts caused viewers to fail to adequately protect themselves or mitigate the virus’ spread, and therefore contributed to the public-health crisis and preventable mass death, the lawsuit says. According to the suit, Fox News violated the CPA by “falsely and deceptively disseminating ‘News’ via cable news contracts that the coronavirus was a ‘hoax,’ and that it was otherwise not a danger to public health and safety.”
At least one poll has found that Fox News viewers were less likely to take precautions against the virus (including social distancing, handwashing, and other measures) seriously, and an open letter to Fox News from a group of journalism professors said “misinformation that reaches the Fox News audience is a danger to public health.”
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.
While the plaintiff is seeking nominal damages, reasonable attorneys’ fees, a statement that Fox News violated the Consumer Protection Act, and to notify the media organization to stop disseminating false information about the virus, it may have broader impact on news media companies, and on Fox News itself. Other states have consumer protection acts with larger civil penalties that can be used to penalize Fox News for any misconduct.
Fox News is likely to raise in its defense the First Amendment, which protects individual free speech. Washington State gubernatorial candidate Elizabeth Hallock, one of WASHLITE’s attorneys, said the classic example to demonstrate the limits of free speech is someone yelling “Fire!” in a crowded theater when there is no danger. Comparably, Hallock said of Fox News: “They’re yelling, ‘There is no fire!’ when there is a fire.” Arthur West, a WASHLITE Board Member, shared a similar sentiment to the Times of San Diego, saying “It’s like the theater thing. Up to the point where you get up in the theater and yell ‘Fire!’ you can say whatever you want. But when you get to the point where you are endangering the community — that transcends the limits of the First Amendment.”
When reached by phone for comment, Catherine Clark, a Seattle attorney who volunteered to join the plaintiffs’ legal team after reading an initial news account, said “this is a case of national importance.” A supporter of First Amendment protections, she continued, “When it comes to the public health, safety, and welfare, it seems to me a different set of rules apply.”
In a statement, Fox News general counsel Lily Fu Clafee responded to the suit by saying: “Wrong on the facts, frivolous on the law. We will defend vigorously and seek sanctions as appropriate.” It is possible that Fox News will approach this as a so-called SLAPP lawsuit, and invoke Washington State’s existing anti-SLAPP law. SLAPP lawsuits, or Strategic Lawsuits Against Public Participation, are based on a defendant’s written or spoken acts “involving public participation and petition,” defined in Washington State’s anti-SLAPP law in five ways:
The last four of these definitions seem to fit the case well, at least for Fox News’ purpose. What will be critical to watch is how, if at all, the anti-SLAPP defense would work in Washington. The summary proceeding of the anti-SLAPP law was previously ruled as unconstitutional in 2015’s Davis v. Cox decision by Washington State Supreme Court. West, speaking to the Times of San Diego, said “there is nothing left of the present statute. … Second, the COA only requires a showing of a capacity to deceive, and is unique in this way.”
Notably, the Washington law explicitly does not apply to prosecutions brought by the state, which could become relevant should the state determine that there is sufficient evidence that Fox News’ programming had a significant and detrimental effect on the response to the COVID-19 pandemic. Clark, speaking on the national significance of the case, said that the case “raises the question of ‘how do we take care of each other as a country.’” Given the widely varied statutes this claim could fall under in other states, the potential for many other such cases remains, and the legal precedents set now may shape journalism in years to come.
[Written by Bryan Sullivan and published in Forbes on April 10, 2020]