Fourteen years ago, lawmakers in Washington state passed Senate Bill 6366. Unanimous votes in the House (98-0) and Senate (44-0) sent it to Gov. Christine Gregoire, who signed it on the Ides of March.
On Wednesday, a nonprofit group cited that statute — “Pandemic influenza preparedness” — in a revised lawsuit against Fox News.
Catherine “Cat” Clark of Seattle, representing the nonprofit group WASHLITE, called on a judge to order the top-rated network to issue retractions of “each and every false and/or misleading statement televised through its cable television stations relating to COVID-19.”
Her 32-page complaint in King County Superior Court also seeks treble damages for violations of the state’s Consumer Protection Act — up to $25,000.
Interviewed a day after the defendants asked a judge to dismiss the case on free-speech grounds, Clark said Fox News doesn’t “get to say things in blatant disregard of the truth — irrespective of whether or not you’re a media outlet.”
Acutely aware of her steep legal climb, Clark told Times of San Diego that she’s trying to narrow the issue to “start a national discussion of what are we going to accept” in the media.
The First Amendment doesn’t allow any media outlet to air pornography, she noted.
Sharing misinformation on COVID-19 is “the same kind of thing,” Clark said. “We have this idea that we can say whatever we want whenever we want to whomever we want, and there’s no consequence. And that’s not actually the law. That’s never been the law.”
The bulk of the revised suit is a timeline of the pandemic. It quotes Fox News hosts and guests contradicting the national Public Health Emergency declared by Health and Human Services Secretary Alex Azar on Jan. 31.
The suit also claims Fox News ignored facts of the crisis.
For example, a day after two people died from COVID-19 in King County, Fox News host Sean Hannity said: “Zero people in the United States of America have died from the coronavirus.” (But the first announcement of a death came two days after the Hannity remark — Feb. 29.)
As recently as Monday, the suit said, Fox News contributor Bill Bennett on “Fox & Friends” said the COVID-19 pandemic was not a pandemic at all but rather akin to a seasonal flu.
“Mr. Bennett made these statements despite the fact that, as of April 13, 2020, the mortality of COVID-19 in the United States was 4% within an approximately 90-day period and the mortality rate of the seasonal flu is 0.1% annually,” the suit says.
Such remarks raised doubts about the warnings of public health officials, the suit says, putting plaintiffs “JOHN DOE and JANE DOE 1-1,000” in harm’s way.
(Clark also stressed: “This case has nothing to do with shining a poor light on the Trump administration. In fact, it does not. It supports what [the White House has] done.”)
On Thursday, Fox News Media general counsel Lily Fu Claffee said via email: “The amended complaint is even weaker than the [10-page] original with the same bogus assertions and even less law. We will move to dismiss this gibberish as well.”
Meanwhile, a story posted on FoxNews.com noted the “changing rhetoric” of politicians and media on the pandemic.
— Fox News (@FoxNews) April 16, 2020
WASHLITE’s Clark conceded that the new suit was “not without its challenges. … We’re out there on this. We are pushing it. But it’s not frivolous.”
She said the suit is about Washington state consumers being misinformed — and not having the ability to opt out of Fox channels in their cable packages.
Such misinformation “violates a particular statute of public interest — and because [Washingtonians are] paying for all of that, the Consumer Protection Act is triggered,” she said.
“This is a legitimate question,” Clark said of whether Fox News should be held accountable for its alleged COVID-19 misstatements. “And [it’s] not answered anywhere in Washington law or in the 50 states. I have looked. Trust me. I have looked.”
Her suit quotes state law and highlights a section:
“An effective response to pandemic influenza in Washington must focus at the local level and will depend on pre-established partnerships and collaborative planning on a range of best case and worst case scenarios. It will require flexibility and real-time decision making, guided by accurate information. It will also depend on a well-informed public that understands the dangers of pandemic influenza and the steps necessary to prevent the spread of the disease.”
The suit contends that Fox News thus “violated, and continues to violate, the Washington Consumer Protection Act. Its misrepresentations relating to COVID-19 have injured persons in Washington State, had the capacity to injure such persons when the deceptive statements were made, and has the capacity to injure more persons as the practice is ongoing.”
Damage includes time taken from work and loss of jobs.
The suit also cites “additional costs from not having prepared sooner (including paying higher prices for masks, paper products, hand sanitizer, etc., which could have been ordered or purchased earlier) due to confusion caused by Fox network coverage, and other unspecified injuries stemming from and causally linked to the defendant’s pervasive campaign of misinformation.”
- Related: Fox News, Citing First Amendment, Urges Judge to Toss WASHLITE Suit
- Related: Fox News Names Powerhouse Legal Team to Fend off Suit in Washington State
- Related: Washington State Group Is 1st to Sue Fox News for Calling Coronavirus a ‘Hoax’
Besides narrowing the issue, the revised suit drops as defendants AT&T and Comcast — telecoms carrying Fox News in King County. Also safe: Fox Corp. chairman Rupert Murdoch.
“We dropped Mr. Murdoch — the gentleman is 89 years old. My father is 87,” Clark said. “There’s no purpose to naming him as an individual.”
But Fox News might have company as target of the suit by the Washington League for Increased Transparency and Ethics.
“Honestly, I do not foreclose adding … other persons (or) entities as defendants,” Clark said in a phone interview from her office in Seattle’s Denny Building — which also hosts Fox-operated KCPQ-TV. “I’ve been in the case nine days. It’s possible we add … other cable outlets and cable television channels.”
Clark was amused by a Times of San Diego account of her Democratic donations.
“You didn’t find my Republican voting history or my Republican roots,” she said, noting that her paternal grandfather, Cecil Clark, was a GOP member of the Washington Legislature.
“My father was a member of the press for 40 years,” she added. “Part of what we’re trying to do here is trigger a discussion of our appellate lawyers and appellate judges. Because that’s clearly where this case is going.”
She said it gets down to: “What are we talking about when the country is faced with such a virulent and pernicious disease? What are we going to accept as acceptable speech? … We’re talking not only about people’s lives but the economy.
“The whole purpose here is to get that discussion going. What is OK? What isn’t OK?”
Updated at 9:04 a.m. April 16, 2020