This week, Jones Day attorneys defending Fox News won court approval to argue the Washington state case. From left are Anthony J. Dick, Emily Faye Knox, Christopher Lovrien and Michael A. Carvin. Photos via jonesday.com

Fox News lawyers have renewed their bid to have a Washington state court throw out a lawsuit that claims the cable network is misleading — and endangering — viewers of its COVID-19 coverage.

An original “motion to dismiss” was filed April 14, but it was superseded — rendered moot — when plaintiff WASHLITE, a small nonprofit, submitted an amended lawsuit the next day.

On Thursday, the six-person Fox Corp. legal team filed a 160-page second motion to dismiss, countering demands by the Washington League for Increased Transparency and Ethics including retractions — which it termed a kind of “forced confession.”

Fox News’ second motion to dismiss WASHLITE lawsuit. (PDF)

“Fox’s commentary on the coronavirus is core political speech on a matter of public concern — how dangerous the coronavirus is, and how society and the government should respond to it,” said the new motion.

“Under both the First Amendment and state law, the value of this type of speech must be resolved through free and open debate in the marketplace of ideas — not through litigation seeking to impose legal penalties on statements alleged to be ‘false’ or contrary to official government pronouncements.”

Judge Brian McDonald in King County Superior Court will decide the motion via teleconference call, open to the public. That hearing is tentatively set for May 21. WASHLITE’s deadline to file a response is May 11.

Catherine “Cat” Clark of Seattle, representing WASHLITE, has asked the court 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.”

Clark, the group’s lone counsel, also asked the judge to order Fox to “cease and desist televising any misinformation regarding COVID-19,” citing her state’s unfair business practices law.

She declined to respond to a Times of San Diego request for comment on the latest motion.

But a WASHLITE spokesman who declined to be named said: “The 1st Amendment issues are not as cut and dried as Fox would have the public believe. There are a long line of Supreme Court cases that hold that reasonable restrictions upon even our hallowed 1st Amendment freedoms are acceptable when necessary in extraordinary cases to to protect society from the dangers of significant antisocial acts or communicable disease.”

He cited an 1890 case, Crowley v. Christensen, where Justice Stephen Johnson Field wrote “the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”

And in a 1975 case O’Connor v Donaldson, the spokesman quoted the court as saying: “There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease.”

In her latest public statement on the case, Fox News Media general counsel Lily Fu Claffee said April 15: “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.”

The new motion frames the suit’s demands as an illegal “prior restraint, or pre-publication censorship.

“Plaintiffs request a prior restraint prohibiting Fox from airing future speech that contradicts the government’s proclamations,” the motion says. “Worse, they request an order forcing Fox to recant past commentary and affirmatively endorse the government’s viewpoint.”

The Fox team said the ongoing COVID-19 debate is the type of context where censoring allegedly “false” statements would undermine the “robust public discussion” protected by the First Amendment.

“After all, if journalists can be sued for allegedly understating the dangers of the virus, then they can also be sued for overstating the dangers (thereby damaging businesses that are forced to close),” the motion says. “If that type of censorship is allowed, then nobody will be free to express an opinion on either side of the debate without risking costly litigation and legal penalties.”

Many First Amendment experts agree — and give the WASHLITE suit little chance of success.

But WASHLITE, led by Arthur West of Olympia, has been keeping an eye on national news reports that support its contention that Fox News is leading its mostly older viewers into a false sense of security — or skepticism of public health orders.

On Wednesday, for example, Vox.com — under a headline suggesting “Sean Hannity’s show helped spread the coronavirus” — summarized a study titled “Misinformation During a Pandemic” by the Becker Friedman Institute for Economics at the University of Chicago.

“Greater exposure to Hannity relative to ‘Tucker Carlson Tonight’ is associated with a greater number of county-level cases and deaths,” said the study. “Furthermore, the results suggest that in mid-March, after Hannity’s shift in tone, the diverging trajectories on COVID-19 cases begin to revert.”

The study’s four authors added: “While our findings cannot yet speak to long-term effects, they indicate that provision of misinformation in the early stages of a pandemic can have important consequences for how a disease ultimately affects the population.”

A Fox News spokesperson responded by saying: “The selective cherry-picked clips of Sean Hannity’s coverage used in this study are not only reckless and irresponsible, but down right factually wrong. As [our] timeline proves, Hannity has covered Covid-19 since the early days of the story.”

The Fox News statement said the Chicago study almost completely ignores Hannity’s coverage and repeated warnings from Jan. 27 through Feb. 26 “including an early interview with Dr. [Anthony] Fauci in January. This is a reckless disregard for the truth.”

The latest Fox News motion echoes that argument.

“Plaintiffs simply ignore the fact that the totality of Fox’s programming on the Coronavirus has repeatedly acknowledged the dangers of the disease while also providing a forum where diverse views can be aired and debated,” it said. “Tucker Carlson repeatedly warned primetime viewers, more than a month before Governor [Jay] Inslee declared an emergency, that the Coronavirus is ‘a real threat’ and ‘a major concern’ that they ‘should worry about.’”

Citing Supreme Court precedent, the Fox team says called the request for retractions a “type of forced confession.”

When people are “coerced into betraying their convictions” in this way, added damage is done beyond mere censorship, the motion says, adding that the Washington state Consumer Protection Act does not regulate speech about public-policy issues in the news media.

“It applies to deceptive commercial speech that induces the victim to act in a way that causes proximate harm to his business or property,” the motion said. “No court has ever thought to apply that commercial consumer-protection statute in the context of a political debate in the news media, which would make the law grossly unconstitutional.”

The website and video portal lawandcrime.com called the language Fox News used in the motion “caustic enough to stand alone as a prime time opinion monologue.” 

Law school graduate Aaron Keller wrote on the site that Fox “uses the phrases ‘Ministry of Truth’ — a reference to George Orwell’s dystopian novel 1984 — and ‘Committee on Public Safety’ – a reference to Robespierre’s ‘Reign of Terror’ during the French Revolution. Fox elsewhere likened attempts to use the courts to limit its free speech rights as akin to the playbooks of the ‘totalitarian’ regimes of ‘Russia and Iran.’”

Earlier this week, WASHLITE asked the court to let it drop certain defendants and add others.

It sought to drop Fox News, Fox News Group, Fox News Corporation, Rupert Murdoch, AT&T TV and Comcast.

The filing asks the court to add Fox Corp., Fox News Network LLC, Fox Business Network and “John Moe and Jane Moe, 1-1000.”

“This motion asks the court to add John Doe and Jane Doe as place holders for future plaintiffs who may either be named, or who may intervene, in this action,” WASHLITE said in a motion expected to be heard May 1.

Updated at 10:11 p.m. April 23, 2020

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