Cable networks aren’t afforded the same First Amendment protections as print media, so a judge shouldn’t dismiss a consumer-protection lawsuit against Fox News, said a new court filing Monday.
“Fox is not a newspaper and is not sued in this action for the programming on its broadcast television stations,” said a lawyer for the Washington League for Increased Transparency and Ethics.
WASHLITE aims to constrain Fox News coverage of the COVID-19 pandemic, which it calls deceptive and misleading. The nonprofit also demands retractions.
Its latest filing — a response to a motion to dismiss — hopes to persuade Judge Brian McDonald in King County Superior Court to allow the case to proceed. A hearing is set for May 21.
WASHLITE attorney Catherine “Cat” Clark of Seattle said in her 36-page filing that the U.S. Supreme Court “has long recognized that cable programmers do not have First Amendment rights on the cable medium. … Rather, the law is that only cable operators, such as AT&T, Comcast and Spectrum, enjoy First Amendment rights on their privately owned cable systems.”
In a statement, Fox News Media general counsel Lily Fu Claffee labeled as “absurd and unconstitutional” the group’s premise, which she said is that “courts and judges ought to take the place of managing editors of cable newsrooms across the country so that the state may approve or suppress what information our audiences hear.”
“That should be rejected out of hand,” Claffee said via email. “We look forward to making our points in court. … WASHLITE fails to respond meaningfully to our motion to dismiss because there is no response to the glaring flaws of its case.”
In its latest motion to dismiss, Fox decried what it saw as an attempted “forced confession.”
“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,” Fox lawyers said April 23.
“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.”
But plaintiff lawyer Clark said the case raises a different set of questions than First Amendment protections for newspapers and broadcast TV stations.
“Cable television has long been subject to consumer protection statutes,” she said. “The Cable Television Consumer Protection and Competition Act of 1992 … is itself a consumer protection act.”
Under Washington state’s Consumer Protection Act, Clark said, unfair and deceptive acts may be enjoined, and damages and fees may be recovered.
“Fox’s repeated claims that the COVID-19 pandemic was/is a hoax is not only an unfair act, it is deceptive and therefore actionable under Washington’s Consumer Protection Act,” she wrote.
- Read: Declaration by Jacob Cuzdey on damages by Fox News (PDF)
- Read: Declaration by David Koenig on damages by Fox News (PDF)
- Read: Declaration by Lori Shavlik on damages by Fox News (PDF)
- Read: Declaration by Arthur West on damages by Fox News (PDF)
- Read: Appendices to WASHLITE response to Fox News motion to dismiss (PDF)
Meanwhile, four Washington state residents say they were harmed — physically or financially — by Fox News coverage of COVID-19.
“The false and deceptive content that Fox placed in the stream of commerce and into my living room deceived and injured me and caused me to expend time and resources I would otherwise not have expended,” said a companion WASHLITE court filing Monday by Lori Shavlik, 51.
She said that two days after closing escrow on a $185,000 home in Fairbanks for her son to live in while he attended the University of Alaska, school closed.
“We also purchased a new pickup truck for $32,000, which we cannot now reasonably use or drive back to Washington through Canada,” Shavlik said.
As a regular viewer of Fox News, she said, “I am ashamed to admit that, as a result of this widely broadcast carrier wave of false information by Fox, I myself did not fully comprehend the dangers posed by the Covid-19 virus until the second week of March.”
As a result, she said she failed to buy protective masks and other supplies while they were still available and had to go to extreme lengths to obtain paper products, hand sanitizer and, at times, food.
Jacob Cuzdey said his business, Evolving Medical Solutions, was attempting to develop and market a “novel blood oxygenation system” therapy for Covid-19.
“Due to the misinformation and uncertainty spread by FOX News about the seriousness of Covid-19 and its downplaying of the dangers of the virus, I was harmed in the early development and marketing of this potentially lifesaving technology in that potential partners, investors or supporters were uncertain if there was actually a significant problem to begin with, and were reluctant to commit,” he said.
Cuzdey blames the conservative-leaning channel for interfering with the rollout of a “potentially lifesaving new method of Covid-19 treatment.”
David Koenig, whose last construction job was at Seattle-Tacoma airport, said he was sick at home for six weeks with COVID-19.
“The actions of Fox News in minimizing the danger of the coronavirus led me to ignore a significant health threat and to fail to take precautions against infection,” he said, and “I believe it contributed to my becoming infected with the disease.”
Koenig’s signed declaration said he would have worn a mask, washed his hands frequently and taken other steps to protect himself had he been accurately informed.
“I believed it was not very contagious and that it was not a serious health threat,” he said of his Fox News viewing in March and April.
All four are members of the Washington League for Increased Transparency — or WASHLITE — which is suing the parent company of Fox News in an effort to halt what it considers ongoing coverage that deceives and misleads the public.
Arthur West, leader of WASHLITE, filed his own eight-page declaration in which he said he was a pre-COVID investor in Evolving Medical Solutions — and also took a potential financial hit.
“By following the credo of ‘Make the lie big, keep it simple, keep saying it, and eventually they will believe it,’ Fox News employed their dominant position in creation of cable content to deceive consumers and create a situation where a statistically significant section of the population believes Fox’s deceptive content,” West said.
Updated at 6:42 p.m. May 11, 2020