By Ken Stone
Talk about Fox and friends. Two major trade groups, including one representing liberal outlet MSNBC, are siding with Fox Corp. efforts to quash a lawsuit in Washington state.
In a 670-word amici curiae request Monday, the Reporters Committee for Freedom of the Press and the Internet & Television Association call on King County Superior Court Judge Brian McDonald to dismiss WASHLITE’s suit alleging harm from Fox News coverage of COVID-19.
McDonald is expected to rule Thursday on the Fox “motion to dismiss” when a telephonic hearing airs arguments on both sides.The cable industry’s powerful lobbyist (still known by its former acronym, NCTA) and the respected journalism group wrote the court to combat “the dangerous implications of Plaintiff’s contention that news providers that distribute content over cable systems are somehow excluded from the First Amendment’s purview.”
Quoting a 1994 case — Turner Broadcasting Systems v. FCC — the groups said cable news programmers including Fox News are entitled to the speech and press protection provisions of the First Amendment.
In an eye-opening brief last week, the 3-year-old nonprofit Washington League for Increased Transparency and Ethics said cable networks aren’t afforded the same First Amendment protections as print media.
“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,” said plaintiff’s attorney Catherine “Cat” Clark of Seattle.
Arthur West, leader of WASHLITE, shrugged off the groups’ argument.
“If Fox’s attorneys had briefed the case adequately, and there were no issues of first impression to decide, there would be no need for another large megafirm to weigh in at this time,” he said Monday via email.
The second “large megafirm” (joining Fox counsel Jones Day) is Latham & Watkins, a global outfit with 2,600 attorneys in 30 offices, including San Diego. Three of its lawyers are representing the two lobbying groups in the case.
WASHLITE’s Clark asserts that under Washington state’s Consumer Protection Act, unfair and deceptive acts may be ordered halted, and damages and fees recovered.
But the latest filing by the reporters and broadcasters says news media enjoy First Amendment protection whether they distribute content via newspaper, broadcast radio or television, or over a cable system.
“Indeed, a distinction between broadcast news and cable news would be especially absurd,” said the proposed brief. “Broadcast news itself is typically distributed over cable systems. … The [Supreme] Court by no means suggested, much less held, that news outlets somehow shed their traditional First Amendment protections … when they distribute their content over cable.”
Representatives of NCTA didn’t immediately respond to requests for comment.
But in a post Monday on the RFCP site, Gabe Rottman wrote: “If taken to its logical conclusion, [the WASHLITE argument] would strip First Amendment protections from content distributed over the public internet, including this blog post.”
Rottman, director of the group’s Technology and Press Freedom Project, added the lawsuit effectively says that when a news organization uses a third party to get its news to the public, the content of that news receives no First Amendment protection.
“Among other things, that logic would extend to newspapers who use third-party contractors to deliver the physical paper or rely on internet service providers to distribute digital content,” he said. “It would extend to syndicated radio programs who sell content to third-party broadcasters.
“And it would apply to the broadcast networks. ABC, CBS, the CW, FOX, and NBC would only be protected when their programming is broadcast by owned-and-operated stations. PBS wouldn’t be protected at all because it doesn’t own its member stations.”
Rottman concluded: “The COVID-19 pandemic is both a public health crisis and a profound challenge to civil liberties here and around the world. And it is a political crisis that is provoking intense and acrimonious policy debates at all points on the ideological spectrum.
“But that debate means that the First Amendment matters more now, not less, and regardless of who is doing the speaking or debating, it should be vigilantly protected. WASHLITE’s legal theory would limit the ability of all Americans to report the news or, more broadly, speak freely on one of the most important public policy debates in generations.”
A First Amendment expert at the University of Florida took note of the friends of Fox.
“The Reporters Committee for Freedom of the Press is probably the nation’s leading media defense nonprofit organization,” said Clay Calvert, Brechner Eminent Scholar in mass communication and director of the Marion B. Brechner First Amendment Project at the University of Florida. “So the fact that they would come to [Fox’s] side of the case is rather significant.”
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