Seattle courtroom of Superior Court Judge Brian McDonald, where Fox News motion hearing is set. Image via YouTube.com

What do the coronavirus and a Washington state nonprofit’s case against Fox News have in common? They’re both novel.

Thursday in Seattle, when a Superior Court judge hears a Fox Corp. motion to dismiss the case, WASHLITE will say that the First Amendment doesn’t apply to Fox News.

Fox lawyers ridicule that “astounding claim,” saying in a brief filed Tuesday that even if the group is right about Fox News hosts and guests deceiving viewers on the dangers of the virus, “the Constitution protects Fox’s speech as a matter of law.”

Clay Calvert, a nonpracticing lawyer who keeps his California Bar membership in force, is a First Amendment expert and law professor at the University of Florida. Photo via jou.ufl.edu

Agreeing with Fox is Clay Calvert, a First Amendment expert and University of Florida law school professor.

Even from 3,000 miles away, Calvert at home in Gainesville sees flaws in the lawsuit by the Washington League for Increased Transparency and Ethics.

“This argument that it’s on a cable news network and … filtered through another cable service provider [without a First Amendment shield] — that just seems to me to be off base,” Calvert said Tuesday. “I think it is a novel legal argument.”

Also new: King County Superior Court Judge Brian McDonald will let the world into the hearing — via YouTube.com. (Attorneys and other parties will take part via Zoom.). The live “simulcast” starts at 9:30 a.m. and can be found here.

Calvert concurs with the Reporters Committee for Freedom of the Press, which joined a cable-TV lobbying group in an amici brief that the WASHLITE stance would go far beyond Fox.

Fox Corp. brief defending its motion to dismiss. (PDF)

“A lot of people do not like Fox News,” he said in a phone interview. “But this case is about more than simply Fox News. It affects any news organization, whether they’re from the right or the left. The same issues would apply to MSNBC or CNN.”

The idea that cable news has no First Amendment protection if it’s conveyed on a third-party service provider would affect any cable news channel, he said.

WASHLITE also cites the state Consumer Protection Act in seeking a judge’s order to halt Fox News “false information” on COVID — what Fox lawyers call an illegal “gag” order.

“That statute itself seems to be targeted at commercial expression, not necessarily news,” said Calvert, who reviewed briefs in the case filed April 2 and later amended. “In other words, deceptive speech designed to sell products. … Whether the statute has relevance to news content … is questionable.”

WASHLITE responded Wednesday to the reporters brief by saying, in part, there is no First Amendment right to lie.

“Even if the court concludes that there is a generalized First Amendment right by a cable programmer on a cable network owned by someone else, neither Amici, or Fox, have provided any authority that such a right is a defense to a state consumer protection act claim by customers of cable television services where such cable programmers transmit blatant falsehoods regarding a threat to public health,” said WASHLITE attorney Catherine “Cat” Clark. “In fact, the law is to the contrary.”

Calvert says the Supreme Court has, in fact, seen a First Amendment protection of lies, noting the 2012 U.S. v. Alvarez ruling in a “stolen valor” case.

He said that decision holds that a lie, “untethered from any proof of actual harm or injury arising directly from reliance upon it, is protected by the First Amendment. Justice Kennedy wrote for the plurality in Alvarez that “[t]he Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.”

WASHLITE insists that Fox News physically or financially harmed four clients by repeated statements the virus was a hoax. (The four provided sworn declarations.)

That will be hard to prove, Calvert says.

“You also have to show some direct injury here,” he said. “People are deceived by speech all the time. And this consumer protection law really deals with commercial speech — buying products rather than watching television news.”

So how might Fox News be held accountable for alleged misinformation — calling the virus a “hoax,” for example?

An individual can sue for defamation, he said.

“That’s the typical remedy here,” Calvert said. “But now … we’re extending out the harm to an unclassified … massive class of individuals — all listeners or viewers of Fox are somehow harmed by the statements that are allegedly false about the coronavirus and COVID-19.”

Such a consumer class action basically says that Fox News is somehow not up to standards.

“That’s problematic,” he said.

(WASHLITE in fact makes that substandard case by including in its latest brief the recent Medium essay signed by 170 journalism professors and others saying “misinformation that reaches the Fox News audience is a danger to public health.”)

Another strategy would rely on the Federal Communications Commission.

“They do have a statute that allows them to go after hoaxes” like one in which radio morning-show hosts Val St. John and Scott Fish pulled an April Fools’ prank — telling listeners that “dihydrogen monoxide” was in Fort Myers drinking water. Dihydrogen monoxide is water.

But Fox News is accused of calling COVID a hoax, not perpetrating a hoax.

On Monday, WASHLITE leader Arthur West reacted to the “shrill tone” of a Fox News filing in defense of its motion to dismiss.

“Like their continuing deceptive claims that the coronavirus pandemic is a ‘hoax’
at issue in this case, Fox’s brief continues to hammer on the same few false points
in a deluded hope that if they repeat their legalistic dogma often enough, in a caustic and abusive manner, irregardless of the facts and precedent, they will prevail,” West said via email.

WASHLITE response to trade groups’ amici brief (PDF)

He said Fox “recycles the same specious absolutist First Amendment claims, misstates the black letter law applicable to the unique technical circumstances of cable content providers on privately owned third party cable networks, fails to address any of the facts appearing in sworn declarations, and ignores the standards for a broad, remedial, content neutral law such as the CPA recently set forth” in a 2015 Washington Supreme Court case.

West likened the Fox motion to an episode of Sean Hannity or Jeanine Pirro.

“This type of litigious psychobabble would be effective propaganda for their target audience of Fox ‘True Believer’ coronavirus pandemic deniers,” he said. “In the context of a court brief in the august halls of justice, not so much.”

Calvert is director of the Marion B. Brechner First Amendment Project, which also files “friend of the court” briefs in similar free-speech cases. He doubts WASHLITE will rebuff the motion to dismiss.

“Fox News likely will prevail in that the First Amendment protects the press … regardless of the medium,” he said. “That issue is obviously central in this case.”

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