Instead, Judge Brian McDonald in King County Superior Court said he’ll issue a decision by the end of next week, setting out reasons for his ruling — possibly in anticipation of an appeal.
The hearing was held via Zoom, with the public being able to watch live on YouTube.com. As many as 75 viewed the 50-minute hearing — which considered hypotheticals such as: Would airing misinformation about the Pearl Harbor attack in World War II have been OK under the First Amendment? Or could Sean Hannity get away with a column in the Wall Street Journal labeling COVID-19 a hoax?
Michael Carvin of the Jones Day law firm spoke on behalf of Fox and rebutted arguments by plaintiff’s attorney Catherine “Cat” Clark, whose Zoom background showed Amazon headquarters as seen from her office window.
The Washington League for Increased Transparency and Ethics, or WASHLITE, is trying to hold the conservative-leaning cable channel accountable for what the little-known nonprofit called misleading and deceptive COVID coverage.
Also speaking was Washington, D.C.-based attorney Matthew Brill, who focused on Fox News’ First Amendment rights and supported the motion to dismiss.
“There’s an incredibly high bar before the government can censor particular viewpoints,” Brill said on behalf of the NCTA, the Internet & Television Association, a lobbyist for cable TV networks. And applying the state’s Consumer Protection Act to this case “offends First Amendment principles.”
Clark of Seattle, representing WASHLITE, has called on a judge to order the top-rated network to halt false reports and issue retractions of “each and every false and/or misleading statement televised through its cable television stations relating to COVID-19.”
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The suit contended that Fox News “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.”
Fox’s Carvin began by saying: “You cannot punish speech of public concern regardless of whether the statements are factual in nature.”
But McDonald noted limits on free speech such as defamation and child pornography.
“Why wouldn’t we at least consider in a pandemic situation, where lives are at risk,” whether the First Amendment applied? he asked. “An individual’s reputation is less valuable to society as a whole than making sure accurate information gets out about a life-threatening disease.”
McDonald added: What if somebody actually encouraged people with coronavirus to go infect others? Would that be fully protected by the First Amendment?
Carvin replied: “That’s like encouraging assault or murder. And I admit that there’s less First Amendment protection for that.”
But the Fox lawyer said it’s OK to express an opinion of how to deal with the virus.
“If an expert came to a courtroom and offered an … opinion that the coronavirus is no more dangerous than the flu, and you rejected that as completely wrong, you could not indict the expert for perjury,” Carvin said. “Today’s falsity is tomorrow’s truth — as Galileo and a number of other people can attest.”
He said scientific consensus “literally changes on a weekly basis. … Clearly, anything about the risk of coronavirus would be utterly off-limits under the First Amendment.”
The judge asked whether he should accept all the WASHLITE allegations about Fox News as true for the sake of his decision.
“Go ahead and accept all of their completely fictitious statements as true,” Carvin replied. “As a matter of law, this case must be dismissed.”
Carvin said Fox News host Hannity didn’t call the virus a hoax but said the attacks on President Trump were.
“This attack on Fox News issuing deceptive statements is itself based on utterly deceptive statements about what Fox News actually said,” Carvin told the court.
WASHLITE’S Clark returned to a central focus: statements that COVID-19 is not a real threat to human life.
“Anything that threatens a well-informed public, based on a falsehood, not only violates our Consumer Protection Act for paying customers, …. but also is not protected by the First Amendment,” she said. “There has never been a right to lie. … particularly on something like a pandemic.”
McDonald asked: If Sean Hannity said the same things in a Wall Street Journal column as he had on air, would THAT be protected by the First Amendment?
Clark: “Is that an opinion column, your honor, or a fact-based column?”
McDonald: “Let’s call it an opinion column.”
Clark: “That would be different. Mr. Hannity regularly expresses his opinions every night…. And they’re certainly free to express their opinions. However, there is no opinion on the actual existence of COVID-19. An acceptable opinion would be something like … If you are not over 65, …. the threat to you is less and you should be less careful.”
McDonald: “If there is an article in the Wall Street Journal that says it’s a hoax — would they be subject to the Consumer Protection Act?”
Clark: “Possibly, yes. … There is no case in Washington state that extends (First Amendment) coverage to a cable news network. There’s also a question as to whether Fox is actually a news source, because on their website … there’s a disclaimer: We are an entertainment … site. That’s a question of fact for a jury to decide, frankly.”
Clark conjectured: If a newspaper had claimed that the Japanese had NOT in fact attacked Pearl Harbor or if they had said that the Japanese were attacking any number of cities on the West Coast, that wouldn’t be appropriate.
“And it causes a threat to the public health because people rely on that information and act accordingly,” she said. “When it comes to public health, the rules are different. And that you can’t lie about.”
Fox’s Carvin said: “Fortunately, the Washington Legislature never passed a law saying you can’t tell falsehoods about public health emergencies, so the act doesn’t even apply. If they HAD passed such a law, it would be unconstitutional.”
McDonald soon announced he wasn’t going to rule right away.
“I’m going to take this matter under advisement,” he said from his Seattle bench. “I intend to issue a written ruling before the end of next week. And since I’m not ruling today … reasons will be set forth in whatever ruling I issue.”
From its April start, Fox News brushed off the WASHLITE arguments, with Fox News Media general counsel Lily Fu Claffee calling an amended complaint “gibberish” with “glaring flaws” in its main premise — that cable programmers do not have First Amendment rights on the cable medium.
Claffee said that argument suggests “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.”
Fox News didn’t immediately respond to a request for comment on the hearing.
WASHLITE board member Arthur West, a spokesman for the group, said it was a good sign that McDonald would issue a written opinion — which West considered rare at this stage of the case.
“He was taking everything very carefully,” West said. “He asked some of the right questions about what’s the standard in wartime. I think that’s pretty much what we’re coming down to here.”
“If this had happened in World War II, and the question was: Can we disclose shipping schedules to the Nazis? there wouldn’t even be debate.”
In a phone interview after the hearing, West asked whether it would be permissible speech after Dec. 7, 1941, for a news outlet to say “everyone should resist war preparations.”
“I don’t think that was permissible speech then, and I don’t think ‘Covid-19 doesn’t exist’ is permissible speech now,” he said. “The state police power extends to protecting its citizens in times of grave national peril.”
He said a key question is whether the judge finds the Consumer Protect Act applies to cable TV.
West wouldn’t say whether an appeal is planned if the case is thrown out.
“We look forward to reviewing [the ruling],” he said. “We’ll make a decision at that point. We think these are important issues, and we certainly will consider all of our options at that point.”
Updated at 2:05 p.m. May 21, 2020