By Ken Stone
A nonprofit watchdog group in Washington state had “laudable” aims, a Seattle judge said Wednesday, but he threw out its lawsuit targeting Fox News.
“WASHLITE’s professed goal in this lawsuit — to ensure that the public receives accurate information about the coronavirus and COVID-19 — is laudable,” said King County Superior Court Judge Brian McDonald.
But the way the Washington League for Increased Transparency and Ethics moved against the top-rated cable news channel “runs afoul of the protections of the First Amendment,” he said in an eight-page order.“This Court concludes that WASHLITE’s [Consumer Protection Act] claim against Fox is barred under the First Amendment. Fox’s motion to dismiss is GRANTED.”
WASHLITE board member and spokesman Arthur West said a notice of appeal will be filed in state appellate court.
“We have a lot of respect for the judge,” he said. “It’s a well-reasoned opinion. It was thorough. We respectfully disagree.”
In a statement, Fox News said: “Using a false portrayal of FOX News Channel’s commentary, WASHLITE attempted to silence a national news organization to settle a partisan grievance. This was not only wrong, but contemptuous of the foundation of free speech and we are both pleased the court dismissed this frivolous case and grateful to the First Amendment community that rallied to our side.”
Does West expect Fox News to see the dismissal as a license to spread misinformation?
“Oh yeah,” said the Olympia resident. “They already have been doing that. If they were prudent in their speech, we would not have [brought] this action to begin with.”
In its original complaint, WASHLITE called out Fox News host Sean Hannity for leading viewers to believe the pandemic was a “hoax.” Fox News argues Hannity never said that.
Judge McDonald noted that in many key U.S. Supreme Court decisions involving the First Amendment, “the motives for seeking to curtail or prohibit speech were understandable and could be considered righteous.”
But he said the Supreme Court recognized that “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
WASHLITE, a little-known group until it filed suit April 2, argued that Fox, as a cable programmer, does not have the same First Amendment rights accorded to newspapers and broadcast TV stations.
“Cable programmers do not have First Amendment rights on the cable medium,” so Fox “does not have First Amendment protections on the cable medium,” contended Catherine “Cat” Clark, the lone attorney for WASHLITE.
McDonald said such assertions do not hold up to scrutiny.
“Over 25 years ago, the United States Supreme Court held, ‘There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment,’” he said, citing the 1994 ruling in Turner Broadcasting Systems v. FCC.
The Supreme Court observed that, “[t]hrough ‘original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,’ cable programmers and operators ‘see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.’”
McDonald also noted WASHLITE’s argument that “there is no First Amendment right to lie.”
He said the law on this issue is more nuanced than suggested by WASHLITE.
Citing the 2012 case United States v. Alvarez, he said the Supreme Court held that the Stolen Valor Act, which made it a crime to falsely claim to be a Medal of Honor recipient, was unconstitutional under the First Amendment.
“In his plurality opinion, Justice Kennedy explained, ‘Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”
The speech in the WASHLITE case involves matters of public concern at the heart of the First Amendment’s protection, McDonald said six days after hearing arguments over the dismissal motion.
“And WASHLITE does not explain how its CPA claim in this case might fall under the few categories identified in Alvarez,” he said. “Washington courts have previously
rejected attempts to use the CPA to punish speech made by the media.”
WASHLITE had sought an order enjoining Fox from televising any misinformation regarding COVID-19, an order directing Fox to issue specific retractions of every false and/or misleading statement, and treble damages.
Despite amici briefs supporting Fox by powerful lobbying groups of reporters and the cable industry, West said he wouldn’t say it was universally considered to be an impossible effort.
“Whenever you go up against a large powerful corporation, it’s a long shot. … In this case, I think the unique circumstances are that there are actual studies showing the harm that flowed from the speech,” he said in a phone interview.
West said he looked forward to making his case again before a three-court panel of judges.
“It’s my opinion that the harm flowing from this … type of speech fits within one of the historically recognized categories, and we’re going to see what happens in the court of appeals,” he said.
West said he didn’t seek a conservative or a liberal judge to rule in the appeal.
“We would hope to get a panel of judges who read the law and leave their political blue or red hat outside the courtroom,” he said.
Clay Calvert, a law professor at the University of Florida and a First Amendment expert, called McDonald’s opinion “pretty meticulous” and “buttoned-down” as it ticks through all the major principles.
He called WASHLITE’s chances of prevailing on appeal “slim to none.”
“To their credit, [WASHLITE is] trying to help the public .. be better informed,” Calvert said in a phone interview.
But he said the First Amendment “stands as a bulwark against the government … punishing speech simply because they don’t like the viewpoint.”
Updated ay 1:40 p.m. May 27, 2020
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