A bloodied David wants a Round 2 against Goliath. But this time, Gov. Gavin Newsom, and a ruling in a Chula Vista case, are giving David new hope.
The small Washington state watchdog group WASHLITE on Monday appealed a Seattle judge’s dismissal of its consumer protection suit against multibillion-dollar Fox News.
But two days after King County Judge Brian McDonald threw out the case on First Amendment grounds, the U.S. Supreme Court rejected a First Amendment argument by South Bay United Pentecostal Church of Chula Vista.
By a 5-4 vote May 29, the high court sided with California’s Newsom by upholding his orders restricting church worship.
“A state’s abilities to regulate and protect its citizens in a … pandemic was a special case,” Arthur West, a WASHLITE board member, said of the church case.
Since it was a First Amendment challenge, it’s “very analogous” to the Fox News case, he said, “because free exercise of religion and freedom of speech are pretty close to the same level of protection.”
So if Newsom had the authority to reasonably regulate the free exercise of religion in California, then the Washington state Legislature — through its Consumer Protection Act — has the authority to curb “harmful and deceptive commercial content” on Fox News, West said in a phone interview.
In an emailed statement, Fox News said: “WASHLITE’s decision to appeal this frivolous case is not only irresponsible, but a total waste of time and money. Nevertheless, we will continue to oppose this partisan organization’s foolish attempt to silence critical voices in America.”
Spokesman West of the nonprofit Washington League for Increased Transparency and Ethics said the aim isn’t to penalize Fox.
“The issue is to set acceptable boundaries for cable content providers misrepresenting … a highly contagious and potentially deadly disease under the First Amendment,” he said.
A favorable ruling in the Washington state Court of Appeals “would go a very long way toward addressing our concerns,” he said.
West would like to see a precedent set that the First Amendment is not absolute in protecting cable content provider’s speech.
He said an appellate decision against false statements about a pandemic disease would be a landmark ruling.
“And it would be perhaps more effective than a trial court order telling Fox what to do,” West said.
The 9th U.S. Circuit ruling against the Chula Vista church and the concurrence of Chief Justice John Roberts were “very favorable to the issues that we brought forward in this case,” he said. “At least on the First Amendment issues, we believe we’re on solid ground.”
But the path to a verdict at the state level is a long one.
A case manager with the Washington Court of Appeals said Monday it might take a year or longer “for the case to go from start to finish.”
“It depends on how fast people file their documents,” the case manager said, noting a 30-day deadline to file the initial record, 60 days to submit court transcripts, 45 days for the opening brief and 30 days later for respondents’ brief.
Only three of the state’s 10 appellate judges, based in Seattle, would hear the case, the official said. An appeal of that decision would go to the Washington state Supreme Court.
West wouldn’t say whether he’d appeal an adverse decision to the state Supreme Court. (It depends on how the ruling is framed, he said.)
But he repeated his case against Fox News.
“This isn’t just somebody getting up on a soapbox,” he said. “This is a dominant cable network that reaches into 92% of American households and 200 million people a week.
“Fox News is not a politician standing on a soapbox in a town square. It’s a dominant player in the new electronic town square of the global village.”