Remarks by Sean Hannity of Fox News were cited by WASHLITE as harming public health by downplaying the danger of the virus causing COVID-19. Image via Fox News

Fox News won a legal victory Monday when a Washington state appeals court panel ruled that a King County judge was right to throw out a lawsuit alleging the conservative-leaning cable outlet was harming public health by labeling COVID-19 a hoax.

A small nonprofit group called WASHLITE — the Washington League for Increased Transparency and Ethics — sued Fox, owner Rupert Murdoch and others in April 2020 under the state’s Consumer Protection Act.

Washington state appeals court ruling favoring Fox News. (PDF)

It sought to prevent Fox News from airing “false and deceptive” content on the virus.

But Acting Chief Judge Beth M. Andrus wrote: “WASHLITE’s allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State’s undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.”

Andrus and fellow Division 1 appellate judges Linda W. Coburn and Cecily C. Hazelrigg heard oral arguments May 26 in Seattle after briefs filed by Fox News and WASHLITE.

“WASHLITE launched a frontal assault on the First Amendment by seeking a gag order preventing Fox News from airing commentary about the Covid-19 pandemic,” said the Fox legal team. “WASHLITE thus seeks to restrain, control and penalize what commentators and opinion hosts may say on cable television about one of the most pressing public issues of our time.”

Countered WASHLITE: “In essence, Fox asks this court to grant to it the absolute freedom to share falsehoods relating to the public health, safety and welfare as a defense to WASHLITE’s claims. The law does not support Fox.”

WASHLITE attorney Catherine C. Clark said in a December 2020 brief that Fox sought protections that “no one in the United States enjoys — the right to make false statements of fact which threaten the public health, safety and welfare. The United States Supreme Court has long held that First Amendment rights do not serve as a license to commit fraud and injure the public.”

(In fact, the Reporters Committee for Freedom of the Press and the Internet & Television Association, citing First Amendment protections, urged Judge Brian McDonald to dismiss WASHLITE’s suit. He did on May 27, 2020.)

On Monday, WASHLITE board member Arthur West, who lived in Escondido in the late 1980s, noted the 600,000-plus American deaths from COVID-19 since the lawsuit against Fox was filed.

“While we are disappointed with the scope of protection afforded under the First Amendment for false and harmful communications, even those that may result in death or disability, we respect all of the rights protected under the First Amendment including the citizens’ right of petition to sue corporations like FOX News when they sell misleading content concerning a public health emergency that has been shown in numerous studies to have been harmful to their viewers,” he said via email.

West, 60, left the door open for an appeal to the Washington Supreme Court.

“Although the WASHLITE board has not discussed the matter, I believe that we have done the best we could to try to hold a powerful and ruthless corporation accountable for the dangerous slime they are pumping daily through TV sets in hundreds of millions of living rooms across America, and we have emerged from the conflict unscathed,” he said.

A decision on whether to appeal may hinge on the outcome of another First Amendment case in Washington state, the Olympia resident said in a phone interview.

That case — State vs. TVI Inc. — involves a for-profit corporation that owns and operates several Value Village thrift stores in Washington.

The state’s Attorney General’s Office sued TVI under the Consumer Protection Act, alleging that TVI’s marketing deceived consumers by creating an impression that TVI is a nonprofit entity and that charities benefit from sales at TVI’s thrift stores.

The state appeals court sided with TVI, which argued that the CPA, as applied to its marketing, “unconstitutionally chills protected speech—charitable solicitation. … We agree with TVI.”

“In sum,” concluded a decision written by Judge Bill A. Bowman, “the CPA as applied to TVI’s inextricably intertwined commercial and noncommercial speech does not meet the exacting proof requirements necessary to give protected speech sufficient breathing room under the First Amendment.”

WASHLITE leader West says that if Washington appeals the TVI ruling, his group may do likewise against Fox — and consider trying to have the Fox News and TVI cases consolidated.

But WASHLITE came away with one small victory in the appeals court.

The panel agreed that Judge McDonald in Seattle Superior Court erred in awarding costs of $134.94 to Fox.

“Fox also seeks an award of attorney fees on appeal,” the panel wrote. “Because WASHLITE’s appeal was not frivolous, we decline to award attorney fees on appeal.”

WASHLITE was spared having to pay Fox News lawyers $200.

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