By Ken Stone
Claiming First Amendment protections, Fox News on Tuesday asked a judge in Washington state to dismiss a lawsuit by the nonprofit group WASHLITE.
The April 2 suit seeks to restrain the network’s coronavirus coverage, said attorney Christopher Lovrien, who filed the motion on behalf of conservative-leaning Fox.
Claims of Fox News misleading the public about the danger of the pandemic “are frivolous because the statements at issue are core political speech on matters of public concern,” says the 13-page motion with backup material.“The First Amendment does not permit censoring this type of speech based on the theory that it is ‘false’ or ‘outrageous,’” the filing said. “Nor does the law of the State of Washington.”
Thus the motion calls on Judge Brian McDonald to dismiss what it calls the misguided attempt to use a lawsuit to stifle Fox News commentary or the viewpoints of its hosts, including Sean Hannity.
Catherine “Cat” Clark, WASHLITE’s lawyer, said she has until April 23 to respond to the dismiss motion. A hearing on the motion is set for April 27 in King County Superior Court.
Does she consider her proposed injunction a “gag order” as Fox News contends?
“I cannot answer this question as it asks me to divulge information protected by the attorney client privilege and/or the work product doctrine,” she said via email, giving the same answer to: “Will you cite case law that lets you use consumer-protection laws against ‘news articles’?”
WASHLITE seeks a court injunction against Fox News, aiming to halt what plaintiffs call misleading reporting on the pandemic.
Lily Fu Claffee, Fox News Media general counsel, said in a statement: “It’s Constitutional Law 101: the First Amendment protects our right to speak openly and freely on matters of public concern. If WASHLITE doesn’t like what we said, it can criticize us, but it can’t silence us with a lawsuit.”The motion to dismiss characterizes the WASHLITE complaint as a “frontal assault on the freedom of speech” that “flagrantly violates the First Amendment and fails to state a claim.” (But it doesn’t cite the state’s anti-SLAPP law, intended to protect the public from efforts to “chill” free speech.)
The motion further says that “Fox’s statements are core political speech on a matter of public concern — how dangerous the coronavirus is, and how society should respond to it. Under the First Amendment and state law, the truth or falsity of this type of speech must be resolved through free and open debate in the marketplace of ideas — not through burdensome litigation seeking to impose legal penalties on political statements that a jury might deem ‘false’ or ‘outrageous.’”
Dean Nelson, director of the journalism program at Point Loma Nazarene University, says he thought the lawsuit was a bad idea from the start.
“Suing a news organization for making misleading statements isn’t going to go anywhere,” he said via email. “It wouldn’t be that hard to prove that the Fox commentators were expressing their opinions, or using political speech, which historically had been protected with First Amendment rulings.”
Nelson said it would be very hard for WASHLITE to prove that people were injured by Fox News statements alone.
“Free speech and a free press actually protects the dumb stuff,” he said. “So sometimes we just have to hold our noses and admit that dumb speech is usually protected speech.”
He added: “Did Fox falsely yell ‘Fire!’ in a crowded theater that led to a stampede that crushed people to death? That’s a toughie,” he said. “My personal opinion is that the best way to counter bad information is to provide better information, and more of it.”
Fox News also rejects WASHLITE’S use of the state’s Consumer Protection Act, saying it doesn’t apply to political commentary.
“The CPA regulates commercial speech, not political commentary in the news media,” the motion says. “It applies only to deceptions that harm consumers ‘in the conduct of . . . trade or commerce.’”
A Seattle Times case found that a “news article . . . is not published ‘in the conduct of any trade or commerce,’” the motion said. “A media telecast, like a news article, is not ‘trade or commerce.’”
Fox News says the filing includes a 61-page appendix “exposing the inaccuracies in the WASHLITE complaint, with transcripts clearly showing FOX News Channel hosts warning about the severity of the virus, while also pointing out commentary downplaying the outbreak from multiple media outlets, including CNN and the New York Times.”
Responding to the suit’s assertions that Fox News coverage has been deceptive, the motion says. “Fox’s opinion hosts have never described the Coronavirus as a ‘hoax’ or a ‘conspiracy,’ but instead used those terms to comment on efforts to exploit the pandemic for political points.”
Even if Fox News aired misleading information, the motion calls WASHLITE claims “frivolous” because the statements are “core political speech on matters of public concern.”
In a separate development Tuesday, Elizabeth “Liz” Hallock of Yakima, Washington, notified the court that she was withdrawing as a lawyer for plaintiff WASHLITE.
“WASHLITE is in excellent hands!” Hallock told Times of San Diego. “Personally, I am trying to run a business as a person with a history of cancer in a city district where our local councilman is telling people to violate the governor’s stay-at-home order and that this is all a deep state, Bill Gates, CDC conspiracy. I think many other business owners are really struggling right now to stay afloat while trying to keep themselves and their staff safe.”
Hallock, a Green Party candidate for governor who wrote the original lawsuit, said in her court filing: “All future pleadings should be addressed to Catherine Clark who will be representing the Plaintiff.”
Updated at 5:30 p.m. April 14, 2020
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