Fox News has moved to dismiss a lawsuit filed by a Washington state group accusing the network of “deceptive” coronavirus coverage by arguing that the First Amendment protects “false” and “outrageous” speech.
The network’s lawyers said in a motion seeking to dismiss the lawsuit that the “First Amendment does not permit censoring this type of speech based on the theory that it is ‘false’ or ‘outrageous.’ Nor does the law of the State of Washington.”
The Washington League for Increased Transparency and Ethics (WASHLITE) filed a lawsuit in King County earlier this month seeking a court order barring the network from “interfering with reasonable and necessary measures to contain the virus by publishing further false and deceptive content.”
The suit accused the network of violating the state’s Consumer Protection Act by “falsely and deceptively disseminating ‘news’ via cable news contracts that the coronavirus was a ‘hoax’ and that it was otherwise not a danger to public health and safety.”
The suit specifically cited Fox News host Sean Hannity and former Fox Business host Trish Regan for having “acted in bad faith to willfully and maliciously disseminate false information denying and minimizing the danger posed by the spread of the novel coronavirus.”
Though there are numerous examples of Fox opinion hosts downplaying the threat posed by the virus, many legal experts have dismissed the idea that the network could be sued for its coverage of the pandemic. One of the lawyers involved in the lawsuit has since withdrawn from the case.
“It’s Constitutional Law 101: the First Amendment protects our right to speak openly and freely on matters of public concern,” Fox News Media general counsel Lily Fu Claffee said in a statement. “If WASHLITE doesn’t like what we said, it can criticize us, but it can’t silence us with a lawsuit.”
The network’s 76-page filing, which includes dozens of pages of show transcripts and examples of other media outlets purportedly downplaying the risk of the virus early this year, argues that the hosts “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.”
The network’s lawyers argued that Hannity and Regan simply took part in an “intense public debate” over “how serious of a threat” the virus posed, noting that Hannity, in March, urged the elderly and people with compromised immune systems to take “extra, extra, extra caution.”
The motion also noted that when Regan wrongly argued that the “flu … can be even more deadly” than the coronavirus, she emphasized that she was “not saying that people should not take [the coronavirus] seriously.”
“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,'” the motion said. “In addition, the Complaint also fails because the statements are constitutionally protected opinions. Again, even accepting the Complaint’s characterization of the speech at issue, the Fox commentators were expressing their view on the scientific question of how dangerous the Coronavirus is and how society should respond to it — including what type of governmental action should be taken.”
The motion went on to cite CNN and New York Times coverage that compared the coronavirus to the flu, arguing that “If this type of allegedly ‘false’ speech can be censored, then free and open debate on matters of public concern is a dead letter.”