Fake News v. The First Amendment: Fox News Gets Sued for Alleged “Campaign of Deception” & Disseminating of Disinformation to Deny & Downplay the Danger of Coronavirus

Written by Christy O’Neil

Introduction

When official cases started to surface in the United States, for some people, COVID-19, was regarded as a deadly global pandemic. For others, it was seen as a “hoax,” and a conspiracy created by the liberal media, the Democrats, the Chinese government, the “deep state,” etc. As it turns out, the difference lies in what news channel they were watching. Nevertheless, COVID-19 has proven to be the deadly threat as it was reported by most of the press, reaching nearly five million cases and causing over 300,000 deaths worldwide by May 2020. While some viewers were misled about the severity, much less the reality of the virus and are now facing the consequences—so too is Fox News, the media organization responsible for spreading the misinformation. In fact, the news network is being sued over its coverage of the coronavirus.

Fox News is the most watched cable network in the United States, with an average of 3.4 million total primetime viewers through January, February and March 2020. The median age of its audience is 68; an age group at elevated risk of life-threatening illness from COVID-19, according to the Centers for Disease Control and Prevention (CDC).

Brief Coronavirus Timeline & Fox News’s Coverage

At the same time Fox News was netting its record for total viewers in early 2020, some of the network’s most popular hosts, contributors, panelists and guests were downplaying the threat of coronavirus. At the end of January 2020, finally following the lead of the World Health Organization (WHO), the Trump Administration formally declared a national health emergency. By February 28, there were officially 84,615 cases and 2,923 deaths worldwide. Meanwhile, during an evening broadcast that same day, Sean Hannity, the most watched figure on cable news, claimed COVID-19 was an invention. As Hannity explained this theory to his audience, he blamed Democrats for “sadly politicizing and weaponizing an infectious disease as their next effort to bludgeon President Trump.” In the weeks to follow, Fox News hosts, including Hannity and Laura Ingraham, described the virus as less threatening than the seasonal flu and went on to accuse liberal media outlets of being “panic pushers” and inciting “mass hysteria.” Another network contributor even said on live air, “[t]he more I learn about coronavirus, the less concerned I am.”

During the early stages of the outbreak, Fox News was frequently criticized for its coronavirus coverage, however, a steady flow of criticism was typical for the network, as it was no stranger to heated controversy nor harsh scrutiny. Nevertheless, even Fox News was taken aback by the firestorm of public outrage which emerged almost overnight, following one of the network’s most popular programs. Specifically, Hannity’s March 9, 2020 broadcast. This particular program aired on the same day that CDC statistics show that there were more than seven hundred confirmed cases and twenty-six deaths in the United States. In spite of this, that evening, Hannity proclaimed to millions of viewers on live television that COVID-19 was a “hoax.” The coronavirus hoax rhetoric did not stop there.

In fact, later that same night, while sharing the screen with a graphic reading, “Coronavirus Impeachment Scam,” Fox Business host, Trish Regan, echoed Hannity’s hoax theories on her primetime program. Regan went on to essentially mimic Hannity by dismissing coronavirus concerns as, “yet another attempt to impeach, demonize, and destroy the president.” The next day, Hannity again told his massive audience that coronavirus was a hoax. (emphasis added). Just as the day before, the broadcast  detailed Hannity’s theories involving the hoax and invention of coronavirus without any mention of the rapidly increasing COVID-19 cases and deaths in the United States.

On March 11, 2020, just two days after Fox News first broadcasted Hannity’s hoax theory to millions of viewers, the WHO officially declared the COVID-19 outbreak a global pandemic. In the days and weeks to follow, public backlash against Fox News exploded and shed a light on the network’s misinformed reporting. Most significantly, it triggered an important discussion involving the ethical duties and responsibilities that journalists owe to the public. Principles a majority of people are probably unaware of,  and while this can be attributed to many things, broadly speaking, this is arguably because society is accustomed to bad press. In general, “cherry picked information,” partisan reporting or even plainly false journalism is simply unexceptional in modern society and it is a problem that is rarely—if ever, addressed with anything more than a slap on the wrist in the capricious court of public opinion. This case appeared to be no different, that is, until April 2, 2020, when a lawsuit was filed against the Fox News Network because of its coverage of COVID-19.

The Lawsuit Against Fox News Network

This is the first time Fox News has ever been sued for its news coverage. In light of this, not only is Fox News going to be brought before a court of law and made to answer for the wrongful journalistic practices it has been accused of committing, but its journalistic standards and practices will be brought under a microscope and meticulously examined and scrutinized. Although this could spark necessary conversations about the functional and ethical problems in modern journalism, it also presents legal barriers rooted in the Constitution, specifically, concerning speech and press freedoms guaranteed and protected by the First Amendment.

First, by way of background as to the lawsuit, a non-profit called the Washington League for Increased Transparency and Ethics (hereinafter referred to as “WASHLITE” or “WSL”) filed a lawsuit against Fox News for ongoing violations of the Washington Consumer Protection Act which allegedly damaged and continues to damage plaintiffs. In general, the complaint asserts that the “pervasive campaign of misinformation and deception” perpetuated by Fox News misrepresented the dangers of COVID-19 regarding the threat, let alone the reality of the disease. These misrepresentations, WSL argues, caused “widespread confusion” and persuaded people to ignore the risks, as well as, the federal and state government warnings and directives to stop the spread. Likewise, it claims the deception, which is still televised by Fox News, caused the public “to fail to take appropriate action to protect themselves and others from the disease, mitigate its spread, and contributed to a public health crisis.”

WSL’s complaint concludes, because of these ongoing violations, Fox News is not only “injurious to the public interest,” but it also has the capacity to injure more people through its deceptive statements and pervasive misinformation. With that in mind, WSL seeks declaratory and injunctive relief, specifically, calling for a judge to formally prohibit Fox News from airing false information about the COVID-19 pandemic, and to order Fox News to publicly issue specific retractions of each and every false or misleading statement relating to COVID-19.

In response, Fox News moved to dismiss the lawsuit, reasoning that WSL’s claim was “wrong on the facts, frivolous on the law.” Additionally, Fox News general counsel stated, “it is Constitutional Law 101: The First Amendment protects our right to speak openly and freely on matters of public concern.” She went on to claim that if WSL “doesn’t like what we said, it can criticize us, but it can’t silence us with a lawsuit.” On the other hand, according to WSL’s counsel, silencing Fox News was never the goal.

On the contrary, WSL maintains that the suit is not about prohibiting free speech, but rather, it is about ensuring that news organizations convey accurate information. Nevertheless, the back and forth between counsel actually embraces the ultimate questions in this case. Whether WSL truly prohibited from doing anything more than merely criticizing Fox News for their coverage, and further whether members of the press can ever be legally silenced with a lawsuit. With respect to the first question, in most cases the answer is yes. Needless to say, members of the press are almost never sued over something published. Simply put, it is a losing battle because the odds are stacked heavily in favor of the press and this follows the well settled law favoring First Amendment protections described below.

First Amendment Freedoms: Law Strongly Favors Protections Over Exception

The underlying principles favoring First Amendment freedoms follows decades and decades of case law establishing, promoting and shielding the values and fundamental rights grounded in the First Amendment. The very principles existing today. For better or worse, First Amendment freedoms relating to the press are among the most vigorously and consistently protected. What is more, courts are increasingly reluctant to apply exceptions to free speech, particularly, when it comes to second guessing media outlets decision regarding what to air or publish. Unfortunately for WSL, it is for the worse, as the First Amendment is the most profound and damning barrier WSL will face throughout its case against Fox News.

To clarify the relevant law, in a nutshell, the First Amendment protects the right to make false statements in many circumstances, including when the speaker is a news organization. The Supreme Court has repeatedly held in favor of strengthening and protecting freedom of the press. The scales tipping this way dates back to 1964, when the Supreme Court first laid the groundwork for a myriad of historic decisions protecting freedom of the press under the First Amendment. In New York Times v. Sullivan, the landmark defamation action against a newspaper, the Court concluded that “even half-truths” and “misinformation,” are protected speech. Protected speech cannot be restricted nor punished. The only relevant exception to the Court’s holding and would render a news speech “unprotected” is proof of “deliberate falsehood or reckless disregard for the truth.” Since then, countless decisions followed suit, mirroring the rationale set out by the Supreme Court, as well as expanding upon the already powerful protections of speech. Likewise, in general, courts have routinely adhered to the general expectation that the news will not be liable.

Moving past the spoken words themselves and to the effect as in this case, several courts have concluded that broadcasters and publishers cannot ever be liable for what their words predictably cause a person to do. (emphasis added). Put differently, the First Amendment bars liability of a news publisher “even if it was foreseeable that the information they disseminated might be used in a negligent or dangerous way.” In another case that involved publishers of a mushroom “encyclopedia” who shared false health-related information in their book, two of their readers needed to receive liver transplants after relying on the false information in the book to unknowingly eat a deadly fungus. The circuit court in that case refused to hold the publishers liable completely. The court declined to extend liability to “the ideas and expression contained in a book.” Considering this case in particular, it is difficult to see an outcome that finds Fox News liable for similar “ideas and expressions.”

Conclusion

In the end, the once little-known Washington non-profit may lose its case against Fox News. But the impact of it will be felt and already has been. In fact, Fox News’s abruptly changed in the tone of its coverage, now treating what it once called a “Hoax”, as a serious threat and evolving news story. This happened without a judges’ formal order, but likely as a result of WSL and the public outcry sparked by its complaint. Likewise, dozens of journalists and journalism professors across the country signed an open letter to the Fox News Corporation to call attention to the same complaints raised by the Washington non-profit.

Only time will measure the impact of this case and the ripples to arise from it. Only time will tell whether Fox News is to blame for its COVID-19 coverage and for some people, whether their choice of news was a fatal one. In light of this, the Washington non-profit is largely to thank for this important realization of the degree of danger that could be caused by poor journalism. More importantly, it likely triggered public recognition of the practices of Fox News. Even if it is not held liable by law, is will likely be blamed for decades to come in the court of public opinion. In light of this, while WSL was the first known case of its kind against the Fox News, with everything considered, it is not likely to be the last.

Sources

Amended Complaint, Washington League for Increased Transparency & Ethics v. Fox Corporation (Wash. Sup. Ct. 2020) (No. 20-2-07428-4 SEA).

Brian Steinberg, Fox News Moves to Dismiss Lawsuit Questioning Coronavirus Coverage, VARIETY, Apr. 14, 2020.

Caleb Ecarma, Fox News Is Preparing to Be Sued Over Coronavirus Misinformation, VANITY FAIR, Apr. 6, 2020.

Complaint at 4–5, Washington League for Increased Transparency & Ethics v. Fox News (Wash. Sup. Ct. 2020).

See De Filippo v. Nat’l Broad. Co., 446 A.2d 1036, 1040 (R.I. 1982).

Ingraham: Trump confronts the panic pushers, (Fox News television broadcast Mar. 10, 2020).

Leonardo Bursztyn, Aakaash Rao, Christopher Roth & David Yanagizawa-Drott, Misinformation During a Pandemic, BECKER FRIEDMAN INSTITUTE FOR ECONOMICS, UNIV. OF CHICAGO, Apr. 2020.

Lindsey Ellefson, Fox News Scores Record Ratings for 1st Quarter in Primetime and Total Day, THE WRAP, Mar. 31, 2020.

Michael M. Grynbaum, Trish Regan, Fox Business Host Who Dismissed Virus Concerns, Departs, NEW YORK TIMES, Mar. 27, 2020.

Matthew Renda, Fox News Faces Lawsuit Over Its Coronavirus Coverage, COURTHOUSE NEWS SERV. Apr. 3, 2020.

New York Times v. Sullivan, 376 U.S. 254, 273, 300 (1964).

Paul Farhi, Conservative pundits blame a grab bag of supposed villains amid the coronavirus outbreak, THE WASHINGTON POST.

Situation Report 117, CORONAVIRUS DISEASE (COVID-19) SITUATION REPORTS, WORLD HEALTH ORGANIZATION, May 16, 2020.

See Todd Gitlin & Others, Rupert Murdoch, Fox News’ Covid-19 misinformation is a danger to public health, THE GUARDIAN.

Tumminello v. Bergen Evening Record, Inc., 454 F. Supp. 1156, 1160 (D.N.J. 1978).

See Zack Beauchamp, A disturbing new study suggests Sean Hannity’s show helped spread the coronavirus, VOX, Apr. 22, 2020.

Video, Hannity: Coronavirus doesn’t discriminate based on political affiliation, FOX NEWS, March 11, 2020.

U.S. DEP’T OF HEALTH & HUMAN SERVICES, CTR. FOR DISEASE CONTROL & PREVENTION: CORONAVIRUS DISEASE 2019, PEOPLE WHO ARE AT HIGHER RISK (2020).

United States v. Alvarez, 184 F. App’x 876, 881 (11th Cir. 2006).

Winter v. G.P. Putnam’s Sons – 938 F.2d 1033, 1036 (9th Cir. 1991).

Photo courtesy of IndieWire.

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