The nonprofit organization that filed a lawsuit against Fox News claiming the news outlet violated a Washington state consumer protection statute with its coronavirus coverage said it would not back down following a motion to drop the case.
In a court filing submitted to the King County Superior Court in Washington state on Monday, the Washington League for Increased Transparency and Ethics tried to persuade Judge Brian McDonald to allow the case to proceed by arguing print media were afforded a different set of First Amendment rights than cable networks.
"Fox is a cable programmer providing content to be presented on a private cable system owned by entities such as AT&T, Comcast, Spectrum and others," WASHLITE's lawyer, Catherine Clark, argued in the court filing. "As is shown below, this case raises an entirely different set of questions than the protection of the First Amendment rights afforded to newspapers and broadcast television stations."
Fox News filed a motion to dismiss the lawsuit shortly after WASHLITE sued last month. The news outlet argued that the lawsuit was a "frontal assault on the freedom of speech” that “flagrantly violates the First Amendment and fails to state a claim.”
The network's opinion side has faced allegations of downplaying the threat of the virus during the early stages of the pandemic. Host Sean Hannity, who has the most-watched cable news program, went so far as to have his lawyer demand an apology and retractions from the New York Times over three columns that accused Hannity of downplaying the virus and putting his viewers at risk. The newspaper refused.
“This case raises some very serious and important issues," Clark told the Washington Examiner on Monday. "We look forward to seeing how the courts in the state of Washington address them.”
McDonald is expected to make his ruling at a hearing, which is scheduled for May 21.
In its 36-page filing, WASHLITE asked whether a cable news channel was entitled to First Amendment protections for content it broadcasts on a private cable television system owned by another entity and whether it violated a state consumer protection law that "claiming that COVID-19 is a hoax to subscribers of a private cable television system thereby deceiving Washington consumers."
Clark also argued Fox News was not granted the same rights under the First Amendment in the way a print publication was protected.
"Fox is a cable programmer providing content to be presented on a private cable system owned by entities such as AT&T, Comcast, Spectrum and others," she wrote in the court filing. "As is shown below, this case raises an entirely different set of questions than the protection of the First Amendment rights afforded to newspapers and broadcast television stations."
In its motion to dismiss, Fox News made the case that “claims here are frivolous because the statements at issue are core political speech on matters of public concern. 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 motion also included a 61-page appendix detailing what Fox News argued were the inaccuracies in the WASHLITE complaint, with transcripts showing Fox News's on-air talent warning about the severity of the virus, and pointing out commentary downplaying the outbreak from multiple media outlets, including CNN and the New York Times.
Sworn testimony from four WASHLITE members was included in the group's response, all of whom were claiming to have suffered specifically as a result of Fox News's coronavirus pandemic coverage.
Among them was David Koenig, a construction contractor who alleged that Fox News's “downplaying of the dangers of the virus” led him to contract the coronavirus because he was convinced he did not need to take additional precautions to protect himself.
Lori Shavlik, another one of the group's founders who gave sworn testimony, said she was a Fox News viewer and that its coverage led her to buy a house and a new car in March, both of which have now caused her a burden financially.
“I am a regular viewer of Fox News through a cable subscription," she noted. "I personally watched a great deal of the programming referred to in the complaint in my living room. I am ashamed to admit that, as a result of this widely broadcast carrier wave of false information by Fox, I myself did not fully comprehend the dangers posed by the COVID-19 virus until the second week of March. As a result, I failed to order or purchase protective masks and other preventative supplies white they were still available, and have had to go to extreme lengths and/or pay higher prices to obtain these and such regular commodities as paper products, hand sanitizers, and, at times, food."
Fox News's general counsel Lily Fu Claffee argued that WASHLITE's case was flawed as it suggested the courts were the arbiters of what is newsworthy.
“WASHLITE fails to respond meaningfully to our motion to dismiss because there is no response to the glaring flaws of its case. In any event, WASHLITE’s core suggestion — that courts and judges ought to take the place of managing editors of cable newsrooms across the country so that the state may approve or suppress what information our audiences hear — should be rejected out of hand as absurd and unconstitutional," Claffee told the Washington Examiner. "We look forward to making our points in court.”
