Fox News asks court to toss lawsuit calling network a public health risk

Fox News on Tuesday asked a Washington state judge to toss a lawsuit that alleges the news outlet’s dissemination of false information about the coronavirus poses a threat to public health.

In a court filing, the media outlet denied that its opinion hosts had downplayed the severity of the pandemic, and said statements by Fox News hosts Sean Hannity and Trish Regan cited in the lawsuit were protected under the First Amendment. 

“The claims here are frivolous because the statements at issue are core political speech on matters of public concern,” Fox News wrote in a motion to dismiss filed Tuesday in a King County, Washington, trial court.

“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,” it said.

The lawsuit, filed earlier this month by the nonprofit group Washington League for Increased Transparency and Ethics, marks a dramatic escalation in a fight over the parameters of free speech during a public health crisis.

On the same day the April 2 suit was filed, dozens of journalism professors and working journalists penned an open letter to Fox News heads Rupert and Lachlan Murdoch, accusing the outlet of regularly subjecting its viewers to misinformation about the pandemic. 

Cable news networks including CNN and MSNBC skew older, as all three cable networks have audiences with an average age that is over 60 years old. The average age for Fox News viewers is 65, placing them in a population that the Centers for Disease Control and Prevention considers to be at risk for serious illness from the coronavirus, which has infected some 610,000 in the U.S. and killed more than 26,000. 

Faced with widespread public criticism last month, Fox Business announced that a show hosted by Regan was on “hiatus,” after the host said the coronavirus is “another attempt to impeach” President Trump. 

Regan and Hannity are singled out in the lawsuit as having amplified the falsehood that the virus is a “hoax” and “conspiracy,” and that the coronavirus is no more dangerous than the common flu. 

Hannity defended his coverage in an interview with Newsweek earlier this month, saying there is “irrefutable evidence that I have taken this seriously way before most in the media did.” 

The complaint filed by the Washington group alleges that Fox News’s broadcasting of false information about the coronavirus violated Washington state’s consumer protection statute, and intentionally inflicted emotional distress. 

The group says Fox News “willfully and maliciously” spread false information in February and March to its average audience of 2.5 million viewers. By denying or minimizing the danger, the network “had the effect of delaying and interfering with the implementation of effective mitigation and countermeasures against the virus,” the complaint alleges. 

The lawsuit — which names the network, its parent companies, Rupert Murdoch and AT&T and Comcast as defendants — seeks both declaratory relief, and asks the judge to block the network from broadcasting false information about the pandemic in the future.

Elizabeth Hallock withdrew as counsel for the Washington League, according to court filing on Tuesday, the same day Fox filed its motion seeking the case’s dismissal.

Catherine Clark, who is now counsel for the ethics group, said the case raises questions about what is appropriate speech when the country is under a national health emergency, as declared by the federal government.  

“This case asks what are we doing to each other as a country when we’re under such an order from the government over something so vicious and pernicious as this disease, where nobody has herd immunity,” she told The Hill. 

Legal experts said that while Fox News may deserve criticism for its coverage, courts are unlikely to intervene to police its content.  

“One might argue that some of Fox News hosts’ statements about the coronavirus have been so patently politically-driven and irresponsible that viewers should take everything they say with a huge grain of salt. But the First Amendment protects this,” said Margaret Russell, a law professor at Santa Clara University.

In its brief, Fox called the complaint a “frontal assault on the freedom of speech” that “flagrantly violates the First Amendment and fails to state a claim.”

It said statements on Fox “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.’ ”