In a 160-page court motion filed Thursday afternoon, Fox News beat down a Washington State activist group which sued the network over its coverage of the novel coronavirus. The document legally seeks to dismiss the case, but the language Fox News chose for its opening salvo is caustic enough to stand alone as a prime time opinion monologue. It uses the phrases “Ministry of Truth” — a reference to George Orwell’s dystopian novel 1984 — and “Committee on Public Safety” — a reference to Robespierre’s “Reign of Terror” during the French Revolution. Fox elsewhere likened attempts to use the courts to limit its free speech rights as akin to the playbooks of the “totalitarian” regimes of “Russia and Iran.”
Here’s the document’s acidicly juicy first paragraph, penned by Fox attorneys:
Plaintiffs launch a frontal assault on the First Amendment by seeking a gag order and a retraction by judicial fiat against Fox News for airing allegedly “deceptive” commentary about the Coronavirus outbreak. Anointing themselves as both the Committee on Public Safety and the Ministry of Truth, they seek to punish Fox for speech that they deem “false” and dangerous because it does not conform to the official viewpoint of the government and their own proclaimed omniscience and certitude. Plaintiffs request a prior restraint prohibiting Fox from airing future speech that contradicts the government’s proclamations. Worse, they request an order forcing Fox to recant past commentary and affirmatively endorse the government’s viewpoint. They also seek “treble damages” based on vague and unspecified harms that they claim to have suffered as a result of Fox’s commentary. By this lawsuit, Plaintiffs seek to restrain, control, and penalize what commentators and opinion hosts may say about the most pressing public controversy of our time. Fortunately, neither the First Amendment nor Washington state law allows such brazen interference with the freedom of the press. The case must be dismissed as a matter of law.
The original lawsuit, as Law&Crime previously reported, was filed by a group called the Washington League for Increased Transparency and Ethics, or WASHLITE for short.
Fox went on to accuse WASHLITE of “cherry-pick[ing] 18 different statements about the Coronavirus” from various Fox broadcasts, “plucking them out of context,” and “characterizing the statements as falsely contradicting the views of the Trump Administration and Governor Inslee [of Washington] by minimizing the lethality of COVID-19.” The court motion filed Thursday contains more than a hundred pages of transcripts. Among Fox’s arguments is that WASHLITE attributed statements to Sean Hannity when, indeed, a fill-in host was on the air the night WASHLITE cited; additionally, and perhaps embarrassingly, Fox says WASHLITE botched its filing by misattributing a quote to the wrong speaker in the wrong location: “[a] statement similar to that alleged in the complaint was made by then-Acting White House Chief of Staff Mick Mulvaney—but not on Fox News.”
Fox went on to provide examples of programming which cautioned viewers about the virus:
There is no allegation that Fox’s commentary has exclusively minimized the dangers of the Coronavirus, and indeed the opposite is true. Plaintiffs simply ignore the fact that the totality of Fox’s programming on the Coronavirus has repeatedly acknowledged the dangers of the disease while also providing a forum where diverse views can be aired and debated. Tucker Carlson repeatedly warned primetime viewers, more than a month before Governor Inslee declared an emergency, that the Coronavirus is “a real threat” and “a major concern” that they “should worry about.”
WASHLITE originally sued Fox on claims that Fox “willfully and maliciously engaged in a campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.” An amended WASHLITE complaint said Fox “contradicted the formal position of the Trump Administration, Governor Inslee, [and] the urgent messages of public health experts.” The group was so bold as to ask a judge to force Fox “to cease and desist televising any misinformation regarding COVID-19.” Fox News filed a separate, earlier motion to dismiss the case which was similarly critical of the group’s claims and motives; however, WASHLITE’s decision to amend its complaint legally required Fox, under Washington State’s Superior Court rules, to file Thursday’s additional motion to dismiss.
In this latest motion, Fox sought to trample any suggestion that it should tow the official line and similarly lambasted the argument that it should bend its coverage to the wills of a government or a judge:
Fox’s commentary on the Coronavirus is core political speech on a matter of public concern—how dangerous the Coronavirus is, and how society and the government should respond to it. Under both the First Amendment and state law, the value of this type of speech must be resolved through free and open debate in the marketplace of ideas—not through litigation seeking to impose legal penalties on statements alleged to be “false” or contrary to official government pronouncements. Even more clearly, a court cannot order a “prior restraint” on this type of speech, much less order a media outlet to affirmatively endorse the government’s viewpoint on this type of public controversy. Accordingly, the Complaint should be dismissed because it violates the First Amendment and fails to state a claim under Washington state law.
The Fox motion also said attempts to judicially stifle its First Amendment rights to free speech are right out of the playbooks of “totalitarian” regimes like Russia and Iran:
Plaintiffs thus seek to impose an official government-backed viewpoint that everyone must adhere to. That is the type of legal regime that prevails in totalitarian countries such as Russia and Iran, which recently enacted new laws criminalizing speech about the Coronavirus that they deem to be “false” or dangerous. But that is exactly the type of censorship that the First Amendment was designed to prevent.
Quoting the Supreme Court case which made it unconstitutional for schools to force children to recite a pledge to the flag, Fox then noted, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The Fox document further argued that suing a news organization for airing a viewpoint contrary to the government’s is tantamount to “wholesale viewpoint discrimination” (internal citations omitted):
Indeed, the entire point of a free press is to allow dissenting viewpoints that criticize the government for being wrong on important public issues. Accordingly, Fox cannot be penalized for airing commentary that dissents from the “orthodox” governmental view of how dangerous the Coronavirus is or what types of health and safety measures people should take in response to it.
Plaintiffs’ contrary argument would authorize wholesale viewpoint discrimination against anyone who disagrees with the government about the Coronavirus. That would violate the cardinal principal that “the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Even worse, the thrust of Plaintiffs’ argument would allow similar censorship on virtually every important political issue. For example, it would allow speakers to be penalized for contradicting the “formal position of the Trump administration” regarding the “public safety” threats posed by everything from illegal immigration to medical marijuana to global warming. By Plaintiffs’ logic, anyone who “misrepresent[s] the dangers” or spreads “misinformation” on these topics (as defined by the government) could be punished for causing others to “fail to take appropriate action to protect themselves and others” from harm. Indeed, Plaintiffs would make it unlawful even to “persuade[]” others to “ignore . . . the warnings of the Trump administration,” whenever such persuasion results in any “quantifiable [or] non-quantifiable injury.” It is hard to imagine a greater threat to the First Amendment, which protects the expression of dissenting viewpoints especially when it comes to arguing that the government is wrong on important public issues.
WASHLITE’s claims included intentional infliction of emotional distress (the “tort of outrage” under Washington State law) and a violation of Washington’s consumer protection law. WASHLITE at one point moved to replace the judge overseeing the case because its attorney believed the original judge could not give the group a “fair and impartial hearing.”
READ the full document below.
WASHLITE v. Fox News (Respo… by Law&Crime on Scribd
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