A Washington State appeals court on Monday agreed with a lower court’s decision to rubbish litigation against Fox News by an activist group in connection with COVID-19 broadcasts disseminated by the conservative network.
The group, known as WASHLITE, sued Fox under the Washington Consumer Protection Act (CPA). WASHLITE is an acronym for Washington League for Increased Transparency and Ethics.
WASHLITE alleged that Fox’s coverage of the novel coronavirus pandemic violated the CPA because it was branded as “news” coverage — but really wasn’t. The group claimed that Fox “knowingly disseminated false, erroneous, and incomplete information” about the pandemic “which was reasonably relied upon by the public and which had the effect of delaying and interfering with the implementation of effective mitigation and countermeasures against the virus.”
In other words, the group blamed Fox News for playing a role in allowing the coronavirus to spread. And it claimed the spread of the virus caused harm to various WASHLITE members’ health and livelihoods.
WASHLITE delayed the litigation by using a procedural rule to kick the initial judge off the case and to request a new judge. Fox eventually moved to toss the case based on the First Amendment’s freedoms of speech and of the press — and took jabs at WASHLITE using George Orwell’s “1984” and a reference to Robespierre’s “Reign of Terror” in the process.
WASHLITE countered that Fox wasn’t an “authentic news source such as the Washington Post” and did not deserve the same level of First Amendment protections as other news outlets the group considered to be more legitimate. Other media organizations submitted amicus briefs to support Fox’s legal argument that the First Amendment did, indeed, provide protection for Fox broadcasts. But those briefs were naturally limited to the legal issue at hand; they were silent as to the merits of Fox News programming.
To the shock of few (if any) legal observers, a trial judge tossed the case.
A unanimous three-judge panel on the Washington Court of Appeals on Monday agreed that the case belonged in the dumpster. The appeals court noted the legal issues at play as such:
First, [WASHLITE] contends that because Fox provides its programming content through third party cable providers, it has no First Amendment rights independent of these cable providers. Second, it maintains that false statements relating to a global pandemic are not protected speech. We reject both arguments.
The first argument was based on a narrow reading of a Clarence Thomas concurrence in another case, Denver Area Educational Telecommunications Consortium v. FCC, which involved obscenity content on cable television. The trial court judge and the appellate bench ruled that the WASHLITE argument should not prevail: Fox News has independent First Amendment protection regardless of how its content is disseminated. Per the court:
Nothing in Denver stands for the proposition that cable programmers lack freestanding First Amendment rights. And the argument is inconsistent with the court’s holding in Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 626, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994), where the court addressed a challenge to a law requiring cable operators to devote a portion of channels to the transmission of local broadcast television stations. In that case, the court recognized that both “[c]able programmers and cable operators engage in and transmit speech” and thus “are entitled to the protection of the speech and press provisions of the First Amendment.” Id. at 636. The fact that Fox offers its programming through cable providers does not lessen the extent of the First Amendment protections it enjoys in the context of direct state regulation.
Next, the appellate court rejected WASHLITE’s claims that Fox’s broadcasts should not be afforded First Amendment protection “because they are false.”
“We reject this contention because the challenged statements implicate matters of public concern and thereby fall squarely within First Amendment protections,” the court wrote. The judges next rejected WASHLITE’s claims that “false statements regarding threats to public health fall within an exception to the First Amendment’s broad protections.”
The court found that “the challenged statements, concerning a global pandemic affecting the entire country and made in the context of cable news programs watched by millions of viewers, clearly implicate matters of public concern and receive special First Amendment protections no matter how outrageous the statements may be.” Also, the court recognized that “none of the limited exceptions to the First Amendment apply to the false statements made by Fox hosts and guest commentators.” (The exceptions, the court pointed out, involve “incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography, fraud, and true threats.”)
Later, the appellate court chided WASHLITE for using elements of defamation law to attempt to prop up a claim under the state CPA. The court said it would “not rewrite” the CPA to comport with the claims made by WASHLITE in this litigation — it has no power to do so.
To conclude, the court held as follows:
WASHLITE’s allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State’s undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.
And, it quoted the U.S. Supreme court in United States v. Stevens (2010) to opine:
The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
The appeals court did hand WASHLITE a win on costs and on appellate attorney’s fees. It held that the activist group did not have to pay $134.94 in costs or associated attorney’s fees on appeal. WASHLITE did not challenge a $200 statutory attorney’s fee payment to Fox News, the appeals court noted.
WASHLITE board member Arthur West reacted to the appellate decision via an email to Law&Crime. In the message, West said that WASHLITE may attempt to consolidate its case with another recent Washington Court of Appeals decision for an appeal to the Washington Supreme Court. West wrote, in part, as follows — opinions are his:
Over 600,000 Americans have died from Covid-19 since we originally filed the case against FOX. Yet FOX continues to push a dangerous disinformation campaign concerning the Coronavirus response even while new cases are spiking and our healthcare system in a number of States is at the breaking point.
We continue to believe that cable providers like FOX, who enjoy what are essentially monopoly positions in providing content to hundreds of millions of Americans via cable “news”, are harming the citizens of this country under color of what they champion as unfettered free expression under the 1st Amendment, and that their dominant position in the marketplace has the capacity to drown out voices of reason in the electronic town square of the global village with dangerous and electronically amplified disinformation.
We are disappointed that the Court of Appeals, in an unpublished decision, has affirmed FOX’s rights to disseminate its brand of harmful propaganda via cable networks under color of the 1st Amendment.
The other case recently decided is State v. TVI. It examined whether for-profit thrift stores had produced marketing materials which left an allegedly “deceptive net impression . . . that customer sales directly benefit charities.” The Court of Appeals ruled that the statute the Washington Attorney General’s Office used in an attempt to force the stores to clear up the confusion was too strict to survive First Amendment scrutiny and needed “sufficient breathing room under the First Amendment.”
West said WASHLITE was waiting to see whether the AG appealed that decision and, if so, WASHLITE may choose to appeal its case against Fox News as well.
Later, West sent a second email which said the following regarding the author of this report: “You are a total NAZI and should be goose-stepping along the Autobahn with the rest of your Trumpie cronies.”
Read the full ruling below:
[Editor’s note: This report has been updated to include additional comment and reaction from WASHLITE’s Arthur West.]
[Image via Spencer Platt/Getty Images]
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