There has been some criticism, as perhaps you’ve noticed, over the way several Fox News programs, guests, and hosts have handled coverage of the COVID-19 pandemic. Vanity Fair Special Correspondent Gabriel Sherman sounded a vague alarm of liability days ago on MSNBC. But the truth is that suing Fox News over this is neither an easy nor likely successful task.
Let’s start with what Sherman had to say:
When I’ve been talking to Fox insiders over the last few days, there’s a real concern inside the network that their early downplaying of the coronavirus actually exposes Fox News to potential legal action by viewers who maybe were misled and actually have died from this. I’ve heard Trish Regan‘s being taken off the air is, you know, reflective of this concern that Fox News is in big trouble by downplaying this virus and The New York Times reported days ago that the Murdoch family was privately taking the coronavirus seriously. The Murdochs, of course, own Fox News. So, they were taken personal steps to protect themselves while anchors like Trish Regan and Sean Hannity were telling viewers that it’s a hoax and putting themselves in potentially mortal danger. So I think this is a case where Fox’s coverage, if it actually winds up being proved that people died because of it, this is a new terrain in terms of Fox being possibly held liable for their actions.
The problem is that such a claim will be difficult for a viewer to win, as even former Fox News anchor Megyn Kelly pointed out:
Anyone filing such a lawsuit would be laughed out of court and likely sanctioned by the court for filing a frivolous lawsuit. But, whatever you need to tell yourself to stay occupied during quarantine… https://t.co/c87n1bZSVG
— Megyn Kelly (@megynkelly) March 30, 2020
Let’s analyze the authorities.
Negligence
To prove negligence at common law, a plaintiff must prove that a defendant owed her a duty of reasonable care, that the defendant breached that duty, and that the breach caused harm.
Here, causation will be very difficult for a plaintiff to argue: the plaintiff’s own decision to go out into the community would almost certainly be viewed legally as a break in the causal chain between any statement downplaying COVID-19 and the actual harm suffered by the plaintiff. Plus, damage done by a virus is difficult to track to a source. Did the plaintiff pick up her infection by visiting a local pub after hearing Rep. Devin Nunes (R-Calif.) on Fox News suggest doing so would be good for the economy? (You can watch Nunes interview in the player above.) Or, did the plaintiff contract the virus while going to the grocery store the next day to buy needed groceries for her family? Or, did it come through a contact at work? Causation would be tricky at best.
Let’s talk about duty. Media defendants generally do not owe legal duties to their audiences. For example, in Yakubowicz v. Paramount (1989), a moviegoer stabbed another man to death after watching a violent movie. The stabbing included the recreation of a line from the movie. The victim’s father sued the studio, but the studio won. The Massachusetts Supreme Judicial Court ruled that the First Amendment protected the studio’s speech. First Amendment protection is broad; exceptions to it are narrow. The violent movie did not fall under the narrow “incitement to riot” exception to the First amendment. As such, the studio did not owe its audience a duty: the court concluded “that the defendants could not properly be found to have violated their duty of reasonable care by exercising protected rights of free speech.”
Similar courts have ruled that media defendants generally do not owe duties to their audiences, including Zamora v. CBS (1979), McCollum v. CBS (1988), and Yuhas v. Mudge (1974), the latter stating:
To impose . . . broad legal duty upon publishers of nationally circulated magazines, newspapers and other publications, would not only be impractical and unrealistic, but would have a staggering adverse effect on the commercial world and our economic system.
In Yuhas, a plaintiff tried to hold a publication liable for an “alleged defective product advertised in its magazine” where the magazine “did not manufacture, distribute, sell, test, warrant or endorse” the product or receive “direct pecuniary benefit from any sales” of the product.
But there are a few cases to the contrary, such as Weirum v. RKO General, Inc. (1975). There, a radio station was liable after a contest encouraged listeners to follow a car from place to place which contained a popular host. A group of listeners caused a deadly car crash. The court held that the crash was foreseeable and that the station therefore owed the victim a duty of care: “It was a competitive scramble in which the thrill of the chase to be the one and only victor was intensified by the live broadcasts which accompanied the pursuit.”
Still, negligence against media defendants is hard to prove.
Misrepresentation (a.k.a. Fraud or Deceit)
Misrepresentation claims are filed by defendants who are harmed after relying on the false statements of others. Different states describe the elements of the claim differently, but one definition from the Second Restatement of Torts, used by many jurisdictions, is as follows:
“One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.”
As one book points out, opinions by experts are actionable because the speakers are experts. However, most opinions are not actionable because reasonable listeners would know they are not statements of fact and cannot be relied upon. Additionally, for a misrepresentation claim to succeed, a “plaintiff must prove that the defendant intended to induce reliance.” News networks usually intend little more than that the audience keeps watching. And, if a “statement is so obviously wrong that people should see the falsehood, the plaintiff cannot rely on such a statement.”
A plaintiff can assume the risk herself of going out in public. That’s the last clear chance to avoid harm.
Misrepresentation falls victim to the same duty issues outlined above under the negligence discussion above. It is therefore hard to prove against a media defendant. In Winter v. G. P. Putnam’s Sons (1991), two plaintiffs used a book called the Encyclopedia of Mushrooms “to help them collect and eat wild mushrooms.” They ultimately ate the wrong mushrooms and were injured so seriously that they required liver transplants. The Ninth Circuit Court of Appeals refused to allow the plaintiffs to recover under misrepresentation or other theories:
Unless it is assumed that the publisher is a guarantor of the accuracy of an author’s statements of fact, plaintiffs have made no case under any of these theories other than possibly negligence. Guided by the First Amendment and the values embodied therein, we decline to extend liability under this theory to the ideas and expression contained in a book.
Again, we’re back to duty: the opinion concludes that “no publisher has a duty as a guarantor.”
Similarly, in Alm v. Van Nostrand Reinhold Co., Inc. (1985), another misrepresentation case, the publisher of an instruction manual was not liable for injuries to a plaintiff “injured when a tool shattered while he was allegedly following the instructions in the book for making that tool.” The publisher, again, had no duty to readers. In Smith v. Linn (1989), the publisher of a diet book was not liable for the death of a reader who allegedly followed its advice, lost 100 pounds, and then went into cardiac failure: “[a]lthough we are moved by the grievous circumstances surrounding the instant case, we will not disturb the proper ruling of the trial court in granting summary judgment on the basis of the first amendment right of the publisher.” Other defendants in that case were either settled or were dismissed.
Several of these cases differentiate between author and publisher, but the cases discussed earlier involving broadcasting entities seem to generally extend the concept of publishing to broadcasters — at least as corporate entities. Author liability is a separate matter. Plus, a few cases do open up publishers to liability where a publisher endorses a product. Hanberry v. Hearst Corp. (1969) kept alive a misrepresentation case filed by a woman injured by shoes deemed to be “good ones” by a Good Housekeeping “seal of approval.” One textbook suggests a differentiation between a communication (such as a violent movie) which results in injury (with no liability attaching) and an author’s misrepresentation which causes injury (such as the “seal of approval” case).
Defamation
Most media litigation surrounds defamation law. Defamation law deals with false statements of fact concerning an identified plaintiff which are published with fault (negligence toward or reckless disregard for the truth) and which result in damages. A viewer is not defamed when a network downplays the severity of a virus. A virus can’t sue for defamation: “I’m a really dangerous virus! Don’t you dare call me mild!”
Unlicensed Practice of Medicine
A state has the power to license professions in order to protect the public and to prevent unlicensed people from engaging in those professions. In New York, practicing medicine is defined as “diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.” Listening to a broadcast does not place a viewer into the type of personal contact predicated by licensing statutes. Conversations such as this one on Fox & Friends do not make its hosts unlicensed doctors.
IIED
That’s lawyer talk for Intentional Infliction of Emotional Distress. This is a claim which allows plaintiffs to recover if defendants purposefully do things which are so outrageous that they inflict distress. This claim is very hard to prove against a First Amendment defense.
Promissory Estoppel
This is a claim available to plaintiffs who reasonably rely on a promise made by a defendant and who wind up suffering some harm as a result. It’s enforced by courts to prevent people from going back on their word. A viewer of a Fox News program would likely not be able to use this claim because Fox News probably made them no concrete promises. Even if there was a promise, it would not be reasonable to rely solely on “advice” given in a news broadcast to conduct one’s personal affairs.
Bottom Line
Maybe — just maybe — a claim by someone who watches Fox News and who is harmed by the coronavirus would be successful through the hands of a very creative and diligent lawyer. Maybe. Such a win would be difficult. As one reporter following this situation summed up:
The First Amendment, in its blessed breadth, gives you pretty wide latitude to be a public health menace.
— Matt Pearce 🦅 (@mattdpearce) March 29, 2020
Menacing accusations aside, the legal point should be taken: the First Amendment is a powerful thing, even in tort law.
[Image via Drew Angerer/Getty Images]
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