• by Wendy Davis  @wendyndavis, April 6, 2020

A nonprofit in Washington state has sued Fox News for allegedly violating a consumer protection law by engaging in a “campaign of deception” regarding the COVID-19 pandemic.

Fox's “malicious misrepresentation and false information deprived the public of information necessary to prevent and mitigate transmission of the virus,” the Washington League for Increased Transparency and Ethics writes in a complaint filed last week in King County Superior Court.

Elizabeth Hallock, the lawyer representing the nonprofit, is running on the Green Party for Washington governor, according to the Seattle Times.

“Defendants actions dissuaded the public, including elderly viewers, from taking necessary precautions to protect themselves from contracting the virus,” the complaint states, referencing broadcasts on March 9 by Sean Hannity and Trish Regan.

Fox News Media general counsel Lily Fu Claffee says the company will fight the lawsuit.

“Wrong on the facts, frivolous on the law. We will defend vigorously and seek sanctions as appropriate,” she states.

The complaint doesn't make clear what specific statements were deceptive. A video clip shows Hannity saying he “didn't like how we're scaring people unnecessarily” about the virus. “I see it, again, as like, let's bludgeon Trump with this new hoax,” he said.

While Fox News has faced much criticism over the March 9 broadcast, it almost certainly will defeat the lawsuit, First Amendment experts predict.

“This attempt to bring a products liability action against the news is a silly nuisance suit.  It has zero chance of prevailing under the First Amendment,” Bob Corn-Revere, a media lawyer with Davis Wright Tremaine, tells MediaPost.

First Amendment expert Eugene Volokh, a professor at UCLA Law, adds in a blog post that he is “quite confident the lawsuit is going nowhere.”

He adds that the lawsuit appears to center on Fox commentators' opinions -- which are protected by free speech principles.

“Perhaps around March 9 it would have been helpful for people to be more concerned about the danger rather than less,” Volokh writes. “But that just reflects that this is a lawsuit over opinions, and the First Amendment precludes holding public speakers liable for their opinions.”

Venkat Balasubramani, a Seattle-based attorney who practices First Amendment law, adds that courts often refrain from imposing liability on media companies for false or misleading speech.

"Overall a plaintiff would have to satisfy a pretty high burden in order to go after a media defendant and courts will be very reluctant to impose liability,” he says.

He adds that nearly 30 years ago, the 9th Circuit Court of Appeals ruled in favor of the publisher of the reference guide “Encyclopedia of Mushrooms,” which was sued by two people who said they got sick after relying on allegedly erroneous information in the book.