• by Wendy Davis  @wendyndavis, May 18, 2020

Fox News is slamming a Washington state nonprofit's “dangerous” and “frivolous” argument that it's entitled to proceed with a lawsuit accusing Fox of spreading false information about COVID-19.

The First Amendment generally protects news organizations from lawsuits over either opinions or non-libelous factual errors. But the Washington League for Increased Transparency and Ethics -- which recently sued Fox over statements about COVID-19 -- contends that the cable network "does not stand on equal footing as print media or broadcast television" when it comes to the First Amendment.

On Monday, Fox filed papers urging Superior Court Judge Brian McDonald in Seattle to reject that argument.

“Plaintiffs' position would allow the government to censor not just Fox News but also CNN, CNBC, MSNBC, Bloomberg, ESPN, and every other cable network,” Fox News writes. “That is as dangerous as it is frivolous.

Fox News' new court papers mark the latest development in a lawsuit filed last month by the Washington League for Increased Transparency and Ethics. The group alleged comments made on March 9 by Fox personalities Sean Hannity and Trish Regan deceived people about the pandemic, in violation of a state consumer protection law.

The original complaint didn't make clear what specific comments were allegedly deceptive. A video clip of Hannity's program from that date shows him 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.

Less than two weeks after the lawsuit was filed, Fox asked McDonald to dismiss it. 

Fox argued that the statements reflected the news commentators' opinions -- which are protected by the constitution.

“Accepting the complaint’s characterization of the speech at issue, the Fox commentators were expressing their view on the scientific question of how dangerous the Coronavirus is and how society should respond to it -- including what type of governmental action should be taken,” the organization wrote.

Fox added that even if the commentators' statements could be viewed as “factual” -- as opposed to opinionated -- they would still be protected by the First Amendment.

“If journalists can be sued for allegedly understating the dangers of the Coronavirus, then they can also be sued for overstating the dangers (thereby damaging businesses that are forced to close), and nobody will be free to express an opinion on either side of the debate without risking costly litigation,” Fox News argued.

The nonprofit responded last week by arguing that Fox News doesn't have the same degree of First Amendment protection as non-cable media.

“Fox is a cable programmer providing content to be presented on a private cable system owned by entities such as AT&T, Comcast, Spectrum and others,” the organization argues. “This case raises an entirely different set of questions than the protection of the First Amendment rights afforded to newspapers and broadcast television stations.”

Fox is now urging McDonald to reject that “astounding” position, arguing that the Supreme Court has previously ruled that cable broadcasters have First Amendment rights.

McDonald is expected to hold a hearing in the matter on Thursday.