A lawsuit accusing the cable network of spreading false information about COVID-19 is barred by the First Amendment, Fox News told a Seattle judge Thursday morning.
“I don't think it's rhetorical hyperbole to say that an objective assessment of this case demonstrates that this suit cannot proceed in an American court,” Michael Carvin, a Jones Day attorney for the cable news network, said during an hour-long hearing in front of King County Superior Court Judge Brian McDonald.
Fox is asking McDonald to quickly throw out the lawsuit, which was filed last month by the nonprofit Washington League for Increased Transparency and Ethics. The organization alleges that 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.
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.
Fox argued in written papers that the statements reflected the news commentators' opinions -- which are protected by the Constitution.
The cable channel 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 in its written papers.
At the hearing Thursday, McDonald questioned Carvin over Fox News' argument that the First Amendment protects allegedly false speech.
Carvin pointed to a 2012 Supreme Court decision striking down the Stolen Valor Act -- a federal law that made it a crime to lie about military awards. Justice Anthony Kennedy wrote in a plurality opinion that the First Amendment prohibits content-based restrictions on speech, unless it falls into certain historic categories like perjury or defamation.
McDonald wondered aloud at the hearing why slandering someone should be entitled to less First Amendment protection than allegedly spreading misinformation “in a pandemic situation, where lives are at risk.”
At the same time, McDonald had some tough questions for the nonprofit's lawyer, Catherine Clark.
The judge told Clark that the Supreme Court's decision to invalidate the Stolen Valor act shows that at least some untrue speech is protected by the First Amendment.
She countered that the Stolen Valor Act didn't involve statements relating to a public health threat.
Clark had argued in written papers that cable channels like Fox News aren't entitled to the same degree of First Amendment protection as newspapers or broadcast television.
At the hearing, she added that consumers pay for Fox News when they purchase cable subscriptions, and that the paid nature of the channel subjects its content to the state's consumer protection law.
McDonald appeared skeptical of that argument, noting that people also purchase newspapers.
The judge said he expects to issue a written decision by May 29.