For most of the past three months, Fox News has downplayed coronavirus. The network's hosts have repeatedly claimed that the deadly virus is being overhyped by the media as a tool to attack President Trump, or even, as now-fired host Trish Regan said, that the whole thing is a “Democrat hoax.” The rhetoric is working: Studies have shown that regular Fox News viewers are far less likely to take the threat of coronavirus seriously than others. Fox News was by far the largest media platform in the country with this message; after a while, though, as the bodies piled up and the evidence of the viral threat became unassailable, the network and its key anchors shifted their approach, instead praising the president’s response to the pandemic and claiming that it was Democrats who were slow to act. Sean Hannity even made a (very deceptive) timeline arguing that Trump was early in identifying the threat. Clearly, the network hoped to move past its early denialism.
A new lawsuit aims to make Fox News face consequences, however. Last week, the Washington League for Transparency and Ethics — known as WASHLITE — sued the network, claiming that it had intentionally misled people and thus allowed coronavirus to spread.
“Defendants knowingly disseminated false, erroneous, and incomplete information, 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,” the complaint argued. “Defendants’ actions created an ongoing uncertainty amongst some members of the public as to the dangers of the virus and the rapidity with which the virus spreads.”
As part of the suit, WASHLITE is alleging that a member of its organization contracted the virus; the suit claims that Fox’s minimization of the COVID threat helped allow that to happen.
“The defendants have created an epidemiological hazard,” WASHLITE said in its lawsuit. “A subset of the population has and will continue to ignore or resist reasonable and necessary efforts to control and mitigate the virus and prevent mass death.”
Fox News dismissed the suit in a statement sent to the media. “Wrong on the facts, frivolous on the law,” said Lily Fu Claffee, general counsel for Fox News Media. “We will defend vigorously and seek sanctions as appropriate.”
Internally, though, some at the network are reportedly concerned about their legal exposure. The reporter Gabriel Sherman — author of the Roger Ailes exposé The Loudest Voice In The Room — gave an interview to MSNBC on Sunday claiming that network insiders are freaked out by the lawsuit. “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,” Sherman said.
Still, experts are skeptical that the lawsuit actually has a chance. As Amanda Martin, a media lawyer at the firm Stevens Martin Vaughn & Tadych, tells Mic: "Generally speaking, the First Amendment protects speech, even some false speech," explaining that "protections are even stronger for statements of opinion, such as saying that the 'liberal media were motivated by desires to harm President Trump.'"
Martin points out that false claims in advertising can "give rise to liability," but that media organizations have stronger First Amendment protections than does commercial speech.
"Over the years there have been a few cases against media, claiming that a broadcast or publication led to someone’s death," she says. "Those claims usually come in the form of a negligence claim, and they almost always fail. It is very difficult for a plaintiff to establish that the media have a generalized 'duty of care' to an audience and that they failed to meet that duty.”
"If this case were to be successful, I think it would be the first of its kind."
In short, the First Amendment gives the media broad permission to lie, especially claims are presented in the form of opinions. Furthermore, WASHLITE’s lawsuit is invoking the Consumer Protection Act to allege that Fox News is selling a dangerous product. "Ordinarily consumer protection laws are in place to protect consumers from faulty or defective products or some similar kind of deceptive activity," Martin explains.
"Though I strongly disagree with the messages that were put out by Fox and imagine that their broadcasts contributed to spread of the pandemic in America," she adds, "I don’t know of any case in which a consumer protection law has been applied to news media. If this case were to be successful, I think it would be the first of its kind."
In an interview with Courthouse News, Margaret Russell, a law professor at Santa Clara University in California, made similar points. “It will be difficult to apply the CPA to a network that has a different set of hosts with nuanced differences in their opinions,” Russell said. “Plus, their product is speech and they are not selling it in a traditional sense. They’re just offering opinions.”
Russell argued that the case is doomed to failure. “It will not go far,” she concluded.
Still, even if this particular suit isn’t destined to bring down big bad Fox News, perhaps it will at least remind the network that giving its hosts infinite latitude to make dangerous claims on-air can have actual consequences.