from the on-the-one-hand... dept
Pretty much everyone knew this was coming. Fox News’ coverage of the COVID-19 pandemic has been absolutely despicable — insisting that it was little more than the flu, was overhyped by Trump’s political enemies, and nothing anyone should be worried about, before turning on a dime to suddenly pretend they never said any of that earlier, and that suddenly it was always obvious it was serious:
Of course, a ton of people not only still remember the earlier messaging, but continue to insist it was correct. I’ve seen it pop up over and over again in various internet forums, where Fox News watchers still, to this day, insist that it’s little different than the flu and that all of the efforts to stop the spread are part of a “Democratic hoax” which was messaging straight from Fox News. The news channel, of course, is shameless in its buffoonlike support for the President’s messaging, which is now almost certainly contributing to people dying. It’s sickening.
But, that doesn’t mean that anyone should be able to sue to silence Fox News — but it was widely expected that there would be such lawsuits.
And now we’ve got the first one. As first reported by the Times of San Diego, a little-known non-profit in Washington is suing Fox News (it also throws in AT&T TV, and Comcast, claiming that they offer Fox News in their programming and “are named only insofar as they may have interests that would make them necessary parties, and no relief is sought from them”) and trying to get an injunction to get Fox News to stop pushing nonsense about COVID-19, claiming that its existing reporting violates the states consumer protection laws. The complaint filed in Washington state court is a joke, filed by a group that calls itself the Washington League for Increased Transparency and Ethics or “WASHLITE.” Except, as the Times of San Diego reports, it had trouble finding people who had heard of the organization before.
The group got a real life lawyer, Elizabeth Hallock — who, um, is “an attorney and risk management consultant, a certified family law mediator and owns the Sweet Relief marijuana retail store in Yakima”, and also is running for governor of Washington as a Green Party candidate — to write the complaint, and I’d suggest she keep one of her day jobs. The whole argument is that by broadcasting misleading information, Fox News “engaged in unfair and deceptive acts” under Washington’s Consumer Protection Act. Except, that’s not what the law means. The unfair and deceptive acts need to be actions not protected speech.
The San Diego article has quite the interview with Arthur West, who runs WASHLITE, and it feels like every word he said is designed to troll Ken “Popehat” White:
West denied that the nonprofit group (with perhaps 30 associate members) was aiming to stifle First Amendment rights.
?It?s like the theater thing,? he said. ?Up to the point where you get up in the theater and yell ?Fire!? you can say whatever you want. But when you get to the point where you are endangering the community ? that transcends the limits of the First Amendment.?
He also contends that commercial speech is involved, not private speech by members of the public.
Of course, we’ve covered to death why you should never ever listen to anyone who spews the nonsense “fire in a crowded theater” line, because it’s not good law, and was only mentioned (as an aside) in a since-superceded case that was about putting a politician in jail for protesting a war. Oh, and also, because it’s the prime excuse used by every would-be censor. And while “commercial speech” does have fewer protections than speech by the public, that doesn’t mean you get to just ignore the 1st Amendment. As despicable and awful as Fox News’ coverage has been, it’s all been protected free speech.
West also seems to think that, because people are dealing with Stay-at-Home orders around the country, the 1st Amendment is suspended or something:
Finally, ordinary conditions don?t apply in Washington, with First Amendment rights to assemble and travel already ?rightfully? restricted, he said.
?Reasonable time, place and manner restrictions on speech have almost universally been upheld in the extraordinary circumstances where such measures are necessary to forestall a clear and present danger,? he said. ?This is one such occasion.?
That is not how any of this works.
Also, a real lawsuit would include actual examples of the “unfair and deceptive acts.” This one does not. It just talks vaguely that the network “acted in bad faith to willfully and maliciously disseminate false information denying and minimizing the danger posed by the spread of the novel Coronavirus, or COVID-19, which is now recognized as an international pandemic.” As Ken White likes to say, vague complaints are usually the sign of censorial thuggery. Yes, it’s true that people are spewing garbage because of Fox News’ reporting, but that doesn’t mean the network violated the law.
By creating a false belief in a statistically significant percent of the population that the coronavirus is a ?Hoax,? the Defendants have created an epidemiological hazard. 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.
That’s not how the law works, and if it was, it would be a disaster for the media — even the media that is usually a lot more reasonable than Fox News propaganda. Sometimes reporters get things wrong. Sometimes they make mistakes. Making them liable in this manner would be a huge attack on a free press.
Also, as is evident from the interview in the San Diego coverage, the WASHLITE folks are entirely focused on trying to get internal Fox News documents in discovery — which they probably are never going to get access to as this case should be tossed out before that’s ever allowed.
Unfortunately, while Washington State used to have an anti-SLAPP law, due to some bad drafting the law was mostly tossed out as unconstitutional five years ago. Ridiculously, this seems to excite West, as when asked about this being a SLAPP suit, he told the Times of San Diego reporter about how Washington no longer has a real anti-SLAPP law. That’s not something you should be proud of, dude.
No matter what you think of Fox news and its despicable coverage, this lawsuit is a SLAPP suit and an attack on the 1st Amendment. That it’s filed by a group that purports to be about “transparency” and “ethics” and is run by a guy who claims to make his living as a public records advocate is shameful. Speak out all you want about how awful Fox News and its coverage has been. Tell everyone you can that it’s spewing propaganda and misinformation. But that doesn’t mean you get to sue and claim that it’s an “unfair or deceptive” practice. That’s just not how any of this works at all.
Meanwhile, the Daily Beast spoke to West as well, in which he notes that he’s a former automobile mechanic and then proceeds to brag about how much money he makes suing the government over public records requests.
?This might seem strange to you,? he added, ?but I make a very good living beating the government in court??mostly suing local jurisdictions, politicians, and taxpayer-funded agencies using Washington?s public records and open records laws. ?I?ve gotten a number of six-figure awards? I have a collection of European sports cars. I drive a Jaguar. I have three Mercedes 450 SLs and an Alfa Romeo. My house overlooks the water, and it was purchased with money from the liquor control board.?
West won a $192,000 settlement after filing an open-meetings lawsuit against the agency that governs Washington?s legalized marijuana industry.
Of course, thanks to a lack of a good anti-SLAPP law in Washington, it likely means he’s protected from having to pay Fox News’ (likely considerable) legal fees.
Filed Under: 1st amendment, anti-slapp, arthur west, consumer protection, covid-19, elizabeth hallock, slapp, washington
Companies: fox news, washlite