A Washington state judge correctly dismissed a lawsuit filed against Fox News for allegedly presenting programs that minimized the threat of the coronavirus. The lawsuit was flawed from its incipiency, because such an action threatens a media entity’s core right to editorial discretion.
The Washington League for Increased Transparency and Ethics, along with unnamed representatives of consumers of cable television services, sued Fox in state court under Washington’s Consumer Protection Act. The group sought from the court an order directing Fox to issue retractions and to desist from further programming or content that contained misinformation about the coronavirus.
Fox filed a motion to dismiss on First Amendment grounds. The network argued that its commentary on coronavirus is core political speech on a matter of public concern or importance.
On May 27, 2020, Judge Brian McDonald granted the motion to dismiss.
“The speech in this case involves matters of public concern that is at the heart of the First Amendment’s protection,” he wrote in Washington League for Increased Transparency and Ethics v. Fox Corporation.
Washington League for Increased Transparency and Ethics had argued that Fox had promoted false speech. However, Judge McDonald cited the U.S. Supreme Court’s decision in United States v. Alvarez (2012), in which the Court invalidated part of a federal law that criminalized lying about receiving military medals.
McDonald quoted Justice Anthony Kennedy’s statement in Alvarez that “falsity alone may not suffice to bring the speech outside the First Amendment” and “the statement must be a knowing or reckless falsehood.”
There is another fundamental reason why this lawsuit was doomed. Media entities have the right to editorial discretion. They have the right to offer commentaries and commentators who hold different viewpoints and opinions on a wide range of topics. To punish a news organization for the content of some commentators would be tantamount to trashing the very concept of editorial discretion.
The debate over the coronavirus has been intense. But as the Reporters Committee for Freedom of the Press pointed out: “[T]hat debate means that the First Amendment matters more now, not less, and regardless of who is doing the speaking or debating, it should be vigilantly protected.”
Kudos to Judge McDonald for tossing an absurd lawsuit.
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).