President Trump, various federal officials and several governors have been criticized for initially failing to acknowledge the threat posed by the coronavirus and by doing so leading some to a false sense of complacency and that the threat was not real. In addition, there has also been criticism of media outlets and personalities that also downplayed the situation. One reaction to this is an “Open Letter to the Murdochs,” signed by a collection of journalists and journalism professors, asking the owners of the Fox News Channel to stop conveying misinformation to their audience, which skews into the older demographic thought to be at highest risk in the pandemic.
There has also been commentary about the possibility of suing Fox over the misinformation, and a report that the company was girding for such lawsuits.
But so far it appears that only one such lawsuit has been filed, by a public interest group in Washington state. The lawsuit claims that Fox violated Washington’s consumer protection laws by “willfully and maliciously engag[ing] in a campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus, COVID-19.” As a remedy, the lawsuit seeks an injunction barring Fox from “falsely and deceptively disseminating ‘News’ that the novel Coronavirus is a ‘Hoax’ that is not a danger to public health and safety, or otherwise interfering with or undermining the legitimate control measures imposed within the State of Washington for the limited time period under which the pandemic is brought under control and until the pandemic is brought under control[.]”
While the lawsuit has received some supportive coverage, the likelihood is that it will be dismissed. Courts have rejected prior attempts to use consumer protection laws as a basis for lawsuits against editorial products (including books, magazines, video games, computer software, films, television weather forecasts and radio and television advertisements), since they are not the sort of tangible products that such laws were designed to cover.
The U.S. Supreme Court has also held that First Amendment bars laws punishing actual lies, since they are a content-based restriction on speech. “Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth,” the Court majority wrote. “Truth needs neither handcuffs nor a badge for its vindication.”
Similarly, it is difficult to apply more traditional media law principles to “fake news.” Even if the term can be adequately defined, in order to be legally actionable the statement(s) at issue must contain provably false information that actually, directly harms someone, such as by hurting their reputation, invading their privacy, or causing another harm such as emotional distress. In this situation, it is hard to show that anything Fox or its hosts said directly harmed viewers who believed their statements downplaying the virus. After all, the viewers who believed what the saw on Fox would have to act on their own, such as by ignoring “social distancing” recommendations, thus harming themselves.
Also, the hosts and commentators on Fox would likely assert that their statements are opinion. Since a statement of opinion cannot be demonstrably proven true or false, making this assertion would likely lead a court to dismiss a claim against over such a statement.
Finally, the remedy sought in the Washington state case — an injunction against further statements downplaying the pandemic — would be an extraordinary remedy in that it would be a prior restraint. The U.S. Supreme Court has held that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,” and that such a restriction on speech can only be imposed when it is the least restrictive means of achieving a compelling government interest. As a result, there are only a handful of cases in which courts have imposed such limitations on speech.
Because of these First Amendment principles and precedents, it would be difficult to hold media outlets that downplayed the coronavirus threat legally accountable. That does not mean, however, that their commentary was ethical: but that’s a decision for them and their consciences, not a court of law.
UPDATE: “Clickbait” Headline Lawsuit Dismissed
Lawrence Lessig, the Harvard law school professor who sued The New York Times over a headline which he claimed was libelous and written as “click-bait,” has voluntarily dismissed his lawsuit, which I wrote about last month. Lessig’s motion, filed April 13, says that he is dismissing the suit “in light of the defendants’ decision to correct the offending publication at issue[.]” The online version of the Times story that led to the lawsuit now has a revised headline — the same one that appeared in the print version — and lede, and an editor’s note explaining the changes.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication and is Of Counsel to Fenno Law in Charleston/Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.