Fox News is nervous. This is what Gabriel Sherman, author of a New York Times-bestselling book about the cable news giant, recently told MSNBC. Sherman said Fox News insiders are expressing concern that the network’s “early downplaying” of COVID-19 might open it up to “legal action by viewers who maybe were misled and actually have died from this.”
Days later, the possibility of a lawsuit was realized. On April 2, a nonprofit called the Washington League for Increased Transparency and Ethics sued Fox News in Washington state court. The suit contains claims for violation of the Washington Consumer Protection Act and the tort of “outrage” (otherwise known as “intentional infliction of emotional distress”). It alleges that the country’s most-watched cable news network “knowingly disseminated false, erroneous, and incomplete information” to the public about COVID-19. By labeling the virus a “hoax” and “conspiracy,” the suit says, Fox News hurt efforts to contain it and to “forestall mass death.”
For some, a lawsuit accusing Fox News of broadcasting misinformation has genuine appeal. As individuals, citizens, and human beings collectively living through this pandemic, we are grieving, frustrated, and, yes, outraged. A lawsuit perhaps brings a measure of comfort. It is a small show of power in a situation in which many feel powerless. It is a vehicle for blaming someone or something for the hurt.
Yet, despite any visceral appeal to this suit (or the others that could follow), it is unlikely to be legally successful. Nor should it be.
First Amendment Standards
Although the particulars of any legal defense would depend on the precise claims, the types of claims likely to be made against Fox News (and those made in the Washington suit) face legal hurdles. The most obvious among them is the First Amendment, which protects the right to make false statements in many circumstances. The Supreme Court wrote in its 2012 decision in United States v. Alvarez that “some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”
These First Amendment protections do not disappear when the speaker is a media outlet. As the Supreme Court stated in New York Times v. Sullivan — a defamation case against the newspaper — First Amendment protection exists even for “half truths” and “misinformation,” at least absent proof of deliberate falsehood or reckless disregard for the truth.
Courts have held that the First Amendment bars liability against broadcasters and publishers even if it was foreseeable that the information they disseminated might be used in a negligent or dangerous way. For example, in DeFilippo v. NBC, the Supreme Court of Rhode Island refused to hold a broadcaster liable for the death of a 13-year-old who tried to imitate a stunt he saw on The Tonight Show. Likewise, courts have refused to hold publishers liable for sharing false health-related information. The Ninth Circuit, for example, held in Winter v. G.P. Putnam’s Sons that the publishers of The Encyclopedia of Mushrooms could not be liable for the liver transplants that two of its readers needed after relying on the book to select fungi to eat.
A plaintiff might try to argue that a broadcaster’s false speech falls into a narrow First Amendment exception, such as incitement of imminent unlawful action. But it is difficult to see how an exception might apply here, especially given how loath courts typically are to second-guess the media’s decisions about what to air or publish. As a Los Angeles Times reporter tweeted about the potential for a COVID-19-related lawsuit against Fox News: “The First Amendment, in its blessed breadth, gives you pretty wide latitude to be a public health menace.”
Nor is the Constitution the only obstacle to claims against Fox News. To the extent a claim alleges negligence, it would be difficult to argue Fox News owed a legal duty to the public at large. (This is in contrast to an ethical duty. More than 100 journalists and journalism professors have signed a letter to Fox Corporation Chairman Rupert Murdoch and his son, CEO Lachlan Murdoch, that accuses Fox News of violating “its duty to provide clear and accurate information about COVID-19” and of endangering its viewers.) A New Jersey federal court stated in Tumminello v. Bergen Evening Record, Inc. that although accuracy is desirable, “imposing a high duty of care on those in the business of news dissemination and making that duty run to a wide range of readers or TV viewers would have a chilling effect which is unacceptable under our Constitution.” Moreover, beyond duty, it could be difficult to prove causation — that particular statements by Fox News hosts or anchors, and not other conduct or events, led to sickness and death.
Where is the FCC?
In imagining what other legal mechanisms might be used to hold Fox News accountable, some have pointed to the Federal Communications Commission’s “broadcast hoax” rule or “news distortion” policy. The broadcast hoax rule bars FCC licensees from broadcasting “false information concerning a crime or catastrophe” that meets three criteria: the broadcaster knows of its falsity, it is foreseeable that the broadcast will cause substantial public harm, and the broadcast directly causes substantial public harm. Separately, under the FCC’s news distortion policy, licensed broadcasters “may not intentionally distort the news.” In describing the policy, the FCC notes that “rigging or slanting the news is a most heinous act against the public interest.”
Although the broadcast hoax rule and news distortion policy may seem applicable and useful at first glance, the FCC has no direct authority over network news providers like Fox, ABC, NBC, or CBS. Any legal action under the broadcast hoax rule would need to be taken against the stations that carry Fox News, making such an action more difficult. The news distortion policy is just that, a policy. And while a violation of it can inform the FCC’s licensing decisions, it otherwise has limited bite.
Despite the various hurdles to a legal action against Fox News, the wisdom or success of a lawsuit need not be judged solely on whether the plaintiff wins in court. It may be that any suit against the network is intended primarily to shame, scare, or silence. Perhaps, if this is a key goal, the suit — or even the threat of one — might have some impact. Gabriel Sherman indicated in his MSNBC appearance that Fox’s fear of legal liability was a reason it took host Trish Reagan off the air. Regan had called COVID-19 a “scam” intended to undermine the president.
The Risk of Reverberations
But there are reasons to be wary of adopting lawsuits as a tactic for controlling what information media outlets disseminate—even if it is to punish Fox News, and even if it is to curb false public-health information. Suing a media company to influence what it broadcasts or publishes is a slick and hazardous slope. This year alone, President Donald Trump’s reelection campaign has sued three news outlets—The New York Times, The Washington Post, and CNN—for defamation. As commentators have said, these suits are legal long shots; the First Amendment sets a high bar for defamation plaintiffs to clear. But the Trump campaign’s likely goal is not a legal victory; it is intimidation. And while these three media powerhouses might not be cowed, Georgetown Law’s Joshua Geltzer and Neal Katyal have correctly pointed out that smaller, local media outlets might be. For her part, the lawyer who filed the Washington suit — who also happens to be a Green Party candidate for governor — told the Seattle Times: “We are not trying to chill free speech here.”
And if the lawsuit against Fox News is successful, the fallout on other media outlets could be significant. Among the questions journalists might ask: could an outlet be liable for airing a live press conference by Trump in which he made false statements and not providing sufficient context or fact-checking with respect to those statements? Whether and how to broadcast these press conferences are questions journalists are debating now, and their practices are rapidly evolving. Journalists, not judges, are in the best position to make these calls.
In this moment, when COVID-19 has laid bare so many societal frailties, the desire to do something—like take legal action—is strong and understandable. But we might also use this moment to take a step back. The scourge of disinformation and propaganda in our information system is not new. And it is not limited to Fox News. Rather, Fox News broadcasting false statements about COVID-19 is but a symptom of complex and overlapping phenomena. One of these, as Harvard researchers have argued, is that Fox News and other outlets, like Breitbart, are part of an “insulated right-wing media ecosystem” that is “susceptible to sustained network propaganda and disinformation.” Another phenomenon is that the news business — especially local news — has been in economic free fall for some time. Relatedly, the ranks of journalists who could be pushing out accurate and democracy-sustaining news have been decimated in recent years. There is also the role that technology platforms play in disseminating and amplifying polluted information.
These problems with our information ecology are systemic, complex, and daunting. We may not have the ability or the wherewithal to remedy them in the short term, but we certainly need to continue working toward that goal. The work — which includes reimagining journalism’s economics and overhauling online spaces to favor “high-fidelity” information — was underway before COVID-19 upended the world as we know it, and it needs to persist. Meanwhile, as the virus wreaks immeasurable destruction, we must ensure that it does not also irreparably harm press freedom.