NCTA — The Internet & Television Association and Reporters Committee for Freedom of the Press are backing Fox News in its efforts to dismiss a lawsuit filed by a public interest group over the way that the network covered the coronavirus crisis.
“While all cable programming enjoys First Amendment protection, the constitutional prohibition against unwarranted governmental interference with programming on news networks is especially clear,” the organizations wrote in a proposed amicus brief. The NCTA includes parent companies of some of Fox News’ rivals, including CNN and MSNBC, while the Reporters Committee includes print and broadcast representatives on its steering committee.
A state of Washington judge will consider Fox News’ motion to dismiss the case in a hearing on Thursday.
As Fox News faced scrutiny over the way that some of its hosts treated the coronavirus, the Washington League for Increased Transparency and Ethics sued the network in early April, claiming that its coverage violated the state’s consumer protection laws by engaging in a “campaign of deception and omission regarding the danger of the international proliferation of the novel coronavirus.” Also named in the lawsuit were parent Fox Corp. and two channel distributors, AT&T and Comcast, as well as Rupert Murdoch.
The lawsuit specifically cited statements made by Fox News personality Sean Hannity and then-Fox Business host Trish Regan on March 9, arguing that they acted in “bad faith to willfully and maliciously disseminate false information denying and minimizing the danger posed by the coronavirus.”
On that date, Hannity, in an interview with Rep. Doug Collins (R-GA), noted that “I don’t like how we are scaring people unnecessarily, and that is unless you have an immune system that is compromised, and you are older, and have other underlying health issues, you are not going to die 99 percent from this virus, correct?”
“That’s correct, Sean,” Collins replied.
“They are scaring the living hell out of people — I see it, again, as like, let’s bludgeon Trump with this new hoax,” Hannity then said.
Regan did a segment that evening titled “coronavirus impeachment scam.” She parted ways with the network later that month.
In a motion to dismiss, Fox News said that their statements were First Amendment protected speech. They also included an appendix outlining instances where Fox News hosts warned of the severity of the crisis.
But last week, WASHLITE filed a response in which it said that “Fox cites no authority supporting the proposition that a cable television programmer, operating on a private cable television system owned and operated by another entity, has such protections. Rather, it seeks protection within the case law relating to print media such as the Seattle Times or the New York Times or the Washington Post or other newspaper.” The group also noted that cable television “has long been subject to consumer protection statutes,” citing the 1992 Cable Act and the state of Washington law.
“Fox’s repeated claims that the COVID-19 pandemic was/is a hoax is not only an unfair act, it is deceptive and therefore actionable under Washington’s Consumer Protection Act,” they wrote.
Fox News responded to WASHLITE on Monday, writing that the group concedes “that the Consumer Protection Act would not apply if Fox had published the identical commentary in “traditional print media.” But their imagined distinction has no basis in law or logic. The CPA regulates deceptive commercial speech. It does not cover news reporting or political commentary.”
“They cannot hide that their assault on the First Amendment rests on a false portrayal of what Fox’s commentary actually said,” they wrote. “Fortunately, in all events, the Constitution protects Fox’s speech even accepting the Complaint’s distortions.”
NCTA and the Reporters Committee, in their proposed amicus brief, wrote that the First Amendment protections for news media do “not depend on the manner in which such speech is distributed; it is grounded in the nature of the speech itself. News media thus enjoy First Amendment protection whether they distribute their content in a newspaper, via broadcast radio or television, or over a cable system.”
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