March saw a surge in people on social media wishing that lawsuits would resolve the problem of Fox News. A fairly representative example:

The cry for a court remedy was understandable, given how the network in late February and early March portrayed the rising threat of the coronavirus. On his Feb. 27 program, host Sean Hannity famously parodied concerns about the scourge: “Tonight, I can report the sky is absolutely falling. We’re all doomed. The end is near. The apocalypse is imminent, and you’re going to all die, all of you in the next 48 hours and it’s all President Trump’s fault,” he said. “Or at least that’s what the media mob and the Democratic extreme radical socialist party would like you to think."

Now-former Fox Business host Trish Regan delivered a similar message more than a week later. She and the network later “parted ways."

In a March 29 appearance on MSNBC’s “AMJoy,” Vanity Fair reporter Gabriel Sherman made reference to the idea that Fox News faced liability for its reporting. “There’s a real concern inside the network that their early downplaying of the coronavirus actually exposes Fox News to potential legal action by viewers who maybe were misled and actually have died from this,” said Sherman, who added that Regan’s absence from the airwaves was “reflective of this concern."

Cue even more chatter about lawsuits.

In a March 30 Twitter thread, Media Matters President Angelo Carusone addressed the network’s revenue and added this point:

The problem with all the legal theorizing was quite predictable: How does one seek damages from Fox News for egregious coronavirus coverage? On April 2, an answer of sorts emerged from King County, Wash. Attorney Elizabeth Hallock drew up a complaint for the Washington League for Increased Transparency and Ethics (WashLITE), a Washington state nonprofit. The document alleged that Fox News had violated the Washington state Consumer Protection Act, which “declares unlawful and prohibits deceptive acts or practices in the conduct of any trade or commerce,” according to the suit.

As for specific violative actions, the suit included this swipe at Fox News: “In February and March of 2020, at various times that will be shown, including the March 9, 2020 broadcasts of Sean Hannity and Trish Reagan, Defendants 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.” Bolding added to highlight the unfortunate misspelling of Trish Regan’s last name.

The Fox News personality's coverage has been so irresponsible that he should be off the air, says Post media critic Erik Wemple. (Erik Wemple/The Washington Post)

Bogus information dealt by Fox News, argues the suit, delayed and interfered with the “implementation of effective mitigation and countermeasures against the virus.” As for damage caused by the network’s behavior, the document states, “The actions of the Defendants have damaged the membership of WASHLITE, in their business, property, and health. One member of WASHLITE has contracted the virus.”

To counter the foregoing, Fox News deployed elite law firm Jones Day, though it could have tapped anyone who’d attended a few law school classes. In a motion to dismiss filed on Tuesday, the network argued, among other things, that Fox News’s commentary about the coronavirus pertained to a matter of extensive public concern, an area where the First Amendment affords wide-ranging protections; that even if some statements were proved false, they are still protected speech; that other outlets published commentary that also appeared to minimize the coronavirus threat: “If this type of allegedly ‘false’ speech can be censored, then free and open debate on matters of public concern is a dead letter,” notes the complaint.

Another argument omitted from the complaint — one that Fox News lawyers were clearly too embarrassed to make — relates to the similarity between the allegedly actionable speech of Regan/Hannity and the line coming from the White House. On her March 9 program, for instance, Regan bashed “Democrats” for their alleged attempted to blame Trump “and only him for a virus that originated halfway around the world.” It was another impeachment attempt, she alleged.

Compare those thoughts to what then-acting White House Chief of Staff Mick Mulvaney told the Conservative Political Action Conference in late February: “While real news was happening, and we were dealing with it in a way that I think you folks would be extraordinarily proud of and that was serving the nation extraordinarily well, the press was covering their hoax of the day because they thought it would bring down the president,” said Mulvaney, referring to the impeachment trial in the Senate. “The reason you’re seeing so much attention to it today is that they think this going to be what brings down the president.” Another impeachment effort, in other words.

Now: Feel free to bash Fox News/Fox Business for regurgitating the line from the White House, and you should; feel free to identify this activity as propaganda and not journalism, and it is; feel free to call for Fox News to take action on this front, and we have. Yet the notion that somehow echoing a talking point coming from the White House doesn’t deserve the full protection of the First Amendment — well, that’s problematic.

On Tuesday, Hallock, the attorney for the plaintiff, withdrew from the litigation. Reached by phone on Wednesday morning, Hallock told the Erik Wemple Blog that she was very busy running her marijuana store and running a recall effort against a Yakima city council member who has urged people to take off their face masks and return to normal life. When asked about the First Amendment freedoms of Fox News hosts to essentially agree with the White House, Hallock argued that “there are just limits to free speech during a pandemic. The Constitution is not a suicide pact.” Referring to the people who pooh-pooh the coronavirus based on bogus information, Hallock says, “I’m living that.”

Bolding inserted to highlight a scary thought, one reminiscent of the free-expression-suppression frenzy of World War I. The 1917 Espionage Act, as amended, triggered a spree of prosecutions against people who, by modern standards, were performing their civic duty. But many argued there just had to be limits on free speech during wartime. “It became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional, though the Supreme Court had not yet held it valid, to say that the sinking of merchant ships was legal, to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christ,” noted Zechariah Chafee in a 1941 history of free speech. “Men have been punished for criticizing the Red Cross and the Y.M.C.A., while under the Minnesota Espionage Act it has been held a crime to discourage women from knitting by the remark, ‘No soldier ever sees those socks.’ ”

The backlash to the overkill of World War I Espionage Act prosecutions has given Americans the broad-ranging First Amendment protections that many have come to take for granted. They’re every bit as important in times of crisis as in times of prosperity.

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