Seattle attorney Catherine Clark on Thursday instructed a Washington state court on how to think about coronavirus. “There is no opinion on the existence, the actual existence, of covid-19,” Clark told King County Superior Court Judge Brian M. McDonald. That is a fact.

Then this: “An acceptable opinion," said Clark, "would be covid-19 exists and it’s threatening [to] some people but if you are not over 65 or immuno-suppressed or obese or suffer from diabetes, the threat to you is less and I think you should be a little less careful if you wish — that’s an opinion based on fact.” (29:07 on the video of the oral argument)

(Bolding added to emphasize that left-wing outrage over Fox News has progressed to the point that a lawyer in an oral argument is now on record as outlining what constitutes allowed opinion in the United States.)

Clark is spearheading a lawsuit against Fox News for its coronavirus coverage, alleging that various on-air statements playing down the scourge violated the state’s Consumer Protection Act. “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,” Clark wrote in a May 11 filing on behalf of her client, the nonprofit Washington League for Increased Transparency and Ethics (Washlite).

For the record, Fox News denies that it has so characterized coronavirus. Host Sean Hannity, for example, has used the "h" word in connection to coronavirus, though not in the way portrayed by WASHLITE, he claims: "I said it was a hoax for them [Democrats] to be using it as a bludgeon on Trump. And they are,” said Hannity. (See his comments side by side and judge for yourself.)

Parsings aside, Hannity heads up a crew of Fox News opinionators who minimized the coronavirus outbreak in late February and early March, a period when President Trump was coming under scrutiny for a slow-footed response to the virus’s spread. In an infamous Feb. 27 broadcast, for instance, Hannity opened with a derisive message for those who were ringing alarms. “We’re all doomed. The end is near," said Hannity. On March 8, Fox Newser Pete Hegseth said, “I feel like the more I learn about this, the less there is to worry about.” On March 7, host Jeanine Pirro said, “All the talk about coronavirus being so much more deadly doesn’t reflect reality. Without a vaccine, the flu would be far more deadly.”

The pooh-poohing commentary was indeed troublesome, especially as it beamed from Hannity’s 9 p.m. perch, when millions of loyal viewers pay an unsettling degree of attention to the host. We here at the Erik Wemple Blog have advocated his sacking.

As the unscientific, pro-Trump statements piled up on Fox News, critics of the network fantasized on social media about a courtroom reckoning. Somehow, the input of the Hannity-Pirro-Hegseth crowd would, they dreamed, trigger massive liability for Fox News. Joe Lockhart, who was press secretary in the Clinton White House, has been outspoken on the matter. “I do believe there will be a number of lawsuits because of the apparent coordination between the President and Fox [News] pushing fake science,” Lockhart told the Erik Wemple Blog via Twitter DM. “They both first denied it would happen and then repeatedly repeated false information to the public, information that cost lives.”

Now: The Washlite suit isn’t a class-action. Perhaps it’s not precisely what the Twitter legal eagles had in mind. But the arguments advanced by the plaintiffs demonstrate why it’s a bad idea to cheer for legal action against your reviled cable-news network.

Here are just four facts about the case that merit consideration:

* Washlite has requested that the court issue an order “enjoining Fox to cease and desist televising any misinformation regarding COVID-19.”

* Washlite has requested that the court direct Fox “to issue specific retractions of each and every false and/or misleading statement televised through its cable television stations relating to COVID-19.”

* Washlite argues that statements on Fox News soft-pedaling coronavirus contradicted pronouncements by the U.S. government.

So raw are these arguments that their stench carries from one Washington to the other Washington. The readership of the Erik Wemple Blog is sophisticated enough to spot the infirmities of any invitation to a court to serve as an editorial chaperone for a news network, or even a propaganda network. Do taxpayers in Washington state really want Judge McDonald to get into the intricacies of managing retractions?

As for this business about differing levels of First Amendment protection, let’s explore. Here’s how Clark articulates this idea:

In a very generalized brief, the Fox defendants (Fox) claim broad protection under the First Amendment claiming to be on equal footing with newspapers and broadcast television stations. In so doing, 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.

The idea here is that a programmer like Fox News or CNN loses First Amendment protections because its content is distributed through third-party cable operators.

Refutation of this point requires citation of decades of case law and regulation, something that Gabe Rottman at the Reporters Committee for Freedom of the Press has done quite well. The conclusion shouldn’t surprise anyone with a high school understanding of civics: Of course, cable news programmers enjoy the same First Amendment rights as newspapers. The miserable logic of the complaint, Rottman notes, would result in a free-expression bloodbath for just about all of American media:

Among other things, that logic would extend to newspapers who use third-party contractors to deliver the physical paper or rely on internet service providers to distribute digital content. It would extend to syndicated radio programs who sell content to third-party broadcasters. And it would apply to the broadcast networks. ABC, CBS, the CW, FOX, and NBC would only be protected when their programming is broadcast by owned-and-operated stations. PBS wouldn’t be protected at all because it doesn’t own its member stations.

NCTA (The Internet & Television Association) — which represents owners of the main broadcast news operations — and the Reporters Committee for Freedom of the Press last week submitted a friend-of-the-court brief supporting Fox News.

When McDonald asked Clark during oral argument whether Hannity’s comments would enjoy greater protection if they’d been published in the Wall Street Journal, Clark responded, “Is that an opinion column, your honor, or a fact-based column?” (Starting at 28:35 in oral argument.)

The judge said let’s call it an opinion column.

So Clark proceeded: “That would be different. Mr. Hannity regularly expresses his opinions every night, as do many other Fox personalities, and they’re certainly free to express their opinion,” she argued. “However, there is no opinion on the existence, the actual existence, of covid-19.” Then Clark launched into her thoughts about what constitutes an “acceptable” opinion, as quoted at the top of this post.

A couple of correctives here: Opinion columns are indeed based on facts; otherwise, they are works of fiction. And speaking for one opinion outfit — the Erik Wemple Blog, that is — we don’t want a Seattle lawyer and a Washington state judge taking out a piece of chalk and delineating the boundary between fact and falsehood, opinion and news.

In her arguments to McDonald, Clark emphasized that people’s lives are on the line right now. “When it comes to public health, the rules are different. And that you can’t lie about,” she said (37:20 in the oral argument). Also: “There has never been a right to lie. There has never been a right to make a patent false statement particularly on something like a pandemic,” she said (27:51 on the video of the oral argument).

In his comments to the judge, Michael Carvin, a lawyer arguing on behalf of the network, noted, “You cannot punish speech about matters of public concern regardless of whether the statements are factual in nature” (1:45 in video of oral argument). That said, Carvin wasn’t conceding that Fox News had published falsehoods; he merely argued that the court, in considering the network’s motion to dismiss, was obligated under the law to toss the case regardless of the integrity of the statements at issue. “Go ahead and accept all of their complete fictitious statements as true. As a matter of law, this case must be dismissed,” said Carvin, referring to representations in the plaintiff’s filings that characterize Fox News content. (Starting at 14:00 in oral argument.)

McDonald betrayed some skepticism about Clark’s contention that there has never been a right to lie, citing United States v. Alvarez. That case addressed the actions of Xavier Alvarez, who in 2007 introduced himself as a board member of the Three Valley Water District Board in California. In so doing, he lied that he had received the Congressional Medal of Honor, an assertion that violated the Stolen Valor Act. He was convicted under the act. In a 2012 opinion, Supreme Court Justice Anthony M. Kennedy struck down the Stolen Valor Act on First Amendment grounds, all but affirming a right to lie, at least in some circumstances (defamation and perjury, for example, don’t enjoy First Amendment protection).

“The remedy for speech that is false is speech that is true,” Kennedy wrote in his opinion, citing the doctrine of counterspeech. Alvarez himself got a stiff brushback from free expression, as Kennedy noted: “Once the lie was made public, he was ridiculed online.”

Well, so was Hannity! After he sought to mock concerns about coronavirus, he faced a social-media backlash and a “media mob” backlash. Within days, Hannity and others on Fox News started changing their tone. Suddenly, the coronavirus was serious business: Wash your hands!

The Post’s team at “The Fix” documented how, in the course of days, this turnaround in network attitude materialized:

Counterspeech isn’t a perfect remedy for the problem of Fox News, though it sure worked faster than a potential incursion from a Washington state court. Toss this case, Judge, and leave Hannity for the Erik Wemple Blog.

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