(CN) – A transparency watchdog’s lawsuit against Fox News over its handling of the Covid-19 pandemic – including repeatedly calling it a hoax during broadcasts – is as novel as the coronavirus but likely won’t get far, according to legal experts.
The Washington League for Transparency and Ethics sued Fox News on Thursday, saying the network’s consistent downplaying of the pandemic in the early stages of the outbreak in the United States encouraged people to behave in ways contrary to what was required to stem the spread.
“Defendants knowingly disseminated false, erroneous, and incomplete information, which was reasonably relied upon by the public and which had the effect of delaying and interfering with the implementation of effective mitigation and countermeasures against the virus,” the League said in the complaint.
“Defendants’ actions created an ongoing uncertainty amongst some members of the public as to the dangers of the virus and the rapidity with which the virus spreads.”
WASHLITE said one of its members eventually contracted the coronavirus during epidemiological conditions the plaintiffs allege were created, in part, by the malfeasance of the network.
“The defendants have created an epidemiological hazard,” WASHLITE said in the complaint. “A subset of the population has and will continue to ignore or resist reasonable and necessary efforts to control and mitigate the virus and prevent mass death.”
Fox News dismissed the lawsuit as frivolous.
“Wrong on the facts, frivolous on the law,” said Lily Fu Claffee, general counsel for Fox News Media. “We will defend vigorously and seek sanctions as appropriate.”
Thursday’s lawsuit in Washington state is the first known one of its kind filed against the conservative media organization, although it may not be the last.
Nor does the suit have a good chance of prevailing on the merits, according to one expert. Margaret Russell, a law professor at Santa Clara University who specializes in media law, said it will be tough to get a judge to sign off on the suit’s central legal theory.
“It will not go far,” she said of the case.
The lawsuit invokes the Consumer Protection Act in its complaint, but the law is a tough fit for their claims because it’s not as though Fox News pundits are selling their speech directly or they are offering something for sale that is materially different than what they present it as.
“It will be difficult to apply the CPA to a network that has a different set of hosts with nuanced differences in their opinions,” Russell said. “Plus their product is speech and they are not selling it in a traditional sense. They’re just offering opinions.”
The lawsuit also claims Fox News intentionally inflicted emotional distress by downplaying the virulence of Covid-19.
“If the standards of intentional infliction of emotional distress were applied to news organizations and public figures, there would be no end to lawsuits,” Russell said.
Another problem is that news consumers have various avenues through which to collect their news.
“Certainly you could make an argument that there is a compelling public health problem at issue, but the classic First Amendment approach says you should combat false speech with true speech, or bad speech with good speech,” Russell said.
Nevertheless, the professor could envision future suits, perhaps were plaintiffs relied on information provided by the network and went about their daily lives only to contract the disease to the detriment of their health.
Even those claims would run up against the First Amendment principles of freedom of the press.
“On the one hand you have a compelling interest in public health, but on the other hand you have an equally compelling interest in freedom of the press,” Russell said.
Fox News has long endured criticism for its coverage of the coronavirus during the early stages of the outbreak, with Sean Hannity calling the disease a hoax, Trish Reagan, another host, claiming the outbreak was a fiction invented by Democrats to attack the president and a litany of hosts downplaying the deadly and contagious disease by comparing it favorably with the common cold or the seasonal flu.
However, Tucker Carlson, a prominent Fox News personality with a primetime slot at the network, has remained a notable exception, rigorously covering the disease’s spread while calling for an urgent response from state and federal officials. The network also sidelined Reagan after she called the virus a pretext for Democrats to re-impeach Trump.
However, Fox News itself is worried about exposure to legal liability, according to Gabriel Sherman, a Vanity Fair reporter who frequently uses contacts inside Fox News to expose the inner workings of the conservative media network.
“When I’ve been talking to Fox insiders over the last few days, 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,” Sherman said in an interview published on Sunday.
The network has altered the tone of its coverage in recent weeks, treating the pandemic as a serious threat and an evolving news story.
Fox News was also not the only news organization to initially underplay the seriousness of the threats posed by the coronavirus. The Washington Post, Vox and others ran several stories at the beginning of the global outbreak that compared Covid-19 to the seasonal flu. But those stories were written in January, well before the disease spread to the United States and wrought havoc to devastating effect in Italy, Spain and other parts of Europe.
Reporting by the New York Times indicates that for two weeks in late February and early March, when the pandemic began to take off in the United States, Fox News was more focused on providing cover for Donald Trump’s posture on the issue than the dissemination of the facts.
Fox News personalities like Hannity, Lou Dobbs, and Jesse Waters were downplaying the disease, even as executives introduced disinfectant cleaning into their office and placed hand sanitizer conspicuously around the building, according to the story.
Criticism of the network has not been restricted to the lawsuit.
On Thursday, 74 journalism professors who signed an open letter to Fox News on Thursday saying its coverage was “a danger to public health.”
“Urgently, therefore, in the name of both good journalism and public health, we call upon you to help protect the lives of all Americans — including your elderly viewers — by ensuring that the information you deliver is based on scientific facts,” the letter said.