On Monday, Fox News filed a scathing response to the latest antics from WASHLITE, the far-left Washington state group looking to take down the network over what they (and their kooky, like-minded allies) have claimed was deadly and unserious coronavirus coverage.
NewsBusters obtained the six-page reply in support of motion to dismiss and it pulled no punches in shredding their “frivolous” claims and “bad facts” as “astounding,” “dangerous,” “distortion,” full of “hutzpah,” and “irrelevant.” Overall, the motion laid bare the First Amendment complaint as a horrid attack on free speech.
Of course, CNN has been nowhere to be found in calling out this nonsense. But #FactsFirst, right?
In the first three graphs, the reply tore to shreds WASHLITE’s fanatical claim that “cable programmers do not have First Amendment rights” by pointing out that the precedent they’re aiming for would leave “every other cable network” exposed to legal doom (click “expand,” emphasis added):
Plaintiffs’ opposition rests on the astounding claim that “cable programmers do not have First Amendment rights.” Opp.11. That is wrong. “Cable programmers and cable operators … are entitled to the protection of the speech and press provisions of the First Amendment.” Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994). “[T]he basic principles of freedom of speech and the press … do not vary when a new and different medium for communication appears.” Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790-91 (2011). Plaintiffs’ position would allow the government to censor not just Fox News but also CNN, CNBC, MSNBC, Bloomberg, ESPN, and every other cable network. That is as dangerous as it is frivolous.
Plaintiffs’ state-law arguments are equally baseless. They concede that the Consumer Protection Act would not apply if Fox had published the identical commentary in “traditional print media.” Opp.29. 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.
Undeterred by black-letter law, plaintiffs seek to mask bad facts by arguing that the Court cannot look at the actual transcripts of the speech they distort and attack. Plaintiffs’ argument does not lack chutzpah, but it also belies their account of the facts.
The third graph concluded with perhaps the thesis of this entire farce, slamming WASHLITE as unable to “hide that their assault on the First Amendment rests on a false portrayal of what Fox’s commentary actually said.”
“Fortunately, in all events, the Constitution protects Fox’s speech even accepting the Complaint’s distortions,” it added.
In a section entitled “The First Amendment Protects Defendants’ Speech as a Matter of Law,” Fox’s lawyers drilled down on WASHLITE’s claims over four points and, in each instance, blew it to smithereens.
On the truly pathetic argument that “cable programmers do not have First Amendment rights on the cable medium,” the reply noted that the Turner case above found: “Cable programmers and cable operators … are entitled to the protection of the speech and press provisions of the First Amendment.”
And when adding in the Brown case also referenced in the introduction, the Supreme Court has also said that the basic tenets of the First Amendment don’t suddenly change “when a new and different medium for communication appears.”
Point two provided perhaps the most amusing takedown, which dealt with WASHLITE’s “strawman” that this case was an example of how “constitution rights are not unlimited.”
Their evidence? Three cases that, as the reply noted, had “nothing to do with free speech.” The topics? The three cases dealt with liquor sales, “involuntary psychiatric confinement,” and “involuntary smallpox vaccinations” respectively.
Last we checked, none of those concerned the First Amendment and the freedom of the press.
Moving down to point two (“Plaintiffs Fail to State a Claim Under the CPA”), Fox outlined four more troublesome claims with their use of a law aimed at “deceptive commercial speech,” not journalism.
Of their four points, three and four were most amusing. Fox lawyers noted in point three that WASHLITE “concede[d] that Fox’s speech was not the ‘proximate cause’ of any business or property injury” even though the entire point of the suit was to allege that Fox downplayed the coronavirus, leading to deadly consequences.
And finally, point four brought up another obvious and important point WASHLITE failed to accomplish: “Plaintiffs concede that the Complaint fails to allege Fox’s speech ‘induced’ WASHLITE or its members to act.”
Yikes.
