Licensing / Media Regulation, Political Expression
Miguel Ángel Millar Silva and others (Estrella del Mar de Melinka Radio) v. Chile
Closed Mixed Outcome
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The King County Superior Court of Washington State dismissed a claim brought by the Washington League for Increased Transparency & Ethics (WASHLITE), and John and Jane Does against Fox News. The complaint alleged that Fox News was disseminating false, misleading, and incomplete information regarding Covid-19, which had the effect of deceiving the general public, and thereby violated the Consumer Protection Act (CPA). The CPA prohibits deceptive acts or practices in the conduct of any trade or commerce. However, the Court held that the present issue did not fall within the ambit of CPA as a news article was not published “in the conduct of any trade or commerce.” Further, the Court said that the speech in this case involved matters of public concern which was at the heart of the First Amendment’s protection. Acknowledging that the motives in the present case for seeking to curtail or prohibit speech were understandable and could be considered righteous, the Superior Court relied on Supreme Court precedent which affirmed that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” Texas v. Johnson, 491 U.S. 397, 414 (1989).
On April 15, 2020, Washington League for Increased Transparency & Ethics (WASHLITE), a Washington non-profit corporation, and John and Jane Does 1 through 1,000 (representatives of consumers of cable television services) filed complaint against Fox Corporation, Fox News Network, Fox Business Network, and Jane and Jane Moes 1 through 100 (other alleged companies owned by Fox).
The plaintiffs alleged that in February and March 2020, hosts and guests on the defendants’ programs “falsely described the coronavirus as a “hoax” and falsely minimized the threat of COVID-19”. They further alleged that this de-emphasis and deceptive representation by the defendants, contributed to the public health crisis as consumers of the news channels failed to take appropriate action to protect themselves. They contended that by publishing deceptive news, the defendants violated Consumer Protection Act, RCW 19.86 (“CPA”) which provides that unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
Therefore, the plaintiffs sought an order prohibiting the defendants from publishing any misinformation regarding COVID-19, and further directing them to issue specific retractions of every false and/or misleading statement. The defendants filed a motion for dismissal.
Judge Brian McDonald of the King County Superior Court delivered the decision as the sole presiding judge. The central issue was whether the false news published by the defendants was violative of the provisions of CPA.
Firstly, the defendants asserted protection under the First Amendment since “commentary on the coronavirus” constitutes “core political speech on a matter of public concern”. Citing the cases of Snyder v. Phelps and Connick v. Myers, the defendants argued that speech on “public issues” occupies the “highest rung of the hierarchy of First Amendment values,” and is entitled to special protection [p. 8]. At this point, the plaintiffs claimed that defendants, as cable programmers, do not have the same First Amendment rights accorded to newspapers and broadcast television stations [p. 9]. However, the judge held that cable programmers and cable operators are entitled to the protection of the speech and press provisions of the First Amendment and reiterated the Supreme Court judgment in Turner Broad Inc. v. F.C.C [ 512 U.S. 622, 636 (1994)].
Secondly, the plaintiffs argued that the First Amendment does not apply to the present case since “there is no First Amendment right to lie” [p. 12]. However, by citing United States v. Alvarez [567 U.S. 709 (2012)], the Court held that “the law on this issue is more nuanced” than suggested by the plaintiffs. In Alvarez, the Supreme Court struck down the Stolen Valor Act, which criminalized false claims of being a recipient of the Congressional Medal of Honor. The judges emphasized that the falsity alone should not be enough to bring the speech outside the First Amendment and there should be additional elements of knowledge and recklessness [p. 13]. The judges quoted Justice Kennedy: “Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee” [p. 13].
Furthermore, judges were of the opinion that although motives for prohibiting speech could be “understandable and righteous” yet, as Supreme Court has recognized, “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” [Texas v. Johnson, 491 U.S. 397, 414 (1989)] [p. 16].
Thirdly, the Court decided whether the present issue could come within the ambit of the Consumer Protection Act. The judges stated that previous attempts to punish speech under the CPA, had been rejected by the courts [p. 15]. The judges discussed the case of Fid. Mort. Corp. v. Seattle Times Co. [131 Wn. App. 462, 128 P.3d 621 (2005)], where the Court of Appeals had upheld the trial court’s dismissal of a CPA claim against the Seattle Times based upon an allegedly false and deceptive mortgage rate chart published in the newspaper. In doing so, the court held “the quarterly rate chart is not paid advertising. It is a news article, and as such it is not published ‘in the conduct of any trade or commerce.’ It does not fall within those activities governed by RCW 19.86.020” [p. 15]. Relying on the same, the judges held that a CPA claim against a cable news channel, ran afoul of the protections of the First Amendment and publication of news by the media channel did not fall within the ambit of ‘in the conduct of any trade or commerce’ [p. 16]
While the judges lauded the efforts of the plaintiffs in dissemination of accurate information regarding COVID-19, they concluded that the CPA claim against the news channels was barred under the First Amendment and therefore granted the motion to dismiss [p. 17].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by affirming First Amendment jurisprudence that allows speech which maybe false or that the public might find offensive or disagreeable. However the Court acknowledged the problem of spreading false information and stated that WASHLITE’s intention to stop this was laudable but not possible by means of a claim under the CPA.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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