Activists sue Fox News over coronavirus falsehoods. Here’s what the Constitution says

Fox News has done the American public a terrible disservice by minimizing the threat of the COVID-19 pandemic, but its speech is protected by the First Amendment and cannot be a basis for holding it liable.

Opinion and even false information are generally protected by freedom of speech. Already, one lawsuit has been filed against Fox News by the Washington League for Increased Transparency and Ethics. The suit – which names as defendants Rupert Murdoch, Fox News and major cable companies – claims “the 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.”

To be sure, some Fox News commentators were outrageous in their statements, and in minimizing the threat. Trish Regan, who has since left the network, called the coronavirus “yet another attempt to impeach...demonize, and destroy the president.” A graphic next to her said, “CORONAVIRUS IMPEACHMENT SCAM.”

Jeanine Pirro said “All the talk about coronavirus being so much more deadly [than the flu] doesn’t reflect reality.” Sean Hannity, too, likened coronavirus to the flu and said “Healthy people, generally, 99 percent recover very fast, even if they contract it.”

In mid-March, as sheltering in place orders were being imposed, Rep. Devin Nunes appeared on Fox News and urged Americans to “stop panicking” and for those who are healthy to “just go out.”

Such speech was demonstrably false and dangerous. People believe what they hear on the news. A Pew Research survey in early April found that 79 percent of Fox News consumers believed the media “slightly or greatly exaggerated the risk of the pandemic.” There is no way to know how many of these individuals were influenced by what they heard on Fox News and engaged in behavior that put them or others at risk.

I thus understand the impetus to want to sue Fox News and hold it liable for spreading misinformation. Public health should not be a political issue, and these commentators should be ashamed of their statements. But their speech is protected by the First Amendment.

Freedom of speech provides protection for the expression of opinion, no matter how misguided or controversial. Under the First Amendment, all views can be expressed, even ones that are misguided and dangerous.

There are instances where false statements of facts can be punished without violating the Constitution. For example, the law prohibits perjury, making false statements under oath. Also, false and deceptive advertising is not protected by the First Amendment.

The law allows liability for defamation – false statements about a person that are injurious to his or her reputation. But the United States Supreme Court has made it difficult for public officials and public figures to recover for defamation, explaining that “erroneous statement was inevitable in free debate” and First Amendment freedoms need “breathing space” to survive.

The court thus has said that generally false speech is constitutionally protected. In United States v. Alvarez in 2012, the Supreme Court declared unconstitutional a federal law that made it a federal crime for a person to falsely claim to have received military honors.

“Absent from [the law] 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,” wrote Justice Anthony Kennedy.

The law is thus clear that Fox News and its commentators cannot be held liable for their false and misleading statements minimizing the threat of the coronavirus. Under the First Amendment, the remedy for false speech is more speech. The First Amendment is based on the faith that ultimately the truth will emerge. It is a faith that may be hard to swallow here where many people may have been needlessly injured by the reckless speech of these Fox News commentators.

But the alternative seems much worse: allowing the courts to decide what opinions can be expressed and what can’t be said.

As much as I distrust the commentators who made the coronavirus a political issue, I would not want to give political leaders or judges the ability to decide what we can and can’t hear.

All we can hope is that those who have the microphone and the powerful platform of Fox News will be far more careful in the future. People’s lives depend on it.

This story was originally published April 23, 2020 at 6:00 AM with the headline "Activists sue Fox News over coronavirus falsehoods. Here’s what the Constitution says."