1 HONORABLE BRIAN MCDONALD Department 48 2 Noted for Consideration: May 21, 2020 Oral Argument Date to Be Scheduled 3 4 5 6 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 8 WASHINGTON LEAGUE FOR INCREASED 9 TRANSPARENCY AND ETHICS, a NO. 20-2-07428-4 SEA Washington non-profit corporation; JOHN 10 DOE and JANE DOE 1-1,000, 11 FOX DEFENDANTS’ MOTION TO DISMISS Plaintiffs, FIRST AMENDED COMPLAINT 12 v. 13 FOX CORPORATION, a Delaware 14 corporation; FOX NEWS NETWORK, LLC, a Delaware corporation d/b/a FOX NEWS 15 CHANNEL; FOX BUSINESS NETWORK, a for profit company d/b/a FOX BUSINESS; 16 JOHN MOE and JANE MOE, 1-100 17 Defendants.1 18 19 20 21 22 23 24 25 1 This motion uses the caption from the Amended Complaint, as the Fox Defendants will not oppose the pending Motion to Amend the Case Caption. FOX DEFENDANTS’ MOTION TO DISMISS LAW OFFICES HARRIGAN LEYH FARMER & THOMSEN LLP FIRST AMENDED COMPLAINT - 1 999 THIRD AVENUE, SUITE 4400 SEATTLE, WASHINGTON 98104 TEL (206) 623-1700 FAX (206) 623-8717 1 INTRODUCTION & RELIEF REQUESTED 2 Plaintiffs launch a frontal assault on the First Amendment by seeking a gag order and a 3 retraction by judicial fiat against Fox News for airing allegedly “deceptive” commentary about the 4 Coronavirus outbreak. Anointing themselves as both the Committee on Public Safety and the 5 Ministry of Truth, they seek to punish Fox for speech that they deem “false” and dangerous because 6 it does not conform to the official viewpoint of the government and their own proclaimed 7 omniscience and certitude. Plaintiffs request a prior restraint prohibiting Fox from airing future 8 speech that contradicts the government’s proclamations. Worse, they request an order forcing Fox 9 to recant past commentary and affirmatively endorse the government’s viewpoint. They also seek 10 “treble damages” based on vague and unspecified harms that they claim to have suffered as a result 11 of Fox’s commentary. By this lawsuit, Plaintiffs seek to restrain, control, and penalize what 12 commentators and opinion hosts may say about the most pressing public controversy of our time. 13 Fortunately, neither the First Amendment nor Washington state law allows such brazen interference 14 with the freedom of the press. The case must be dismissed as a matter of law. 15 STATEMENT OF FACTS 16 In recent months, the country has been gripped by an intense public debate about the 17 Coronavirus outbreak. The debate has encompassed many pressing questions of political and 18 scientific controversy: How serious of a threat does the virus pose? Which, if any, public officials 19 should be blamed for its rapid spread? And what measures should be taken in response? 20 Plaintiffs dive headfirst into this national debate by filing suit against Fox Corporation, Fox 21 News Network LLC, and “Fox Business Network” (collectively, Fox) for political commentary 22 regarding the Coronavirus.2 In particular, they allege that commentary aired by Fox unlawfully 23 “contradicted the formal position of the Trump Administration, Governor Inslee, [and] the urgent 24 messages of public health experts” about the Coronavirus, thereby “sowing significant public 25 2 “Fox Business Network” is not a proper defendant. It is not a legal entity, but a channel operated by Fox News Network. FOX DEFENDANTS’ MOTION TO DISMISS LAW OFFICES HARRIGAN LEYH FARMER & THOMSEN LLP FIRST AMENDED COMPLAINT - 2 999 THIRD AVENUE, SUITE 4400 SEATTLE, WASHINGTON 98104 TEL (206) 623-1700 FAX (206) 623-8717 1 confusion regarding the threat of the disease.” Amended Complaint, Dkt. No. 25 § VI(5.4). 2 Plaintiffs cherry-pick 18 different statements about the Coronavirus that aired on Fox News 3 and the Fox Business Network between February 27 and April 13. Am. Compl. ¶¶ 4.43-77. After 4 selectively quoting the statements and plucking them out of context, Plaintiffs characterize the 5 statements as falsely “contradict[ing]” the views of “the Trump Administration[]” and “Governor 6 Inslee” by “minimiz[ing] the lethality of COVID-19.” E.g., Am. Compl. ¶¶ 4.43, 4.48.4. Based on 7 that mischaracterization, the Complaint claims that Fox’s commentary violated the Washington 8 Consumer Protection Act (CPA), which prohibits “[u]nfair methods of competition and unfair or 9 deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. 10 In an attempt to state a claim under the CPA, Plaintiffs allege that Fox’s commentary 11 “persuaded consumers and persons . to fail to properly prepare to stop the spread of COVID-19,” 12 and “to ignore Governor Inslee’s directives . and the warnings of the Trump Administration.” Am. 13 Compl. § V(5.6). According to the Complaint, the failure to heed the government’s warnings then 14 caused “longer closures of businesses, schools and other enterprises” in order to “combat the spread 15 of the virus.” Id. This in turn caused unspecified persons to suffer damages in the form of “time 16 taken from work or business, inability to conduct business, loss of jobs, business or occupation [and] 17 additional costs from not having prepared sooner (including paying higher prices for masks, paper 18 products, hand sanitizer, etc. which could have been ordered or purchased earlier).” Id. 19 In their prayer for relief, Plaintiffs seek an extraordinary prior restraint ordering Fox “to cease 20 and desist televising any misinformation regarding COVID-19” in the future. Am. Compl. § VI(1). 21 They also seek an injunction affirmatively “directing Fox to issue specific retractions of each and 22 every false and/or misleading statement televised through its cable television stations relating to 23 COVID-19.” Id. § VI(2). In addition, Plaintiffs seek both “damages” and “treble damages” for a 24 vague litany of harms supposedly caused by Fox’s commentary. Id. § VI(3)-(4).3 25 3 Plaintiffs filed their original claim on April 2 asserting claims under the CPA and the tort of “outrage.” See FOX DEFENDANTS’ MOTION TO DISMISS LAW OFFICES HARRIGAN LEYH FARMER & THOMSEN LLP FIRST AMENDED COMPLAINT - 3 999 THIRD AVENUE, SUITE 4400 SEATTLE, WASHINGTON 98104 TEL (206) 623-1700 FAX (206) 623-8717 1 STATEMENT OF ISSUES 2 1. Whether the First Amendment protects Fox’s right to publish commentary that contradicts the government’s official viewpoint regarding the Coronavirus. 3 2. Whether Fox’s commentary on the Coronavirus falls under the CPA’s prohibition 4 against “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” RCW 19.86.020. 5 EVIDENCE RELIED UPON 6 This motion relies on Plaintiffs’ First Amended Complaint (Complaint). In addition, the 7 motion references transcripts of the telecasts referred to in the Complaint and contemporaneous 8 media reports. The transcripts are available on LexisNexis and reprinted in the Appendix. While not 9 essential to this motion, the transcripts are judicially noticeable because the Complaint refers to the 10 contents of them, Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 726, 189 P.3d 168 (2008), and 11 the media reports because they are “not subject to reasonable dispute” and are “capable of accurate 12 and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” ER 13 201(b). 14 ARGUMENT 15 Fox’s commentary on the Coronavirus is core political speech on a matter of public 16 concern—how dangerous the Coronavirus is, and how society and the government should respond 17 to it. Under both the First Amendment and state law, the value of this type of speech must be resolved 18 through free and open debate in the marketplace of ideas—not through litigation seeking to impose 19 legal penalties on statements alleged to be “false” or contrary to official government 20 pronouncements. Even more clearly, a court cannot order a “prior restraint” on this type of speech, 21 much less order a media outlet to affirmatively endorse the government’s viewpoint on this type of 22 23 24 25 Dkt. 1. The case was first assigned to Judge Schubert, but on April 8 WASHLITE struck Judge Schubert and the case was reassigned. After Fox filed a motion to dismiss the original complaint, Plaintiffs filed their Amended Complaint on April 15, dropping the “outrage” claim but keeping the CPA claim. FOX DEFENDANTS’ MOTION TO DISMISS LAW OFFICES HARRIGAN LEYH FARMER & THOMSEN LLP FIRST AMENDED COMPLAINT - 4 999 THIRD AVENUE, SUITE 4400 SEATTLE, WASHINGTON 98104 TEL (206) 623-1700 FAX (206) 623-8717 1 public controversy. Accordingly, the Complaint should be dismissed because it violates the First 2 Amendment and fails to state a claim under Washington state law. 3 This suit should be dismissed immediately, because “[s]erious problems regarding the 4 exercise of free speech and free press guaranteed by the First Amendment are raised if unwarranted 5 lawsuits are allowed to proceed to trial.” Tait v. KING Broad. Co., 1 Wn. App. 250, 255, 460 P.2d 6 307 (1969). Indeed, “[t]he chilling effect of the pendency of such litigation can itself be sufficient to 7 curtail the exercise of these freedoms.” Id. It is “essential” that this type of frivolous suit be dismissed 8 as early as possible because “the stake here, if harassment succeeds, is free debate.” Rye v. Seattle 9 Times Co., 37 Wn. App. 45, 53, 678 P.2d 1282 (1984). “Unless persons, including newspapers, 10 desiring to exercise their First Amendment rights are assured freedom from the harassment of 11 lawsuits, they will tend to become self-censors.” Id. (quoting Washington Post Co.