1 FILED

2020 MAY 27 09:51 AM

2 KING COUNTY
SUPERIOR COURT CLERK
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E-FILED
4 CASE #: 20-2-07428-4 SEA

6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING
7
WASHINGTON LEAGUE FOR INCREASED
8 TRANSPARENCY AND ETHICS, a NO. 20-2-07428-4 SEA
Washington non-profit corporation; JOHN
9 DOE and JANE DOE 1-1,000,
ORDER GRANTING MOTION TO DISMISS
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Plaintiffs,
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v.
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FOX CORPORATION, a Delaware
13 corporation; FOX NEWS NETWORK, LLC, a
Delaware corporation d/b/a FOX NEWS
14 CHANNEL; FOX BUSINESS NETWORK, a
for profit company d/b/a FOX BUSINESS;
15 JOHN MOE and JANE MOE, 1-100

16 Defendants.

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THIS MATTER came before the Court on the Fox Defendants’ Motion to Dismiss. The
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Court, having considered the following pleadings and records in this matter, including:
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20 1. Fox Defendants’ Motion to Dismiss First Amended Complaint;

21 2. WASHLITE’s Response to Motion to Dismiss;

22 3. Fox Defendants’ Reply in Support of Motion to Dismiss;

23 4. Amici Curiae Brief of NCTA – The Internet & Television Association and the

24 Reporters Committee for Freedom of the Press, and

25 5. WASHLITE’s Response to Amici Curiae Brief,

ORDER GRANTING MOTION TO DISMISS- 1

 1 and deeming itself fully advised, now makes the following findings and conclusions:

3 1. Plaintiffs are the Washington League for Increased Transparency & Ethics, a

4 Washington non-profit corporation and John and Jane Does 1 through 1,000 (representatives of

5 consumers of cable television services). Plaintiffs are hereinafter referred to as WASHLITE.

6 2. Defendants are Fox Corporation, Fox News Network, Fox Business Network and

7 Jane and Jane Moes 1 through 100 (other alleged companies owned by Fox). Defendants are

8 hereinafter referred to as “Fox.” Fox is an international media corporation which, among other

9 things, provides programming for the Fox News Channel and the Fox Business Channel.

10 3. On April 15, 2020, WASHLITE filed a first amended complaint alleging that Fox

11 violated the Consumer Protection Act (“CPA”), RCW 19.86.090. The complaint alleges Fox

12 programs “purport to present news stories of the day interspersed with the opinion of the televis io n

13 host(s) and/or guests appearing on the program.” First Amended Complaint at 8. The complaint

14 alleges that in February and March 2020, hosts and guests on Fox’s programs falsely described the

15 coronavirus as a “hoax” and falsely minimized the threat of the coronavirus and COVID-19.

16 According to WASHLITE, “[t]hese representations were deceptive because they caused consumers

17 to fail to take appropriate action to protect themselves and others from the disease, mitigate its

18 spread, and contributed to a public health crisis and a subsequent state wide shut down causing

19 damage to businesses and the loss of employment by persons located in Washington State.” Id. at

20 29.

21 4. By way of relief, WASHLITE seek an order enjoining Fox from televising any

22 misinformation regarding COVID-19, an order directing Fox to issue specific retractions of every

23 false and/or misleading statement, and treble damages.

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ORDER GRANTING MOTION TO DISMISS- 2

 1 5. On April 23, 2020, Fox filed a motion to dismiss, citing the First Amendment. The

2 applicable court rule was not cited in the opening brief, and Fox subsequently clarified that the

3 motion is brought under CR 12(b)(6).

4 6. In its motion to dismiss, Fox disputes the accuracy of the statements allegedly made

5 by Fox hosts and guests and has provided transcripts from some of the programs discussed in the

6 first amended complaint. However, under CR 12(b)(6), a plaintiff's factual allegations are presumed

7 true, and the court may grant dismissal only if it appears beyond doubt that the plaintiff can prove

8 no set of facts, consistent with the complaint, which would entitle the plaintiff to relief. For purposes

9 of this motion, this Court presumes the allegations in the first amended complaint are true, and the

10 Court has not considered the documents attached as appendices to Fox’s motion.

11 7. On May 18, 2020, Amici Curiae NCTA – The Internet & Television Association and

12 the Reporters Committee for Freedom of the Press filed an amici curiae brief in which they joined

13 Fox’s motion to dismiss.

14 8. Fox argues that its commentary on the coronavirus is protected under the First

15 Amendment because it constitutes core political speech on a matter of public concern. The United

16 States Supreme Court has recognized that speech on matters of public concern is at the heart of the

17 First Amendment's protection. Snyder v. Phelps, 562 U.S. 443, 451–52 (2011). Speech deals with

18 matters of public concern when it can “be fairly considered as relating to any matter of politica l,

19 social, or other concern to the community.” Id. Speech on public issues occupies the “highest rung

20 of the hierarchy of First Amendment values,” and is entitled to special protection. Connick v. Myers,

21 461 U.S. 138, 145 (1983).

22 9. WASHLITE does not dispute that the speech at issue in this case involves a matter

23 of great public importance. Instead, it argues that Fox, as a cable programmer, does not have the

24 same First Amendment rights accorded to newspapers and broadcast television stations. According

25 to WASHLITE, “cable programmers do not have First Amendment rights on the cable medium”

ORDER GRANTING MOTION TO DISMISS- 3

 1 and, therefore, Fox “does not have First Amendment protections on the cable medium. ”

2 WASHLITE Response at 11 and 18.

3 10. These assertions do not hold up to scrutiny. Over 25 years ago, the United States

4 Supreme Court held, “There can be no disagreement on an initial premise: Cable programmers and

5 cable operators engage in and transmit speech, and they are entitled to the protection of the speech

6 and press provisions of the First Amendment.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622,

7 636 (1994). The Court observed that, “[t]hrough ‘original programming or by exercising editoria l

8 discretion over which stations or programs to include in its repertoire,’ cable programmers and

9 operators ‘see[k] to communicate messages on a wide variety of topics and in a wide variety of

10 formats.’” Id.

11 11. The case primarily relied upon by WASHLITE, Denver Area Educ. Telcoms.

12 Consortium v. FCC, 518 U.S. 727, 812-826 (1996), does not stand for the notion that providers of

13 cable news programs lack First Amendment rights. The Denver decision held that a statute

14 authorizing cable operators to refuse to carry indecent programming on leased access channels did

15 not violate the First Amendment. 518 U.S. at 737-53 (plurality opinion); id. at 819-31 (Thomas, J,

16 concurring in the judgment in part and dissenting in part). In the opinion, the Court continued to

17 acknowledge the existence of “the First Amendment interests of cable operators and other

18 programmers.” Id. at 743. WASHLITE’s attempt to distinguish cable programmers from other

19 media providers is not supported by the relevant caselaw.

20 12. In its briefing, WASHLITE also argues the First Amendment does not apply because

21 “there is no First Amendment right to lie.” Response to Amici Curiae Brief at 5. The law on this

22 issue is more nuanced than suggested by WASHLITE.

23 13. In United States v. Alvarez, 567 U.S. 709 (2012), the United States Supreme Court

24 held that the Stolen Valor Act, which made it a crime to falsely claim to be a Congressional Medal

25 of Honor recipient, was unconstitutional under the First Amendment. In his plurality opinion, Justice

ORDER GRANTING MOTION TO DISMISS- 4

 1 Kennedy explained, “Absent from those few categories where the law allows content-based

2 regulation of speech is any general exception to the First Amendment for false statements. This

3 comports with the common understanding that some false statements are inevitable if there is to be

4 an open and vigorous expression of views in public and private conversation, expression the First

5 Amendment seeks to guarantee.” Id. at 718.

6 14. In Alvarez, Justice Kennedy in his plurality opinion and Justice Breyer in his

7 concurrence set forth examples of where narrowly tailored statutes properly allowed for civil claims

8 or criminal prosecution based upon falsehoods. For example, Justice Kennedy noted that “[e]ven

9 when considering some instances of defamation and fraud, moreover, the Court has been careful to

10 instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The

11 statement must be a knowing or reckless falsehood.” 567 U.S. at 719.

12 15. The speech in this case involves matters of public concern that is at the heart of the

13 First Amendment's protection, and WASHLITE does not explain how its CPA claim in this case

14 might fall under the few categories identified in Alvarez. Washington courts have previous ly

15 rejected attempts to use the CPA to punish speech made by the media. In Fid. Mort. Corp. v. Seattle

16 Times Co., 131 Wn. App. 462, 128 P.3d 621 (2005), the Court of Appeals upheld the trial court’s

17 dismissal of a CPA claim against the Seattle Times based upon an allegedly false and deceptive

18 mortgage rate chart published in the newspaper. In doing so, the court held “the quarterly rate chart

19 is not paid advertising. It is a news article, and as such it is not published ‘in the conduct of any trade

20 or commerce.’ It does not fall within those activities governed by RCW 19.86.020.” Id. at 468.

21 16. In many of the United States Supreme Court’s seminal First Amendment decisions,

22 the motives for seeking to curtail or prohibit speech were understandable and could be considered

23 righteous. Yet, as the Supreme Court recognized, “If there is a bedrock principle underlying the

24 First Amendment, it is that the government may not prohibit the expression of an idea simply because

25 society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).

ORDER GRANTING MOTION TO DISMISS- 5

 1 WASHLITE’s professed goal in this lawsuit - to ensure that the public receives accurate informatio n

2 about the coronavirus and COVID-19 - is laudable. However, the means employed here, a CPA

3 claim against a cable news channel, runs afoul of the protections of the First Amendment.

4 17. This Court concludes that WASHLITE’s CPA claim against Fox is barred under the

5 First Amendment. Fox’s Motion to Dismiss is GRANTED.

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Dated this ______ day of ____________, 2020.
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10 HONORABLE BRIAN MCDONALD

Judge of the Superior Court
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ORDER GRANTING MOTION TO DISMISS- 6

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ORDER GRANTING MOTION TO DISMISS- 7

 King County Superior Court
Judicial Electronic Signature Page

Case Number: 20-2-07428-4

Case Title: WASHINGTON LEAGUE FOR INCREASED TRANSPARENCY
&apm; ETHICS VS FOX CORP ET AL
Document Title: ORDER

Signed by: Brian McDonald

Date: 5/27/2020 9:51:24 AM

Judge/Commissioner: Brian McDonald

This document is signed in accordance with the provisions in GR 30.

Certificate Hash: EB2FC2BCB5DEBEA152D5B8D72B65DAFD8D8A64C1
Certificate effective date: 9/9/2019 6:12:37 PM
Certificate expiry date: 9/9/2024 6:12:37 PM
Certificate Issued by: C=US, E=kcscefiling@kingcounty.gov, OU=KCDJA,
O=KCDJA, CN="Brian McDonald:
ylMMEpRJ6RGYICi3jC1lQQ=="

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