A Legal Remedy for Virus Hoax Talk?

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Eric Wemple, Fox News has never been so right

Mr. Wemple, who writes a WaPo blog on media issues, is dreadfully upset that someone in the state of Washington is pursuing legal action against Sean Hannity and Fox News—based largely, it appears, on the assertion that Fox News virus hoax talk misleads Washington’s consumers, in violation of that states consumer protection laws. Wemple is understandably upset that a judge in a faraway state might conceivably tell him what things are true and what things are not true, what opinions are legitimate and what opinions are illegitimate.

He sees what we lawyers call a big slippery slope problem. Such concerns are entirely legitimate, and Wemple makes some very good points.

That said, I wish to play devil’s advocate and invite you to reflect on this question:

Is there a First Amendment right for a person, knowing that his words are false, and motivated by malicious intent, to use words that are likely to cause those relying on his statements to risk death or serious physical injury?

In Schenk v. United States (1919), Justice Oliver Wendell Holmes famously wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

The quote from the good Justice was, as we shysters like to put it, high dictum—”a judge’s expression of opinion on a point other than the precise issue involved in determining a case.” The case at bar was not about intentionally and falsely uttering words likely to cause physical harm. Instead, the case at bar was about writing words intended to encourage people to disobey the law—and, on that specific question. a lot of legal water has flowed under the bridge since Justice Holmes’ 1919 decision.

And yet, I believe it remains interesting that, writing 101 years ago, Justice Holmes thought it axiomatic that the Constitution does not forbid punishment of one who, knowing his words are false, utters words in such a manner, and in such a place and time, that his words are likely to result in death or serious physical injury.

Now, just because Justice Holmes thought his dictum stated an axiomatic truth does not mean that you or I have to accept the assertion. But, on the other hand, if we disagree with the Holmes dictum—and if we claim, therefore, that Fox News ought to be immune from any legal accountability for its actions—then, I submit, it is incumbent on us to defend that position with compelling logical arguments. And this, I think, is hard to do.

And, I would further submit that any argument advocating extreme deference to free speech and freedom of the press ought to be evaluated in light of the legal context.

Political Speech. As a general matter, speech uttered in a political context is immune from scrutiny. In short, you have a constitutional right to lie. I think the policy considerations underlying that doctrine are obvious.

But do you have an absolute constitutional right to lie in other contexts? Nah, not so much.

Untrue Speech that Injures Reputations. State tort law prohibits false speech injurious to reputation—in other words, the law of defamation—is constitutional, with this proviso: if the person claiming to have been defamed is a public figure, the Constitution blocks the claim of defamation unless the victim shows “actual malice,” i.e., the speaker knew that his claim was false or recklessly disregarded whether it was true or false.

I would suggest therefore, that if you advocate blanket immunity for Fox News, you need to show either that reputational interest is more important than the law’s interest in protecting law and health, or that the entire body of case law on the intersection of defamation and free speech is wrong, and should be overthrown.

Commercial Speech. The First Amendment affords some protection to firms advertising their products, but does not protect commercial fraud—i.e., lying to sell your product.

Commercial Speech about Medicines. Finally, note that the Food and Drug Act allows heavy regulation of commercial speech relating to medicines.

Laws Forbidding Reckless Endangerment. My state makes it a misdemeanor to, intentionally or recklessly, create a situation where others are exposed to serious physical danger. I am sure that such laws are common in other states as well. The statute was not written with Fox News’s conduct in mind, but its language certainly seems to fit the bill.

Human Wickedness—Common or Novel

The forms which human wickedness can take are numerous. For the most part, if we behave perversely, our iniquitous conduct fits some common pattern of evil, and the law has established a remedy for it.

At times, however, a person or group will engage in a novel form of wickedness—something not specifically addressed in any statute or judicial decision. That can create a quandary for those advocating legal accountability—and I am sure that Sean Hannity and Fox News will avail themselves of each and every possible argument to dodge responsibility. I do not know whether they will succeed or fail.

But I am pretty sure they do not enjoy a constitutional right, acting maliciously and with knowledge of the falsity of their statements, to encourage their followers to endanger their lives, contrary to the findings of science and medicine.