We Need Unity, Not Censorship, to Beat COVID-19.

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  • 03/02/2023

As people search for someone to blame for the pandemic’s nearly one hundred thousand deaths, the hunt for a coronavirus scapegoat is in full swing. But while that emotion is understandable, we should not let our society go down this path.

WASHLITE is cynically exploiting Americans’ desire for a scapegoat amid the tragedy.

Earlier this month, the Washington Institute for Transparency and Ethics (WASHLITE) filed a lawsuit against Fox News, alleging that the news network had “acted in bad faith to willfully and maliciously disseminate false information” by minimizing the danger of the novel coronavirus. The suit specifically names Fox owner Rupert Murdoch, as well as Sean Hannity and Trish Regan for their broadcasts on March 9th.

WASHLITE is cynically exploiting Americans’ desire for a scapegoat amid the tragedy.

During times of crisis, people will always look for a guilty party to punish. Some harbor a deep need to crucify whatever or whomever they feel is to blame. In past pandemics, societies have often blamed outsiders for their troubles and targeted these groups for retaliation. In 1349, Jewish communities in Frankfurt, Mainz, and Cologne were wiped out, scapegoated for their perceived role in Europe’s Black Death. In 19th century America, Irish immigrants were accused of and attacked for their rumored role in spreading cholera.

It’s no surprise, then, that a familiar impulse to accuse and attack is taking hold, especially in our hyper-politicized environment. Republicans are pointing their fingers at China, while Democrats are pointing theirs at President Trump. At a moment when casualties from the pandemic in hotspots like New York are reaching their peak, however, this is not inspiring or useful behavior.

The lawsuit against Fox News is especially troubling. It moves beyond typical blame-game-politics into the targeting of free speech in new, unprecedented ways. Worse still, these actions erode America’s confidence in our most important social institutions.

[caption id="attachment_182434" align="aligncenter" width="1920"]Freedom of speech. Freedom of speech.[/caption]


The WASHLITE lawsuit is frivolous on its face and will most likely fail in court. The First Amendment protects our freedom of speech, and that freedom does not disappear for media personalities.

"This case presents a frontal assault on the freedom of speech. Fox’s statements are core political speech on a matter of public concern."

In the 1964 New York Times v. Sullivan decision, the Supreme Court held that the First Amendment protects even “half-truths” and “misinformation,” so long as there is no proof of deliberate falsehood or reckless disregard for the truth. Georgetown Law Professor Erin Carroll, writing for the left-leaning blog Just Security, provides a detailed assessment of the relevant case law, showing that courts have routinely barred “liability against broadcasters and publishers even if it was foreseeable that the information they disseminated might be used in a negligent or dangerous way.”

Of course, we want truth and facts from our media and public leaders. But, in the fog of a crisis, we should expect people to get things wrong from time to time. That doesn’t mean it’s “misinformation” or “fake news,” and it especially doesn’t mean that it’s malicious, deliberately false, or worthy of legal consequence. Otherwise, we would have reason to sue the WHO for saying masks are not necessary, Governor Andrew Cuomo for saying COVID-19 wouldn’t be as bad here as in other countries, or Speaker Nancy Pelosi for telling people it was safe to go out in Chinatown.

As Fox’s motion to dismiss appropriately states, “This case presents a frontal assault on the freedom of speech. Fox’s statements are core political speech on a matter of public concern.” Simply put, this is the wrong way to punish even a bad opinion. We need to preserve the ability of journalists, scientists, and politicians to voice their concerns about rising threats, even when those opinions are unpopular or turn out to be wrong.

Moreover, we should all be humble enough to acknowledge that most of us have been wrong about aspects of the coronavirus to date.

Nearly every television outlet, at various points between January and March, had someone on the air who misunderstood the scope of the outbreak. “If you’re freaked out at all about the coronavirus,” CNN’s Anderson Cooper said on March 4th, “You should be more concerned about the flu.” Less than a week later, Mayor Bill de Blasio said, “there’s very little threat” for New Yorkers under 50, a comment which was broadcast on a number of stations.

These statements were made the same week as Sean Hannity’s and Trish Regan’s, the ones at the center of this lawsuit, yet neither CNN nor the Mayor are listed as defendants. Their absence exposes the political bias of WASHLITE and their lawsuit.

I can understand the temptation for many on the left to relish the current lawsuit against Fox News with some amount of schadenfreude. But every news organization in the country should view this lawsuit as a threat to their First Amendment rights.  Like Kara Swisher in her New York Times column, journalists should decry the lawsuit. “Lawsuits are a bad idea,” wrote Swisher, “Here’s why: I believe in Fox News’s First Amendment right as a press organization.“

[caption id="attachment_182433" align="aligncenter" width="1920"]Fake news. Fake news.[/caption]


There is no doubt that the novel coronavirus is a massive threat; so is the rising tide of misinformation we’ve seen the past five years. A major study at MIT found that falsehoods dominate facts on social media platforms like Twitter and Facebook in terms of audience reach, penetration, and speed of spread. As “fake news” rises, it is damaging our democracy, which relies on truthful information so that voters can make informed choices.

Yellow Journalism was ultimately weakened, not by government censorship, but by the public’s demand for more accurate news and the emergence of the modern newspaper industry.

But we shouldn’t substitute the chaos of social media with the, perhaps, more significant threat of censorship by the government or big tech companies. Yellow Journalism was ultimately weakened, not by government censorship, but by the public’s demand for more accurate news and the emergence of the modern newspaper industry. Misinformation will similarly be defeated by a weary public, public advocacy, and new innovations that can only emerge through a free and open press and society.

But we aren’t going to solve either the pandemic or misinformation with frivolous lawsuits against Sean Hannity, Trish Regan, or Rupert Murdoch.

Instead, Americans can defend one another from objectively unreasonable attacks, and we can correct what is wrong or incomplete without legal action. We should ensure our right to do so. That’s how we rebuild trust in our institutions, and that trust will be needed as we seek to re-open the economy, pass new legislation, and recover from this public health crisis.

Now more than at any point in the past two decades, we must lift up the best versions of our media institutions, our political parties, and our fellow Americans. Based on my experience of this country, I do not doubt that we can and will.

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