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Studies indicate much of the vaccination gap in America is due to political partisanship. Take The Kaiser Family Foundation’s July 8 report which showed counties that voted for Joe Biden in the 2020 presidential election have an 11.7 percent higher rate of vaccination than those that voted for Donald Trump. Something has to be done about the rampant misinformation spreading in conservative media.
Enter the tort lawyers! Delaware Law School Professor John Culhane on July 23 posited in Slate that Fox News could be sued for propagating harmful vaccine misinformation. He argues Fox meets all the traditional elements of common law fraud: knowing misstatement of facts, intended and foreseeable reliance by viewers, and economic loss (lost income, hospital bills, etc).
Case closed? Not so fast. Individual autonomy is a foundational element of American personal injury jurisprudence. Therefore, to be held liable for the misfortune of another person, one must first have a “duty of care.” All of us have them, and they typically boil down to being reasonably conscientious of others’ health, safety, and personal autonomy. Drivers owe a duty to pedestrians to obey traffic signals and pilot their vehicles attentively, for example, and chefs owe a duty to diners not to undercook their food.
It’s also true that certain professions owe extra care to their clients and the public by virtue of their positions of societal trust. Their speech can be regulated as long as a government interest is substantial. (Attorney advertising: Prior results do not guarantee similar outcome.)
But courts have consistently rejected any sort of fiduciary obligation on the part of the news media. Simply put, there is no such thing as journalistic malpractice. Journalists and other on-air personalities are no more responsible for your health and wellness than any other member of your community — no matter how authoritative or persuasive they can be.
Second, any law that curtails or punishes speech must contend with the First Amendment. America has a proud tradition of protecting “bad” speech (I should know — I used to work for the tabloids). Contrary to many an amateur legal commentator’s belief, you can yell fire in a crowded theater under certain circumstances.
Under the First Amendment, courts apply strict scrutiny to political speech. Take Tucker Carlson’s statement about the COVID-19 vaccine: “Maybe it doesn’t work, and they’re simply not telling you that.” Sure, the “just asking questions” shtick is tiresome, but Carlson is unquestionably speaking about a matter of public concern.
“Strict scrutiny requires that the government deploy the least restrictive means to serve a compelling government interest if it is going to limit speech otherwise fully protected under the Constitution,” says Sandra Baron, a First Amendment expert and lecturer at Yale Law School. “Preventing the spread of a dangerous virus is certainly a sufficiently important state interest, but applying a catch-all tort like common law fraud is the opposite of narrow tailoring.”
Granted, not all speech is created equal — for example, obscenity is not subject to robust First Amendment protection (though one man’s vulgarity is another’s lyric). Commercial speech, defined as speech that “merely proposes a commercial transaction or relates solely to the speaker’s and the audience’s economic interests,” is still subject to First Amendment protection, though to a lesser degree than political speech.
To defrock Fox News of the extraordinary protection the Constitution affords to political speech, a plaintiff would have to argue that Carlson’s political commentary is simply window dressing for a commercial transaction. In other words, that Fox News is using anti-vaccine propaganda to convince its viewers buy something (besides pillows). That’s a tall order. As Culhane acknowledges, it would be hard to prove that Fox News intends to kill its most loyal customers.
Though the vaccine denialism is risible, if all socially harmful behavior was subject to liability the world would have gone bankrupt long ago and Hollywood would never have made it to Jackass 4: Forever. As the saying goes, when you’re a hammer, everything looks like a nail. Therefore tort law professors can be forgiven for thinking personal injury suits are the solution to societal ailments. Unfortunately for anyone who has ingested Hydroxychloroquine, Ivermectin, or just plain old bleach, they will just have to try their case in the court of public opinion.
That is not to say that Fox News could not be susceptible to lawsuits from any experts or vaccine manufacturers, similar to how both Dominion Voting Systems and Smartmatic each sued the network for promoting claims of election fraud. But such lawsuits would be premised on libel, not fraud, which violates a universal duty of care not injure another’s reputation unjustly. In that case, Fox News would be well-served to remind viewers that it’s hosts engage in “exaggeration” and “non-literal commentary.” If “Don’t try this at home” is good enough for Jackass, surely it’s sufficient for Tucker Carlson.
Daniel Novack is a publishing industry attorney and chair of the New York State Bar Association Committee on Media Law. This article reflects his personal views only.
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