Wa League For Increased Transparancy, Appellant V. Fox Corporation, Respondent

Citations and pin cites are based on the Westlaw online version of the cited material.
THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
WASHINGTON LEAGUE FOR
INCREASED TRANSPARENCY &
ETHICS, a Washington non-profit
corporation,
Appellants,
v.
FOX NEWS, FOX NEWS GROUP, FOX
NEWS CORPORATION, RUPERT
MURDOCH, AT&T TV, COMCAST,
Respondents.
No. 81512-1-I
DIVISION ONE
UNPUBLISHED OPINION
A NDRUS , A.C.J. — The Washington League for Increased Transparency and
Ethics (WASHLITE) challenges the dismissal of its lawsuit against the Fox
Corporation (Fox) in which it alleged that Fox television personalities violated
Washington’s Consumer Protection Act1 (CPA) by making false statements on-air
about the COVID-19 pandemic. 	Because the First Amendment to the United
States Constitution bars WASHLITE’s action, we affirm the dismissal of the lawsuit.
We reverse the cost award.
1 RCW ch. 19.86.

No. 81512-1-I/2
- 2 -
FACTUAL BACKGROUND
Beginning 	in 	early 	2020, 	the 	coronavirus 	spread 	rapidly 	throughout
Washington and the rest of the country, killing hundreds of thousands and forcing
the 	widespread 	closure 	of 	businesses, 	schools, 	social 	programs, 	and 	the
suspension of court proceedings. 	The impact of the disease was sweeping and
devastated our communities and economy. Predictably, the pandemic and local,
state, and federal government responses to it became the subject of extensive
conversation and debate at home, in newspapers, on internet forums, and on cable
news programs. 	Fox, a program content provider in Washington, participated in
this debate.
On April 2, 2020, WASHLITE brought this lawsuit, alleging that Fox hosts
and television personalities2 violated the CPA by making statements, on-air,
downplaying the danger posed by the coronavirus, describing the pandemic as a
“hoax,” 	and 	accusing 	government 	officials 	and 	media 	organizations 	of
exaggerating the danger posed by COVID-19 in an attempt to undermine former
President Donald J. Trump.3 	WASHLITE sought to enjoin Fox from airing any
further misinformation about COVID-19, to require Fox to retract prior false
statements, and to pay damages to unnamed “John Doe” consumers.
2 The complaint identifies statements made by Sean Hannity, Geraldo Rivera, Laura Ingraham,
Trish Regan, Judge Jeanine Pirro (ret.), Pete Hegspeth, Matt Schlapp, Ainsley Earhardt, and
others.
3 WASHLITE alleged, for example, that on March 7, 2020, Fox host Judge Jeanine Pirro (ret.)
stated on her show that “the talk about coronavirus being much more deadly (than the flu) doesn’t
reflect reality.” On March 8, 2020, host Pete Hegspeth stated “[t]he more I learn about coronavirus,
the less concerned I am.” On March 11, 2020, host Matt Schlapp stated “[i]t is very very difficult to
contract this virus.” And on March 13, 2020, host Ainsley Earhardt stated “it is actually the safest
time to fly.”

No. 81512-1-I/3
- 3 -
Fox moved to dismiss the complaint under CR 12(b)(6), arguing that the
lawsuit was precluded by the First Amendment.4 	The trial court granted Fox’s
motion, concluding the challenged speech involves matters of public concern and
WASHLITE’s CPA claim thus runs afoul of the First Amendment. It awarded costs
of $334.94 to Fox. WASHLITE appeals the order dismissing its CPA claim and a
portion of the cost award.
ANALYSIS
We review a dismissal under CR 12(b)(6) de novo and presume the
plaintiff’s factual allegations to be true. Gorman v. City of Woodinville, 175 Wn.2d
68, 71, 283 P.3d 1082 (2012). 	Under CR 12(b)(6), we may also consider
hypothetical facts not part of the formal record. 	Haberman v. Wash. Pub. Power
Supply Sys., 109 Wn.2d 107, 120, 744 P.2d 1032 (1987) (citations omitted). For
the purposes of this analysis, we will take at face value WASHLITE’s allegations
that the challenged statements are objectively false.
WASHLITE argues that the trial court erred in concluding that its CPA claim
is barred by the First Amendment for two reasons. First, it contends that because
Fox provides its programming content through third party cable providers, it has
no First Amendment rights independent of these cable providers. 	Second, it
maintains that false statements relating to a global pandemic are not protected
speech. We reject both arguments.
4 Fox also argued that WASHLITE’s claim for treble damages under the CPA was based on “vague
and unspecified harms.” WASHLITE, in response, submitted declarations from four of its members
describing the harm they claim to have sustained after listening to Fox commentators, including
lost business opportunities, lost wages due to contracting the virus and missing work, and the
inability to use a recently purchased house and car located in Alaska during the lockdown.

No. 81512-1-I/4
- 4 -
A. 	Fox Has an Independent Free Speech Right
WASHLITE initially argues that Fox’s cable content does not enjoy full
independent protections under the First Amendment because cable providers,
through which Fox offers its programming, retain a degree of editorial control over
that content. This argument is based on an incorrect reading of First Amendment
jurisprudence.
WASHLITE relies on Justice Thomas’s concurring opinion in Denver Area
Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 812-826, 116 S. Ct. 2374,
135 L. Ed. 2d 888 (1996), to support this argument. 	In that case, the Supreme
Court held that a statute authorizing cable operators to refuse to carry indecent
programming on leased channels did not violate the First Amendment. Id. at 737-
53 (plurality opinion), 819-31 (Thomas, J., concurring in the judgment in part and
dissenting in part). 	In his concurring opinion, Justice Thomas stated that “the
programmer’s right to compete for channel space is derivative of, and subordinate
to, the operator’s editorial discretion.” 	Id. at 816-17. 	WASHLITE cites this
language in Justice Thomas’s concurrence to argue that, “as a matter of law, Fox
does not have a free standing unrestricted First Amendment right. 	Rather, it is
subject to the editorial control of cable operators such as AT&T, Comcast and
Spectrum at a minimum.”
But even if Justice Thomas’s concurrence were binding precedent, the
Supreme Court did not hold that cable programmers’ First Amendment rights are
always derivative of the rights enjoyed by cable providers. The statute at issue in
Denver did not directly regulate cable content, but merely permitted cable system

No. 81512-1-I/5
- 5 -
operators the authority to prohibit offensive or indecent programming on their own
channels. Id. at 737. The fact that a cable operator may curtail the speech of Fox
hosts on its own channels does not mean that the State, through judicial action,
may do the same. 	To the contrary, the decision in Denver was premised on a
balancing of the First Amendment interests of multiple parties—namely those of
the programmer who leases the channel and those of the operator who owns the
channel. 	Id. at 743-44. 	The only First Amendment interest implicated in the
present case is Fox’s free speech right.
Nothing in Denver stands for the proposition that cable programmers lack
freestanding First Amendment rights. 	And the argument is inconsistent with the
court’s holding in Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 626, 114 S. Ct.
2445, 129 L. Ed. 2d 497 (1994), where the court addressed a challenge to a law
requiring cable operators to devote a portion of channels to the transmission of
local broadcast television stations. 	In that case, the court recognized that both
“[c]able programmers and cable operators engage in and transmit speech” and
thus “are entitled to the protection of the speech and press provisions of the First
Amendment.” Id. at 636. The fact that Fox offers its programming through cable
providers does not lessen the extent of the First Amendment protections it enjoys
in the context of direct state regulation.
B. 	False Statements Enjoy First Amendment Protections
WASHLITE next argues that Fox’s statements regarding the coronavirus
and the disease it causes, COVID-19, made during a global pandemic, are not

No. 81512-1-I/6
- 6 -
protected because they are false.5 	We reject this contention because the
challenged statements 	implicate matters of 	public concern and 	thereby fall
squarely within First Amendment protections.
“[A]s a general matter, the First Amendment means that government has
no power to restrict expression because of its message, its ideas, its subject
matter, or its content.” 	Ashcroft v. American Civil Liberties Union, 535 U.S. 564,
573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002). Speech on public issues occupies
the highest rung of the hierarchy of First Amendment values and is entitled to
special protection. 	Connick v. Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 75 L.
Ed. 2d 708 (1983). “Speech deals with matters of public concern when it can be
fairly considered as relating to any matter of political, social, or other concern to
the community, or when it is a subject of legitimate news interest.” 	Snyder v.
Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 179 L. Ed. 2d. 172 (2011) (citations
omitted).
To determine whether speech is of public concern, courts examine the
content, form, and context of the speech. Id. In Snyder, parents of a Marine killed
in the line of duty in Iraq sued a religious group picketing the Marine’s funeral with
offensive signs for defamation, publicity given to private life, intentional infliction of
emotional distress, intrusion upon seclusion, and civil conspiracy. 	Id. at 448-50.
5 Fox contends that WASHLITE may not raise this argument under RAP 2.5 because it has been
raised for the first time on appeal. 	But the record demonstrates that the issue was adequately
addressed below. WASHLITE raised this argument in their response to Amici Curiae, asserting
“neither Amici, [n]or Fox, have provided any authority that [a First Amendment right to lie] is a
defense to a state consumer protection act claim by customers of cable television services where
such cable programmers transmit blatant falsehoods regarding a threat to public health.” The trial
court directly addressed this argument in its order to dismiss, concluding that WASHLITE had failed
to demonstrate how its CPA claim might fall under the narrow range of First Amendment exceptions
applying to falsehoods. We therefore review this issue on appeal.

No. 81512-1-I/7
- 7 -
A jury found for the parents on the intentional infliction of emotional distress,
intrusion upon seclusion, and civil conspiracy claims and the district court awarded
$5 million in damages. 	Id. at 450. 	The Supreme Court determined that, despite
the outrageous nature of the religious group’s message, their speech addressed
public content (the political and moral conduct of the United States and its citizens)
and occurred in a public context (on a public street) and was therefore entitled to
special protection under the First Amendment. Id. at 454-58. The court thus set
aside the verdict imposing liability for intentional infliction of emotional distress,
concluding that the First Amendment’s special protections of speech on matters of
public concerns cannot be overcome by the jury’s findings. Id. at 458-59.
The trial court in this case also found that the challenged speech involves
matters of public concern. 	WASHLITE does not dispute this finding, but instead
contends that content-based regulation is permissible in this instance because
false statements regarding threats to public health fall within an exception to the
First Amendment’s broad protections. To support its assertion, WASHLITE argues
content-based regulation of speech is permissible in several instances: false
statements to the government prohibited under 18 U.S.C § 1001 and RCW
9A.76.175, speech inciting lawless action, terroristic threats, and defamation.
WASHLITE 	argues 	false 	statements 	regarding 	threats 	to 	public 	health 	are
analogous and that, “[b]ootstrapping these concepts to this case, Fox cannot
reasonably deny that it knew that characterizing COVID-19 as a hoax was false. .
. . It acted with reckless disregard for the truth of COVID-19 when it regularly

No. 81512-1-I/8
- 8 -
broadcast that the virus was a hoax or words to that effect.” 	There are several
problems with this argument.
First, the challenged statements, concerning a global pandemic affecting
the entire country and made in the context of cable news programs watched by
millions of viewers, clearly implicate matters of public concern and receive special
First Amendment protections no matter how outrageous the statements may be.
As in Snyder, the pandemic, COVID-19, and government responses to this health
threat represent legitimate news interests and are a matter of social and political
concern to all Americans. 	Id. at 453. 	Just as the jury’s finding of intentional
infliction of emotional distress could not overcome these special First Amendment
protections in Snyder, WASHLITE’s claim that Fox acted with reckless disregard
for the truth is similarly unavailing.
Second, none of the limited exceptions to the First Amendment apply to the
false statements made by Fox hosts and guest commentators. “[T]he Constitution
demands 	that 	content-based 	restrictions 	on 	speech 	be 	presumed 	invalid.”
Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660, 124 S. Ct. 2783,
159 L. Ed. 2d 690 (2004). 	“[C]ontent-based restrictions on speech have been
permitted, as a general matter, only when confined to the few historic and
traditional categories of expression long familiar to the bar.” 	United States v.
Alvarez, 567 U.S. 709, 717, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012) (plurality
op.) (quotations omitted). 	These include incitement, obscenity, defamation,
speech integral to criminal conduct, fighting words, child pornography, fraud, and
true threats. Id. “Absent from those few categories where the law allows content-

No. 81512-1-I/9
- 9 -
based regulation of speech is any general exception to the First Amendment for
false statements.” Id. at 718.
WASHLITE analogizes this case to the defamation exception under which
courts may award damages for false statements made with actual knowledge of
their falsity or a reckless disregard for their falsity. 	See New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). 	But
WASHLITE brought a claim under the CPA; it has not alleged defamation.
The CPA prohibits “[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce.” 	RCW 19.86.020. 	A
CPA civil suit for damages may be brought by “[a]ny person who is injured in his
or her business or property by a violation” of the act. RCW 19.86.090. To succeed
on a private CPA claim, a plaintiff must prove (1) an unfair or deceptive act or
practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4)
injury to a person's business or property, and (5) causation. Panag v. Farmers Ins.
Co., 166 Wn.2d 27, 37, 204 P.3d 885 (2009). The CPA does not require proof that
a defendant had actual knowledge that its statements were deceptive or that a
defendant made false statements in reckless disregard for their truth. See Indoor
Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc., 162 Wn.2d 59,
74-75, 170 P.3d 10 (2007) (“An unfair or deceptive act or practice need not be
intended to deceive—it need only have the capacity to deceive”) (quotations
omitted).
In State v. TVI, Inc., d/b/a Value Village, No. 80915-6-I, slip op. (Wash. Ct.
App. Aug. 16, 2021) http://www.courts.wa.gov/opinions/pdf/809156.pdf, this court

No. 81512-1-I/10
- 10 -
recently rejected a similar attempt to graft a mens rea onto the elements of a CPA
claim so that a challenge to speech would pass constitutional muster.
In TVI, the State brought a CPA claim against a for-profit company operating
Value Village thrift stores, claiming that its advertisements misled consumers into
believing that TVI’s sales directly benefited charities. 	Id., slip. op. at 1. 	TVI
contended that holding it liable under CPA was an unconstitutional regulation of
protected speech. Id. at 6. To address TVI’s First Amendment challenge, the trial
court required the State to prove that TVI “knew or should have known” that its
marketing was deceptive. 	Id. at 5. 	This court held that the trial court “erred in
rewriting the law to include a ‘knew or should have known’ mens rea element [in
an effort] to avoid constitutional infirmity.” Id. at 18-19. It held that the CPA “lack[s]
the exacting proof requirements ‘critical to First Amendment concerns’ and [does]
not give ‘sufficient breathing room for protected speech.’ ” Id. 16 (quoting Illinois
ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620, 123 S. Ct. 1829,
155 L. Ed. 2d 793 (2003)). 	We will not rewrite the CPA to include an “actual
knowledge” or “reckless disregard” mens rea where none exists in that statute.
Finally, 	WASHLITE 	cites 	no 	authority 	for 	the 	proposition 	that 	false
statements about threats to public health, even if recklessly made, fall within any
exception to the First Amendment. To the contrary, the Supreme Court in Alvarez
disavowed the principle that false expressions in general receive a lesser degree
of constitutional protections simply by virtue of being false. The court stated that
its 	precedent 	restricting 	the 	value 	or 	protections 	afforded 	objectively 	false
statements

No. 81512-1-I/11
- 11 -
all derive from cases discussing defamation, fraud, or some other
legally cognizable harm associated with a false statement, such as
an invasion of privacy or the costs of vexatious litigation. In those
decisions the falsity of the speech at issue was not irrelevant to our
analysis, but neither was it determinative. The Court has never
endorsed the categorical rule the Government advances: that false
statements receive no First Amendment protection.
Id. at 719. The court went on to explain that,
[w]ere the Court to hold that the interest in truthful discourse alone is
sufficient to sustain a ban on speech, absent any evidence that the
speech was used to gain a material advantage, it would give
government a broad censorial power unprecedented in this Court's
cases or in our constitutional tradition.
Id. at 723.
WASHLITE’s allegations that the challenged statements are false and
recklessly made simply cannot overcome the protections afforded speech on
matters of public concern under the First Amendment, even in the face of the
State’s undoubtedly compelling interest in the public dissemination of accurate
information regarding threats to public health.
The First Amendment's guarantee of free speech does not extend
only to categories of speech that survive an ad hoc balancing of
relative social costs and benefits. The First Amendment itself reflects
a judgment by the American people that the benefits of its restrictions
on the Government outweigh the costs. Our Constitution forecloses
any attempt to revise that judgment simply on the basis that some
speech is not worth it.
United States v. Stevens, 559 U.S. 460, 470, 130 S. Ct. 1577, 176 L. Ed. 2d 435
(2010).
“If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.” 	Texas v. Johnson, 491 U.S. 397,

No. 81512-1-I/12
- 12 -
414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). Although WASHLITE pursues the
meritorious goal of ensuring that the public receives accurate information about
the COVID-19 pandemic, the challenged statements do not fall within the narrow
exceptions to the First Amendment’s protections. 	We affirm the trial court’s
conclusion that, however laudable WASHLITE’s intent, its CPA claim is barred by
the First Amendment.
C. 	Cost Award
WASHLITE contends the trial court erred in awarding costs of $134.94 to
Fox.6 	WASHLITE argues these costs were not “filing fees” recoverable under
RCW 4.84.010(1). We agree.
RCW 4.84.010 provides
[T]here shall be allowed to the prevailing party upon the judgment
certain sums for the prevailing party’s expenses in the action, which
allowances are termed costs, including, in addition to costs otherwise
authorized by law, the following expenses:
(1) Filing fees;
. . . .
(6) Statutory attorney and witness fees; . . .
Former King County Code (KCC) 4A.630.190, entitled “Preparing and providing
documents to the court,” provided
The department of judicial administration [of King County Superior
Court] is hereby authorized to assess and collect a fee for preparing
and providing copies of documents to the court. This fee only applies
when documents have been electronically submitted to the clerk by
parties who wish to have copies provided to the respective judicial
officer. The fee assessed shall be twenty dollars per submission.7
6 WASHLITE does not challenge the award of $200 in statutory attorney fees.
7 According to WASHLITE, the department of judicial administration also charges a $2.49 e-
commerce fee on top of the $20 per submission charge. The fee was increased to $30 per

No. 81512-1-I/13
- 13 -
Under King County Local Civil Rule (KCLCR) 7(b)(4)(F)(i) and (iii), a party
filing a motion with the court must deliver working copies of the motion pleadings
to the hearing judge either electronically using the clerk’s “eFiling application,” or
in paper form. If a party elects to have the working copies submitted electronically,
“[t]he clerk may assess a fee for the electronic submission of working copies.”
KCLCR 7(b)(4)(F)(i). If the party elects to deliver the working copies in paper form,
they must be delivered to the judge’s mailroom in the courthouse where the judge
is located. KCLCR 7(b)(4)(F)(iii).
Fox submitted a cost bill seeking statutory attorney fees of $200 under RCW
4.84.010(6) and RCW 4.84.080, and $134.94 in fees it paid to electronically file its
acceptance of service, a notice of appearance, a motion for limited admission, its
motion to dismiss, its motion to dismiss first amended complaint, and its reply brief
in support of its motion to dismiss. The trial court concluded that Fox was entitled
to recover these costs.
We agree with WASHLITE that there is a difference between a “filing fee,”
as that term is used in RCW 4.84.010(1) and the fees the clerk is legally authorized
to charge a party electing to deliver working copies to a judge via an electronic
filing portal. First, a “filing fee” is generally defined as “[a] sum of money required
to be paid to the court clerk before a proceeding can start.” 	B LACK ’S LAW
DICTIONARY 773 (11th ed. 2019). Second, while one could argue that a “filing fee”
means any fee a clerk assesses for filing a court document or pleading, the record
submission effective January 1, 2021. See KCC Ord. 19193 § 1. See also King County Superior
Court and Clerk’s Fee Schedule,
https://kingcounty.gov/~/media/courts/Clerk/docs/misc/2021_Fee-Schedule.ashx?la=en
(identifying the fee for “electronic working copies”).

No. 81512-1-I/14
- 14 -
here does not support the contention that Fox incurred these costs to “file”
pleadings. It apparently incurred the costs because it chose, for convenience, to
submit working copies via the court’s electronic filing application. 	But it was not
required to do so. 	While it may be less expensive than a messenger physically
transporting paper copies to the courthouse, the court continues to accept working
copies for judges in paper format. For this reason, we conclude that the fees the
clerk of King County Superior Court charges to electronically deliver working
papers to the assigned judge are not “filing fees” under RCW 4.84.010(1). 	We
reverse the cost award of $134.94 and remand for the court to amend the judgment
accordingly.
Fox also seeks an award of attorney fees on appeal under RAP 14.2.
Because WASHLITE’s appeal was not frivolous, we decline to award attorney fees
on appeal.
WE CONCUR: