Can Fox News Really Be Sued for Vaccine Misinformation? (Guest Column)

In the Hollywood Reporter of all places !

Daniel Novack writes

Personal injury lawyers may be the heroes we deserve, but sadly they are not the ones we need right now.

tudies 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.