Since the vaccines for COVID-19 became available, public health authorities, respected medical professionals, some employers, and responsible politicians have been urging, coercing, and bribing us all to get immunized. With the emergence of the more infectious, more virulent, and now dominant delta variant, soaring positive rates have pumped new urgency into these pleas. Yet vaccine uptake rates have slowed to a crawl, and most of those who remain unvaccinated say they don’t plan to change their minds. Unless that changes, expect higher mortality rates, breakthrough infections, and potentially a return to the pandemic lockdown state we’d all hoped we’d left behind.
A constellation of reasons can be cited for ongoing vaccine hesitancy, but one key factor is the prevalence of quack “experts” willing to misinterpret data, lie about statistics, and just plain make stuff up. Leading the misinformation charge has been Fox News—and particularly Tucker Carlson. Night after night, Carlson has provided a platform for sowing fear and confusion among his viewers about the efficacy of the vaccine and its side effects. Although the network has recently sounded a more responsible note, that turnabout has by no means been across the entire network and it comes too late for an untold number of people who have been newly sickened or died from the disease, and who might have been saved through immunization. There may actually be some legal remedy, though, for the damage wrought by the network. COVID victims who were taken in by Carlson’s vaccination misinformation, or their estates, may be able to sue Fox News under the ancient common law theory of fraud. They would have a reasonably good chance of success, too.
Tort law allows anyone injured by the intentional bad act of another to sue for personal injury, property damage, or economic loss caused by the wrongful activity. The specific claim that relates to harm caused by deliberate misrepresentations is fraud, and, depending on what misinformation someone ingested, and how they reacted to it, it’s easy to imagine that many viewers would be able to state a good claim. What’s needed to prove a case for fraud is clearly established through centuries of judicial decisions.
First, the plaintiff has to prove that the defendant made a misstatement of fact, knowing that it was false or with reckless disregard as to whether it was true or false. (“Reckless disregard” means that the defendant did no investigation at all, but just put the statements out there.) Examples of such misstatements on Fox are abundant. Here are a few clips (starting about 50 seconds in) where Carlson and Lara Trump, as a guest on Sean Hannity’s show, say that COVID is really about “social control,” and where Carlson calls the COVID response a “scandal.” Here’s Carlson questioning whether the vaccine works, since those who are vaccinated are still urged to take precautions: “Maybe it doesn’t work, and they’re simply not telling you that.” (This is not how vaccine efficacy works. No immunization is 100 percent effective, so there’s always a small chance of infection, a smaller chance of illness, and an infinitesimally small chance of death even among the fully vaccinated.) Here’s Carlson giving airtime to Alex Berenson, “The Pandemic’s Wrongest Man,” allowing him to spout more nonsense about the vaccine’s supposed lack of efficacy. Want more? Beyond Carlson, here (starting at about 3:21) are some Fox News personalities misrepresenting the door-to-door effort by the Biden administration to educate people and answer their questions about the vaccine. It’s the Taliban! It’s a violation of medical privacy! It’s to force you to take the vaccine! (No, no, and no. The vaccine educators are from the local community; they don’t even work for the government.) These purveyors of misinformation are either lying, or acting in reckless disregard of truth versus falsity by not doing even the most basic research to check out what they’re spewing. And it’s also considered a misrepresentation to state a half-truth, leaving out vital information needed to place a statement in context. That’s exactly the case with Carlson’s mock questioning of the vaccine’s efficacy; it paints a willfully incomplete picture.
To prevail on a fraud claim, the plaintiff next has to show that the defendant intended that the injured party rely on the misrepresentation (this can be inferred from the fact that Fox holds itself out as a purveyor of news) and that the plaintiff reasonably relied on the misstatement. Each potential plaintiff would have to allege, and then prove, that they had relied on Fox and the “experts” making the statements that induced them to forgo vaccination. It’s impossible to imagine that at least some of the sickened and killed didn’t count on Carlson, his guests, and the rest of the Fox misinformers, and it would be hard to hear Fox attorneys claim that no one should “reasonably” rely on what their news station puts out. (Ironically, the network has successfully made this argument in court before, but in a case that involved statements by Carlson that might reasonably be seen as hyperbole. It’s a different story when he puts out information—some of it from so-called experts—that makes demonstrably false claims in a case involving hard facts.)
The final requirement for a successful fraud claim is a showing of economic loss, which would be easy enough. Hospital bills not covered by insurance, lost wages, and even lost income from the deceased, in a wrongful death situation, are some ready examples.
But one final hurdle remains. Although such a case would look strong when ticking through the requirements of a fraud case, this situation does not look much like a traditional claim, which typically involves a direct out-of-pocket loss that was itself intended by the fraudulent party. More run-of-the-mill cases would include stock fraud, or selling someone a used car the seller represents as safe, but which has a shoddy transmission of which he had knowledge. Yet even though the misstatements in this case seem designed not so much to bilk viewers out of money directly, it could be argued that Fox News intended to pad its bottom line by catering to a particularly conspiracy-minded market by pushing its anti-vaccine garbage. Even beyond the potential economic gain to Fox, though, at least some courts have been willing to extend fraud claims to situations where the defendant’s conduct violates a strong public policy—even without demonstrable economic loss. In one tragic situation, for instance, parents adopted a child where the agency had failed to disclose his very disturbing history, which included abuse and the boy’s subsequent propensity to commit extreme violence. The couple was not only able to rescind the adoption, but also to state a claim for fraud. The Pennsylvania Supreme Court looked to the importance of encouraging people to adopt children, and worried that agency misconduct like this would compromise that goal and relieve bad actors of the duty of trust they owe to families in these emotionally fraught circumstances. Other states have agreed with this approach in adoption cases, citing the capacity of the common law to evolve to meet new challenges. And if successful, the Pennsylvania court noted, plaintiffs would be entitled not only to economic damages, but also damages for their pain and suffering, and even for punitive damages—to deter future such misconduct.
Similar policy arguments apply here; if anything, they are even stronger. In our world of segmented media, Fox News watchers rely heavily on what they hear on the network. They trust Fox to deliver truthful information. No greater breach of that trust can be imagined than relating misinformation designed to keep people away from lifesaving vaccines. An article in the Daily Mail quoted a doctor from Alabama—where vaccination rates are the lowest in the nation—who works with sick and dying, and young, COVID patients. Here’s a heartbreaking excerpt from her Facebook post: “One of the last things they do before they’re intubated is beg me for the vaccine. I hold their hand and tell them that I’m sorry, but it’s too late. A few days later when I call time of death, I hug their family members and I tell them the best way to honor their loved one is to go get vaccinated and encourage everyone they know to do the same. They cry. And they tell me they didn’t know. They thought it was a hoax.”
How many of these people relied on Fox News? Perhaps we will one day find out in court.