- This video was made
possible by Tab for a Cause. Raise money for charity
just by opening new tabs which we're going to do anyway. The coronavirus is an all-out pandemic. We're close to reaching levels of almost 100,000 new infections per day. But obviously somebody
has to be at fault, right? Some have blamed President Trump, President Trump has blamed China, and Fox News can't decide
who it wants to blame. But at least we can all agree
that this is Florida's fault. But of course there are
a lot of people suffering in significant ways and many dying as a result of the coronavirus pandemic. And that leaves many wondering who is liable for this whole mess? And more importantly, can I sue them? So by popular demand, and I
got a lot of requests for this, today we're gonna cover
whether you can sue China, whether you can sue President Trump, or Fox News over handling
the coronavirus crisis. (fanfare music) Hey, Legal Eagles, it's
time to think like a lawyer because the coronavirus is in the U.S., and as Americans when there's
a problem we file suit. - Touch me and I'll sue. - But in the court of law
the question still remains who, if anyone, can be
legally held accountable for the damages suffered
from the coronavirus? I mean this is America. There has to be someone that we can sue over this coronavirus, right? Well, let's take a look at
a few of the big players when it comes to who may be responsible for the size and magnitude of the current coronavirus pandemic. So first, can we sue China? Blame certainly just
doesn't lie with one person or even one country for that matter, but for those affected by COVID-19 one might first look to where
it all originated: China. It was first discovered in Wuhan, China, where the virus first appeared
as this mysterious pneumonia that began with just a few
infections of a few patients. And it was China, where
despite having an alleged first-class infectious disease
reporting system in place, they completely failed to
contain the spread of the virus because of local health officials' fear of providing bad news to the
central health authorities for the Republic of China. It could certainly be argued
that but for China's failure to take the proper proactive measures this virus could have
been largely contained, and many, if not most, would not have had to suffer
the impact of the virus. So that is the argument, and whether you believe
that argument or not, I will leave that up to you. But it does raise the question if there is any veracity to it could someone who become
sick with the coronavirus have a legitimate legal
claim against China? We don't often hear about individuals suing another foreign government, and there's a very good reason for that. There's one hurdle that's
almost impossible to overcome under the current
circumstances, and that hurdle is known as the Foreign
Sovereign Immunities Act which was passed in 1976 to
protect foreign sovereigns from the burdens and costs of litigation. You can't really sue foreign governments. Now despite the alleged mishandling of the coronavirus outbreak
and the lack of transparency and presumably the ensuing damages that resulted from the
government and China's actions, any attempt to sue them
would be completely in vain. The Foreign Sovereign Immunities Act states that, "A foreign
state shall be immune "from the jurisdiction of the courts "of the United States and of the States." The force and scope of the
immunity is pretty daunting. For instance, when the family of a child who was killed by an allegedly
malfunctioning hunting rifle sued the manufacturer of the rifle which was actually owned
by the Chinese government, the defendant didn't even bother to file a response to the complaint. Instead the company just sent the complaint
back to the plaintiff and the court ultimately
held that the company was immune under the Foreign
Sovereign Immunities Act. Now on its face this
law might seem unfair, but there's a legitimate purpose behind the broad sovereign immunity right. It's essentially an act of reciprocity in ensuring that the United
States will not be sued in other countries as well. Now there are exceptions to this immunity, but they're incredibly limited. There are some carve-outs
regarding terrorist acts like what we've seen with
Iran and Libya, for example. And there is an exception
if a foreign state actually waives its immunity or if the lawsuit is based
upon a commercial activity. But here the only potentially
relevant exception would be if damages were,
"caused by the tortious act "or omission of that foreign state "or of any official or
employee of that foreign state "while acting within the scope
of his office or employment." Now this sounds like it might
be a plausible exception, except for the fact that this
section specifically bars any claim "based upon the
exercise or performance "or the failure to exercise "or perform a discretionary function "regardless of whether
the discretion be abused." Now based on the information
we currently have, it's not clear how any lawsuits stemming from the coronavirus pandemic
could find a plausible way to get into one of these exceptions and overcome the immunity that
almost all governments have. But you don't know until
you try, I suppose, and that's exactly what an attorney by the name of Matthew
Moore out of Boca Raton is attempting to do right now. Just recently a class action lawsuit has been filed against the
People's Republic of China, among other parties, for damages that have resulted
from the global pandemic. The central allegation
of the complaint is that, "The PRC and the other
defendants knew that COVID-19 "was dangerous and capable
of causing a pandemic, "yet slowly acted, proverbially
put their heads in the sand "and/or covered it up for their
own economic self-interest." The lawsuit then goes on
to allege injury, damage, and loss related to the
outbreak of the COVID-19 virus, "including discernible
physical manifestations "and injuries of trauma
from the negligent conduct, "including, but not
limited to physical pains, "headaches, anxiety, and insomnia." The plaintiffs are
arguing that the lawsuit falls under these exceptions the Foreign Sovereign Immunities Act as a commercial activity, and because of the tortious harm or death that resulted from the Chinese
government's negligence in handling the coronavirus outbreak. Now ironically, none of
the initial plaintiffs have actually contracted
the coronavirus itself, which leads to all kinds
of standing issues, but on top of that, what
they're effectively alleging is that the Chinese government
didn't handle the situation as well as it should have, but you can't sue foreign
governments just because you wish they would have done something different. That's exactly what sovereigns do. They govern and you don't
get to sue governments over mishandling of things
in their core function. This lawsuit is definitely
going to get dismissed, and barring any new information almost all of the
lawsuits in a similar vein are going to be dismissed as well. But that's the Chinese government. It's all the way across the Pacific. What about a government closer to home? What about suing President Trump himself? - I don't take responsibility at all. - What about suing him for how he has handled
the coronavirus response? - When you say me, I didn't do it. - The argument is that President Trump has told people to go back
to work while being sick, stated that the virus
would go away miraculously, and even gave Americans
false hope by claiming that we were on the brink of
having a vaccine available and that tests would be plentiful and available to anyone that wanted them. - Anybody right now and yesterday, anybody that needs a test
gets a test, they're there. They have the tests, and
the tests are beautiful. Anybody that needs a test gets a test. - And there are reports that the president resisted widespread testing to keep the number of
infections artificially low. - I like the numbers being where they are. - And if that's not enough, let's take a very specific recent example where President Trump took to Twitter to promote two antimaleria drugs: chloroquine and its
derivative hydroxychloroquine as miracle cures for COVID-19. And while there may be
some potential benefit from these drugs, the manner
in which the president has presented these drugs, which is based on incredibly
preliminary information led some to believe that
you could take the drugs as a prophylactic
against the virus itself. Such was the case for an Arizona couple that heard the president's report and realized they had
some fish tank cleaner that contained the so-called miracle drug. And because of their
reliance on President Trump, they both decided to ingest
the fish tank cleaner, and as a result the wife was hospitalized while the husband actually died. Now I'm sure most people wouldn't think to ingest
fish tank cleaner, let alone take it
prophylactically against a virus that is not actually fatal for
most people that contract it, but the point is there was
an allegedly misleading if not outright false statement
made by the president. - It's not like a brand new
drug that's been just created that may have an unbelievable monumental effect like kill you. - People relied on those statements, and as a direct result of that reliance individuals were injured
and one actually died. Slam dunk case, right? Well, not so fast, because
just as foreign governments have immunity from suit, so
too do domestic governments, and in particular the president. In the Supreme Court case
of Nixon versus Fitzgerald, the contractor sued the
president, among others, for the loss of his position
with the U.S. Air Force. But the Supreme Court held
in a five to four decision that the President is
entitled to absolute immunity from liability for civil damages
based on his official acts. The Court made clear distinctions
on presidential liability noting that presidents could
still be charged criminally for official acts. In addition, unofficial acts of presidents were also fair play. This distinction between
official and unofficial acts was solidified in the famous lawsuit by Paula Jones against
then President Clinton for alleged sexual harassment committed while he was governor of Arkansas. The Supreme Court held that
there was no justifiable reason including separation of powers that would prohibit federal courts from hearing Jones' sexual harassment suit since it did not have to
do with any official acts made by President Clinton while in office. Justice Stevens who wrote
the majority opinion reasoned that, "The
litigation of questions "that relate entirely to
the unofficial conduct "of the individual who
happens to be the President "poses no perceptible
risk of misallocation "of either judicial power
or executive power." But where a suit involves the
official acts of the president in his capacity as president, then the president would
be immune from suit. Now the argument for giving
the president immunity for official acts is twofold. First, the Supreme Court
noted in Clinton versus Jones the president needs immunity
for official acts so he can, "perform designated functions
effectively without fear." The second justification for
this immunity lies in the fact that there are sufficient
checks and balances on the president that most others including other executive
officials don't have to face. In addition to increased
scrutiny the president faces from the media and a
desire for reelection, Congress can oversee
the president's actions in a variety of ways including
the power of impeachment. At least in theory. Many have argued that the president has misled the American people and has mismanaged the
coronavirus pandemic. - You know, a lot of people
think that goes away in April with the heat as the heat comes in. Typically that will go away in April. We're in great shape though. - And that, as a result of those actions, it should be at least be
considered negligence, but it would be impossible to argue that any of those actions or lack thereof fell outside of his official conduct as President of the United States. And it's for this reason
whether you like him or not you cannot sue him for the
actions that he has taken as President of the United States. Okay, so we're zero for
two, no governments, but there has to be
someone that we can sue and actually get to the
merits of the case, right? Well, maybe. Some have argued that Fox News as well as other cable news channels have promoted incorrect
information, misleading comments, and other conspiracy theories
that have been detrimental to actually fighting the
coronavirus pandemic. - As the Surgeon General
said on Justice last week, you don't need a mask unless you're sick. - But the issue of suing Fox News or other cable news channels isn't exactly coming out of left field. And, as a result, some have argued that Fox News ought to face some liability for the misinformation that
they allegedly have circulated. And Fox News itself
appears to be concerned they may be subject to a
potential lawsuit form viewers for their misleading
reporting of the coronavirus. In fact, just recently
Fox Business Network parted ways with Trish Regan just a few days after she
made the bold declaration that the coronavirus was, "another attempt to
impeach the president." - And like with the Mueller investigation, like with Ukrainegate, they
don't care who they hurt. - So if indeed their reporting
is misleading or false and with a bunch of viewers
that showed up a little late to the game having relied on
the message pushed by Fox News, could these viewers have a
cause of action against Fox News for injuries that they suffered as a result of the coronavirus? Well the initial answer is
they could probably file suit, but that doesn't necessarily mean that the suit would be successful. Probably quite the opposite. In theory, an individual
could bring a civil lawsuit against Fox News for committing an act or omission that gave
rise to an injury or harm for which the courts
could impose liability commonly known as a tort. The argument would most likely be that they breached a
duty to the plaintiffs in presenting them with false
or misleading information and that as a result of which the plaintiffs suffered
significant damages. Now we don't have time
to get into the nuance of every aspect of tort
law and civil litigation, but most likely a claim of this nature could be made by a plaintiff on the grounds of something
like public nuisance or maybe some form of
negligent misrepresentation. In a suit for public nuisance
the plaintiff can recover for activities that hurt a neighborhood or society as a whole. But to be liable for public
nuisance it must be proven that the defendant interfered
with public property or a right that is common to the public. But usually that's reserved for creating a public health hazard. Another argument could be
made for suing Fox News under a negligent
misrepresentation theory, although that's typically
seen in contract actions or quasi-contract actions where the main premise
of the misrepresentation has to do with a person's failure to exercise a reasonable duty of care which in turn causes another person to be injured in some manner. Basically someone says
something that's false. They either knew it was false at the time, or they should have known
it was false at the time, and as a result another person
detrimentally relies on that and incurs damages. But Fox News doesn't have
a contractual relationship with its viewers and doesn't
really have an obligation to do anything on behalf of its viewers including telling them the truth. Some states have consumer
protection statutes that might apply. For example, a consumer watchdog group called WASHLITE in Washington State filed a suit against Fox News
claiming its news coverage violated consumer protection statutes. That particular suit also alleged that Fox committed the tort of outrage which isn't really a thing. Sometimes that's a synonym for intentional infliction
of emotional distress, but that definitely doesn't apply here. So the first suit out of
the gate suing Fox News is pretty much nonsense and is absolutely going to get
dismissed very very quickly. In general throwing nonsensical
claims into a complaint is not a good look, and
that doesn't bode well for the success of your lawsuit. Now despite having these plausible and some not so plausible legal grounds to file suit against Fox News,
it's important to remember that the goal is not
just to file a lawsuit but actually to win and get damages. Now beyond the initial hurdles such as proving that a plaintiff could establish justifiable reliance on information received
from a partisan news source, Fox News will have many
many defenses in its arsenal to probably get all of
these potential lawsuits dismissed pretty quickly. The first and strongest
defense for Fox News is probably free speech
under the First Amendment. You might not agree
with Fox News' message, but they have a First
Amendment right to say it, and they should. Now the framework for
the free speech defense starts with the seminal
case from the 1960s called New York Times versus Sullivan which held that the First Amendment's protections of free speech are not limited to just
truthful statements, because, "An erroneous
statement is inevitable "in free debate, and must be protected "if the freedoms of expression "are to have the breathing space
that they need to survive." Over the years this holding has led to a fairly bulletproof defense for all sorts of tort actions including those for product
liability, defamation, including those involving media outlets. Now I have covered the holding in New York Times versus Sullivan on this channel many times in the past. I'll probably do it again
because it is always relevant, but the idea is that we
shouldn't punish misleading or false speech in most cases. We should simply fight it
with more accurate speech. And we generally don't want
the government making decisions as to what speech is true
and what speech is false. - They are the fake, fake disgusting news. (crowd cheering) - That's a dangerous road to go down. Another defense would be the
lack of proximate causation. Fox News would probably argue that any plaintiff would
be unable to show that whatever the misleading
statements from Fox News was the actual proximate act
that led to their contracting of the coronavirus or
the economic downturn. There are lots of different factors going on at any given time, and it's unlikely that
Fox News contributed in the last instance to
the damages suffered. And another defense is that
Fox News would simply argue that they don't have a duty
to any of their viewers. There's not a special relationship that gives rise to any special duty. If you are walking by a pool
and you see someone drowning, generally speaking unless you
pushed them into the pool, you don't have a duty to pull them out. Now the no-duty rule, which has its origin in cases
involving property owners, generally holds that a
defendant owes no duty of care to warn, protect, or insure against risks that are common, frequent, or expected. And since Fox News doesn't have any particular
special relationship with any of its viewers,
it doesn't owe a duty and therefore can't be held liable for any kind of negligent acts. This is generally what
we call a SLAPP suit, or in other words a strategic lawsuit against public participation. And if you didn't like Bob
Murray suing John Oliver, which I did a video about, then you really shouldn't be in favor of people trying to
stifle news organizations or politicians for
exercising their free speech. We might not like what they have to say, but they should be allowed to say it. So yeah, this is America. If you can dream up a successful lawsuit, then odds are there will be an attorney that will file it for you. - Can you imagine a world without lawyers? (bright music) Oh! - But just because you can file a lawsuit doesn't mean that you should. And it's an unfortunate reality that so many people are suffering
under the circumstances, but the answer is not always a lawsuit. It's hard for me to say
that as an attorney, but it is not always the case
that the best thing to do is to sue people or to even
be able to sue certain people. There are good reasons why we have some of these
legal defenses in place. Now I know you think you'd
make the world a better place by suing these people into oblivion, but really you'd be
doing more harm than good because we don't want
lawsuits that stifle speech. But if you do really wanna
do some good for this world, try Tab for a Cause, which lets
you raise money for charity just by opening up new tabs
and browsing the internet which you were probably
going to do anyway. Tab for a Cause is a
Google Chrome extension that allows you to pick
the charity of your choice and then every time you open up a new tab instead of a blank page it displays a beautiful new customizable
tab with a couple of tiny ads. The money that you generate is
then donated to your charity. You see in real time how much
money is being generated. And it's gamified so that
every time you open up a tab you create a heart which
you can then donate to the charity of your choice. Tab for a Cause is partnered with several COVID-19
specific charities too, so you can fight the effects
of coronavirus directly. Directly from your couch. The gorgeous new tab that you
open up is really helpful too. You can customize it with graphics. I like to see pictures of the outdoors to remember what the outdoors look like. Anyone remember the outdoors? It was really great, wasn't it? And then it lets you customize
things like bookmarks, create to-do lists, and
even write yourself notes, which I find really helpful
to have in a new tab every time I open it up. And once you've opened up a tab or two, you can choose the actual charity that you want the money to go to. There's absolutely no charge to you, and it makes a positive
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the link in the description and install the Google Chrome extension. Tab for a Cause users like you have raised hundreds of
thousands of dollars for charity. It has got to be the easiest possible way to donate to charity. You could even just sit there and open up a bunch of tabs for fun. So just click on the
link in the description to download the extension and do some good by doing
what you were gonna do anyway.
