I testified yesterday on possible private and public limitations on free speech and the free press, including a letter from Democratic members pressing companies to remove Fox News and networks from cable.  Democratic members sent the letter to AT&T, Verizon, Roku, Amazon, Apple, Comcast, Charter, DISH, Cox, Altice, Hulu and Google’s parent company, Alphabet. During the hearing, House Democrat Anna Eshoo (D., Cal.) insisted that she was only “asking questions” and then reframed the objections to the letter as whether the letter itself was a violation of the First Amendment. It seemed like the line from A Hologram for the King: “It all meant something. Until it didn’t.”

Given the limited opportunity to respond to Rep. Eshoo in the hearing, I wanted to respond.

Rep. Eshoo insisted that the hearing itself was guilty of the type of disinformation that she was combatting in her letter co-authored by Jerry McNerney (D-Calif.). That itself was disconcerting since we were sharing opposing views on the import of her letter, including widely shared views that the letter was pressuring these companies to drop Fox News and other networks from cable programming.

The First Amendment Argument

Eshoo started out by objecting by reading the First Amendment on the government abridging free speech. She then added:

“The First Amendment prohibits Congress from enacting laws abridging the freedom of speech. . . It does not, however, stop us from examining the public health and democratic implications of misinformation. The idea that members asking questions violates the First Amendment is absolutely absurd; it’s our job to ask questions.”

She then added that she had submitted the letter to the Congressional Research Service (CRS) to see if there was such a violation in the letter. The problem is that I did not say that the letter itself was a violation of the First Amendment. Indeed, my testimony said the opposite while noting that free speech values go beyond the First Amendment. Indeed, I raised the danger of letting members do indirectly what they cannot do directly. Asking the CRS to look for First Amendment violations is about as useful as asking them to look for endangered species violations. It was answering a question not asked.

Ironically, the emphasis on the narrower test under the First Amendment is precisely what some of us have objected to in this and other controversies. As I stated in my testimony:

What is particularly concerning is the common evasion used by academics and reporters that such regulation is not really a free speech issue because these are private companies and the First Amendment only addresses government restrictions on free speech. As a private entity, companies like Twitter or publishing houses are clearly not the subject of that amendment. However, private companies can still destroy free speech through private censorship. It is called the “Little Brother” problem. That does not alter the fundamental threat to free speech. This is the denial of free speech, a principle that goes beyond the First Amendment. Indeed, some of us view free speech as a human right.

Consider racial or gender discrimination. It would be fundamentally wrong even if federal law only banned such discrimination by the government. The same is true for free speech. The First Amendment is limited to government censorship, but free speech is not limited in the same way. Those of us who believe in free speech as a human right also believe that it is wrong to deny it as either a private or governmental entity. That does not mean that there are no differences between governmental and private actions. For example, companies may control free speech in the workplaces and companies have been recognized as having their own free speech rights. However, the social media companies were created as forums for speech. Indeed, these companies sought immunity on the false claim that they were not making editorial decisions or engaging in viewpoint regulation. No one is saying that these companies are breaking the law in denying free speech. Rather, we are saying that they are denying free speech as companies offering speech platforms.

Some have noted that it is possible for pressure from government officials to constitute state action for the purposes of an actual First Amendment claim. Thus, they cited cases when a borough president in New York City asked a billboard company to take down a sign or when a village official wrote to a local chamber of commerce objection to an ad. In both cases however the standard involved a dismissal where all facts must be inferred in favor of the opposing party. The point is valid that letters can cross the line as a threat of retaliation or action against a private company.  Yet, there are countervailing political speech and legislative interests for members of Congress. Courts are often uncomfortable in drawing such lines between advocacy and coercion by elected officials. A great variety of letters can be taken as veiled threats of possible congressional action. I know of no case where a letter of this kind ultimately resulted in a successful claim. There is also the question of relief. If a court were asked to enjoin Eschoo, what would the court order her not to do? She is engaging in free speech as a representative of her district as well as inquiry as a member of the legislative branch. If the relief is a declaratory judgment, what would be declared? That it is unconstitutional to encourage companies to apply misconceived moral standards?

There is a serious question of whether Congress is using Section 230 (and the threat to remove its protection) as a way to coerce companies to censor political critics. That is a more substantial theory with a closer nexus between legislative authority and direct demands for action.

The vast majority of criticism directed at this letter (including my own) was that it undermined free speech values and not that it was in itself a First Amendment violation. This ties into the next issue.

When Questions Are Answers

Rep. Eshoo then noted “Now I don’t know, Mr. Turley, if you find this so chilling that it is actually glacial for Congress to ask strong, important questions.” As I noted in the hearing, these were clearly statements masquerading as questions.  Putting a question mark after this line does not make any less than a statement:

“What moral or ethical principles (including those related to journalistic integrity, violence, medical information, and public health) do you apply in deciding which channels to carry or when to take adverse actions against a channel?”

The vast majority of writers — on the left and right — took the letter as less of an inquiry than a not-so-veiled demand. The letter was sent after many have campaigned to force these same companies to drop Fox News and other networks. Demanding to know why these companies still air Fox News was obviously as a statement against such access. Indeed, the letter was heralded by many who want to see Fox News taken off the air and saw the letter as prompted by the campaign to bar Fox News from cable.

In fairness to Rep. Eschoo, parts of the letter did request information. Moreover, I do not question her deep-felt and honest concerns over the impact of false and extremist speech. I share some of those views even if we disagree on how such speech should be addressed in our country. (Indeed, I share many values with Rep. Eschoo and support her efforts particularly in the area of the environment and protecting the California coastal areas).

The “chilling” aspect of Eshoo’s letter was also her insistence that there should be “moral” criteria applied in deciding whether to allow viewers to watch Fox News and other networks. The answer should begin with the obvious principles of free speech and the free press, which are not even referenced in a letter pushing for major news outlets to be essentially shutdown. Instead, the companies are asked if they will impose a morality judgment on news coverage and, ultimately, access. This country went through a long and troubling period of such morality codes being used to bar speakers to censor material in newspapers, books, and movies, including feminists, atheists, and other disfavored groups. To invite a return to such subjective standards is alarming, particularly in barring the preferred news sources for tens of millions of citizens. Fox News has long ranked as the most watched cable network for news, and is the primary source of news for tens of millions of citizens. Like CNN and MSNBC, it is also the target of criticism over the balance of its reporting. However, the role of these companies is not to take “adverse actions” against channels because of such objections to the focus or viewpoints exhibited on such channels.

The letter stresses that “not all TV news sources are the same” and confronts the carriers on airing the networks as purported “hotbeds” of disinformation and conspiracy theories. Specifically, they object that “Fox News . . .  has spent years spewing misinformation about American politics.” The letter does not address the long-standing objections to networks like CNN, MSNBC, and others for pronounced bias and refuted stories. There is a long list of such false stories. Some were corrected and some were not. Indeed, major media figures like Chuck Todd have made demonstrably false statements and aired a clearly false or misleading clip without any correction. Those were false stories but there are a broader array of stories that advance arguments based on rejected theories or legal interpretations. Claiming that there are strong criminal cases to be made on rejected legal interpretations is “disinformation” but it is also a form of opinion – and clearly an exercise of free speech.

Yet, the letter solely seeks to bar those networks that the members and their constituents do not like or likely watch. It is a complete list of every major television channel viewed as conservative-leaning. If the companies were to yield to such pressure, there would be no major television outlet offering a substantial alternative to the coverage of companies like CNN and MSNBC. Tens of millions of viewers would be forced to watch those channels or watch nothing at all. Frankly, such curtailment or outright elimination of these networks would work to the advantage of these and other Democratic members.  There is a rather obvious conflict of interest that is laid bare not only by the demand but the inclusion of only networks with large conservative audiences. The objection to “spewing misinformation about American politics” is clearly made from one side of such politics.

Finding Clarity and Common Ground

I do believe that the Eshoo letter is an attack on free speech and the free press values. However, I appreciated the civil and substantive dialogue in the hearing. While Soledad O’Brien and I disagree on points, we share a concern for how our media is changing with the “echo chamber” model that is now widely adopted. We also agree on the need to bolster local media and to more clearly distinguish between opinion and news coverage. Finally, all of the witnesses agreed that Congress should not try to regulate the media and that there should not be a push to take Fox and other networks off cable platforms — a rejection of the underlying premise of the letter.

Where O’Brien and I disagree is on her position that we should all support free speech but not for “liars.” O’Brien insists that media should bar “liars” from interviews without defining how we make such judgments. She simply suggests that it is obvious Free speech means little if it does not apply to anyone accused of “disinformation.” We have seen how subjective that standard can be.

O’Brien said that the media should not be continued interviews after former Trump adviser Kellyanne Conway used the phrase “alternative facts.” Yet, wasn’t that news? Conway was interviewed about that phrase and what she meant. Under O’Brien’s approach, she would not have been interviewed further? I obviously disagree that interviews with challenged individuals is still not news. I noted in the hearing that Gov. Andrew Cuomo has been accused of lying about about nursing home deaths from Covid-19 and his Administration’s past statements to the state and federal governments. Should we refuse to interview because some say he is a liar? What if we believe he is lying, isn’t it still news to interview him and challenge him on those points?

These are difficult and interesting questions. I would prefer to discuss them at media conferences rather than a congressional committee. Particularly with the release of the Eshoo letter, the hearing was widely taken as an effort to apply pressure on these companies and fuel demands for forms of private or public speech controls.

I was hoping that Rep. Eschoo and other Democratic members would use the hearing to offer a simple and unifying statement: we oppose efforts to remove Fox News and these other networks from cable programming. Not a single Democratic member made that statement, which (in my view) should be easy for anyone who believes in free speech and the free press. Even though every witness (including one who lost her father to Covid-19) made that statement, no Democratic member was willing to state publicly that they would oppose efforts to remove Fox News from cable access. That silence was also chilling to the point of glacial.

This blog was updated.