Below is my column in Hill about yesterday’s hearing on possible private and public restrictions on freedom of speech and the free press, including a letter from Democratic members asking companies why they are not removing Fox News and Networks off the cable. I recently responded to comments made by Rep. Anna Eshoo at the hearing. However, the letter highlighted continued member pressure on both big tech and cable providers to silence opposing viewpoints. Most disappointingly, none of the Democratic members used the hearing to make a simple and consistent statement: We reject efforts to remove Fox News and these other networks from cable programming. Not a single Democratic member made this statement, which (in my view) should be easy for anyone who believes in free speech and free press. While every witness (including one who lost her father to Covid-19) made this statement, no Democratic member was willing to publicly state that they would oppose efforts to remove Fox News from cable access. This silence was cold even up to the glacier.
Here is the column:
The English essayist Samuel Johnson wrote: “When a man knows that he is going to be hanged in a fortnight, it focuses his mind wonderfully.” I thought of Johnson’s words as I prepared to appear before a House committee investigating restrictions on freedom of expression, including a campaign by some Democrats and activists to remove networks like Fox News from cable operators. As someone who just joined Fox News as a legal analyst from CBS and the BBC, the hearing focused “wonderfully” on the future of free speech and the free press.
Freedom of speech in the United States is increasingly being described as a threat that needs to be controlled, contrary to the value that defines us as a people. While I am considered by many to be a “freedom of speech purist,” I maintain what was once a common view of freedom of speech. I believe free speech is the greatest protection against poor free speech. This view is admittedly under attack and may even be a minority view today. However, history has shown that public or private censorship does not produce better language. It just creates more censorship and controlled language.
There is no difference of opinion that we are exposed to a stream of false, hateful, extremist speech on social media and other public forums. This speech is not without a cost: it drives those who are full of anger, victimizes the gullible and alienates the fringes of our society. It’s a scourge, but not a new one.
The Constitution was written not only for times like these, but also for times like these. Politics has literally always been something of a blood sport. At the beginning of our republic, the republicans and federalists did not try to “annul” each other in the modern sense. They tried to actually kill each other through measures like the Alien and Sedition Acts. There were also widespread false conspiracy theories about alliances with Britain, France, Spain and other foreign powers. Newspapers and brochures were very biased and partisan.
Members of Congress are now pushing for public and private censorship on the Internet and other forums. They are joined by an unprecedented alliance of scholars, writers, and activists calling for everything from censorship to incarceration to blacklists. For example, an article published in The Atlantic by Harvard law professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods called for Chinese-style censorship of the Internet, which says, “In the great debate of the past two decades about freedom versus control China was largely right and the United States largely wrong. “
Much of the efforts of politicians and activists have been directed towards using big tech to censor or lock down opposing viewpoints in order to indirectly accomplish what cannot be directly achieved when freedom of expression is restricted. Congress could never engage in this type of discrimination against news organizations under the First Amendment.
However, it can use its influence over private companies to restrict freedom of expression. The move obviously makes sense if there is a desire to shape and control opinion – the essence of state-controlled media. Control of language on certain platforms is meaningless if citizens can still hear conflicting views from other sources. Not only do you need to control the narrative, but also eliminate alternatives to it.
The most extreme efforts became apparent this week when some Congressmen sought pressure on companies like AT&T to reconsider whether viewers should be allowed to watch Fox News and other networks. In a recent letter to cable companies like AT&T, California House Democrats Anna Eshoo and Jerry McNerney appeared to echo calls from activists to remove such networks from their lists. Members stressed that “not all television news sources are created equal” and urged these companies to consider their role in facilitating such “dissemination”.
The letter was addressed solely to those networks that members and their constituents do not like or are unlikely to see, a list of all the major television networks that are considered conservative. If cable carriers gave in to such pressures, there would be no major television station offering a substantial alternative to covering networks like CNN and MSNBC. Tens of millions of viewers would be forced to watch these channels or nothing at all. Restricting or eliminating Conservative networks would clearly benefit the Democrats – an obvious conflict of interest demonstrated not only by demand but also by just including networks with a large Conservative audience.
Democrats are pushing for cable operators to explain their “moral” criteria to enable tens of millions of viewers to access Fox News and other target networks. The answer should start with the obvious principles of free speech and free press, which Eshoo-McNerney’s letter does not even refer to. Instead, companies are asked whether they will impose a moral judgment on reporting and ultimately public access.
This country went through a long and troubled period of moral codes, which were used to block speakers or censor material that prevented atheists, feminists, and others from expressing their views in newspapers, books, and films. Indeed, there was a time when the Democratic Party opposed such moral codes in defense of free speech.
Those in search of freedom of speech often speak of language as if it were a swimming pool that needs to be monitored and carefully controlled for purity and safety. I see language more as a rolling ocean, dangerous but also majestic and inspiring, the immense size of which allows a natural balance. Freedom of speech makes it possible to openly challenge false ideas instead of forcing different points of view below the surface.
I don’t think today’s activists will be able to get the most watched cable news channel out of the air in 2020. On the other hand, I didn’t think that social media sites would ever censor viewpoints, given the immunity to content-neutral immunity.
About 70 years ago, Justice William O. Douglas accepted a prestigious award with a speech entitled “The One Un-American Act” on the Greatest Threat to a Free Nation. He warned that restricting free speech “is the most dangerous of all subversions. It is the only un-American act that could most easily defeat us. “The measures discussed in Congress can defeat us all. It is surprisingly easy to convince a free people to give up their freedoms, and it is extremely difficult to regain those freedoms once they are lost.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.