Congressional Speech Police

• Are members of Congress trying to establish a speech police?
• Can Congress legally request that satellite and cable providers why they carry certain media outlets?
• What should happen to the members who want certain news outlets de-platformed?

Did you hear about the representatives who pressured cable providers to stop hosting news outlets they don’t like? No, that isn’t the straight line to a joke, it’s real life. And if we aren’t careful, free speech in America that will become the joke.

 

I saw reports about two members of the House of Representatives, Anna Eshoo and Jerry McNerney, who sent letters to a dozen major cable and satellite providers, pressuring them to stop hosting news outlets they don’t like. The question Americans need to answer is, what do we do about it?

First Amendment

Right-wing media outlets, like Newsmax, One America News Network (OANN), and Fox News all aired misinformation about the November 2020 elections. For example, both Newsmax and OANN “ran incendiary reports” of false information following the elections and continue to support “an angry and dangerous subculture [that] will continue to operate semi-openly.” As a violent mob was breaching the doors of the Capitol, Newsmax’s coverage called the scene a “sort of a romantic idea.” Fox News, meanwhile, has spent years spewing misinformation about American politics.

Letter to AT&T from Representatives Eshoo & McNerney

Are these letters proposing a law? No. Do they threaten to make law? No. So what does the First Amendment have to do with this incident? Members of Congress are complaining about how certain news outlets covered recent stories, questioning the validity of the press to report items in a way they see fit. They are claiming the right to oversee, if not regulate, what products these cable and satellite providers can carry. While no threat is made, I have to wonder why would these representative write to these providers if they did not want them to do what Congress cannot legally do: Restrict the freedoms of speech and press for those outlets these Congressmen do not like.

Congress shall make no law… abridging the freedom of speech, or of the press;

U.S. Constitution, Amendment I

Congress cannot legally make a law abridging the freedom of the press, but does that mean that members of Congress, in their official capacity, can ask private companies to do so?

Fifth Amendment

Yet, to our knowledge, the cable, satellite, and over-the-top companies that disseminate these media outlets to American viewers have done nothing in response to the misinformation aired by these outlets. AT&T currently carries Fox News, Newsmax, and OANN on U-verse, DirecTV, and AT&T TV. As a company that serves 17 million Americans, AT&T plays a major role in the spread of dangerous misinformation that enabled the insurrection of January 6th and hinders our public health response to the current pandemic.

Letter to AT&T from Representatives Eshoo & McNerney

These members of Congress are attempting to intimidate these providers into giving up their liberty to provide the programming they desire. They are also threatening to deprive these news outlets of the property they have in their contracts with these cable and satellite providers. That is a clear violation of the Fifth Amendment.

No person shall… be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

If members of Congress cannot legally write a law to stop these cable and satellite providers from carrying the content they wish and if they cannot legally deprive these news outlets of their contracts with these providers, what do these representatives hope to gain by this letter?

Fourth Amendment

It is for these reasons we ask that you provide us with responses to the following questions about AT&T’s policies toward content carried on U-verse, DirecTV, and AT&T TV by March 8, 2021

Letter to AT&T from Representatives Eshoo & McNerney

These congressmen are asking for information they have no right to. Since the First Amendment prohibits Congress from making a law abridging freedom of the press, there is no legitimate congressional business to be done here. Therefore, they have no legitimate congressional need for this information, which makes this an unreasonable search.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Constitution, Amendment IV

What we have here is a government entity searching for information without a warrant. They have provided no legitimate probable cause, since the “expert” evidence they provide does not show the commission of a crime. They have shown no evidence of libel or defamation, except possibly by these members of Congress themselves. In short, these representatives are violating the Fourth Amendment’s protection against unreasonable searches. Furthermore, they are doing so only to certain news outlets, thereby violating the principle of equal protection under the law.

Conclusion

So what should be done about what is apparently an attempt to intimidate cable and satellite providers into dropping customers these members of Congress do not like?

First, the cable and satellite providers should refuse to comply with the request. Congress has no legitimate reason to have such information, and the providers should stand their ground and refuse to provide it. In fact, while the threat of interfering with their ability to do business is implied rather than overt, I would like to see these companies ask the FBI to investigate these members of Congress for violating 18 USC §1951:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 USC § 1951 – Interference with commerce by threats or violence

Second, every member of the House of Representatives who cares at all about liberty and their oath to support the Constitution, should demand an ethics investigation leading to at least censure and removal from committee assignments, if not expulsion from office. If the members of Congress will not hold their counterparts accountable for disorderly conduct and intimidation, then they all deserve to lose their jobs, period!

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

U.S. Constitution, Article I, Section 5, Clause 2

Lastly, the only way the other members of Congress will even consider filing ethics complaints against these members is if they hear from their Constituents, firmly and repeatedly. I have already contacted my representative via email. I plan to follow-up with phone calls and letters if I do not receive a satisfactory answer. What are you going to do?

As for those citizens of Northern California represented by these two, I ask you, are you happy with what they have done? These representatives are attempting to stifle free speech and freedom of the press, and they are doing so in your name and by your authority. You might as well have signed the letters yourself. So let me ask you, if two members of Congress started questioning the reporting of news outlets you like, what would you do?

It’s time the American people start treating their elected representative like the servants they are supposed to be. If you would fire a maid or a groundskeeper for using their position in your household to intimidate others, then you should certainly do so to your elected representatives. And if we will not hold our members of Congress accountable for their actions, then as James A. Garfield said, their ignorance, recklessness, and corruption are our fault.

Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature.

President James A. Garfield – Centennial Address