As some in Congress try to rein in disinformation they believe is "fanning the flames of extremism" that led to the Jan. 6 Capitol riot, Rep. Cathy McMorris Rodgers and other Republicans contend it's really an attempt to silence conservative voices.
McMorris Rodgers helped lead GOP criticism of members of the House Commerce and Energy Committee this week for sending a letter to AT&T asking why the company carries news networks that continue to report the 2020 presidential election was stolen after experts have found no evidence of widespread voter fraud, and dozens of courts have rejected legal challenges to the different states' results.
"Our country's public discourse is plagued by misinformation, disinformation, conspiracy theories, and lies," Reps. Anna Eshoo and Jerry McNerney wrote in the letter to AT&T CEO John Stankey. The company carries Fox News, One America News network and Newsmax on platforms it owns, including DirecTV.
News coverage that focuses on those items helped radicalize people who stormed the Capitol on Jan. 6 and makes it hard to generate the public trust necessary to fight the COVID 19 pandemic, they said.
"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?" they asked in the letter. "Are you planning to continue carrying Fox News, Newsmax and OANN..both now and beyond any contract renewal?"
At a communications and technology subcommittee hearing titled "Disinformation and Extremism in the Media" the day after the letter was released, Eshoo, from California, argued the Capitol riot was "built on a foundation of lies" and asked when Congress should step in to protect public health and democracy itself.
But McMorris Rodgers, who serves as the top Republican on the committee, accused the Democrats of mounting a censorship campaign based on political ideology. They aren't objecting to reports of misinformation by New York Gov. Andrew Cuomo for his state's response to COVID-19, she said, or hyper-partisan coverage of the investigation into reports of Russian collusion in the 2016 election not supported by the Mueller report.
"I've never heard a more obvious direct attack on the First Amendment," McMorris said during the hearing that lasted more than three hours.
Rep. Frank Palone, a New Jersey Democrat, said all committee members are "staunch defenders" of the First Amendment. "That doesn't mean we should ignore the spread of disinformation that causes public harm," he added.
Stopping disinformation without infringing on free press and free speech would be a delicate balance , said Agnieszka McPeak, an associate dean at Gonzaga University Law School who teaches a course on privacy, technology and the First Amendment. Social media has "democratized" news by creating a public forum in our private spaces.
"The First Amendment really does kick in any time we are trying to curtail speech," McPeak said in an interview Friday. "These companies can't be forced to carry or not carry speech, up to certain boundaries."
An individual's right to free expression has limits, including civil action for defamation and libel, McPeak said. But under current federal law, when a platform like Facebook allows a person to post something that is slanderous or libelous, that platform is immune. And with a billion users worldwide, Facebook can monitor and delete some, but not all, problem posts.
A recent study by New York University said there is "no reliable evidence" to support a claim of conservative bias on social media platforms. "No trustworthy large scale studies have determined that conservative content is being removed for ideological reasons or that searches are being manipulated to favor liberal interests," the study said.
A panel of experts called by the committee also suggested a law limiting disinformation could be difficult. Previous efforts, going all the way back to the beginning of the republic, have failed, said Jonathan Turley, an expert in First Amendment and media law at George Washington University.
"Disinformation is a scourge, but it is not a new scourge," he said.
European efforts to curtail disinformation haven't reduced hate speech, he added, they've just reduced free speech by making some people afraid to speak or publish.
The Fairness Doctrine, which required television stations to present conflicting views on controversial topics, only worked when there were a limited number of broadcast outlets, Turley said.
"The greatest protection against bad speech is more speech," he said. "Who will be the arbiter of truth?"
Soledad O'Brien, a longtime television reporter and anchor, said at the hearing the nation is experiencing "truth decay" as local newspapers, the traditional source of reliable local news, continue to close and people get their news primarily from cable networks that build their programming, particularly in primetime, as "a slugfest to draw ratings."
Rather than Congress regulating news networks, the networks themselves should take steps to rebuild the nation's confidence in journalism. Her first suggestion: "Don't book liars. Stop presenting every story as having two sides. Lies don't have a side," O'Brien said. "You don't have to book a neo-Nazi every time you book someone who's Jewish."
The committee had no pending legislation it was considering for the hearing. It plans to call social media executives for another hearing in March.