A key House committee begins its inquiry into misinformation, which implicates Section 230 legal protections.
One House committee picked up its inquiry into lies, misinformation, disinformation, extremism, terrorism, and online media. The House Energy and Commerce Committee’s Communications and Technology Subcommittee held a hearing titled “Fanning the Flames: Disinformation and Extremism in the Media” with witnesses from the policy realm. The committee will hear from the major social media platforms on 25 March who will be testifying on misinformation and disinformation. Moreover, given the interest among Democrats and Republicans, this will undoubtedly not be the last hearing the committee holds on this issue. The bigger question is whether the Democratic majority will be able to fashion legislation to reform 47 USC 230 (Section 230) or establish other means to combat misinformation, disinformation, and lies. Republicans tend to focus on the problems arising from a supposed bias online against conservatives (never proven and frequently disproven[1]). In short, the likelihood of agreeing on legislation to address the ills of the online world and how they affect the real world are very low.
Chair Frank Pallone Jr (D-NJ) pushed back on the narrative that the hearing and Democrats were part of a plan to impinge First Amendment rights, a frequently made claim by Republicans. He asserted that while Congress cannot pass laws that “inappropriately limit speech,” pointing to Supreme Court rulings that allow some regulation of free speech rights, he claimed Congress need not sit idly by while misinformation causes public harm. Pallone asserted this inquiry will pose questions that may be uncomfortable to some stakeholders. For example, he suggested social media platforms may be profiting off of extreme and conspiratorial content. Pallone also pointed the finger at “traditional media outlets” which he accused of spreading misinformation and disinformation. Pallone said the 6 January insurrection and the death toll of COVID-19 in the United States (U.S.) can both be traced in large part to online disinformation, which has often been amplified by traditional media.
Ranking Member Cathy McMorris Rodgers (R-WA) argued the hearing is a “direct attack on the First Amendment.” She contended that condemning the “January 6th attack” and upholding truth and facts are shared bipartisan goals. McMorris Rodgers characterized the motives of the Democratic majority as being contrary to these shared values in scheduling “a hyper-partisan hearing to shame and blame.” She claimed if Democrats did not want this, they would not have sent “letters pressuring companies to block conservative media outlets.” McMorris Rodgers asserted all media and defenders of the First Amendment should be concerned about the hearing. She then made the rather interesting argument that public officials using their platform to pressure media outlets is reminiscent of the People’s Republic of China, a claim that seemingly omits the pressure social media companies have faced in public hearings over the last few years from Republicans[2] to say nothing of the reporting showing companies like Facebook have bent over backwards not to punish conservative figures and content when they have violated terms of service[3]. Nonetheless, she alluded to Justice Oliver Wendell Holmes’ argument that the best way to manage bad speech was to best it with better speech.
McMorris Rodgers decried an alleged Democratic “censorship campaign[4] over the news they disagree with” and called on Pallone and others to denounce it. She argued if this campaign were to succeed, the “liberal media” would cease to exist. She then went on to make the novel case that under this standard CNN could be punished for televising New York Governor Andrew Cuomo’s press conferences during the pandemic now that an alleged coverup of neglect and disregard of nursing homes has come to light. McMorris Rodgers said the same of MSNBC “of pushing the false “Russia collusion” narrative,” which other journalists proved was “false.” McMorris Rodgers then went on to touch the other talking points of the right regarding “woke culture,” “cancel culture,” and liberal social hegemony over the United States that is oppressing those not in agreement.
Subcommittee Chair Mike Doyle (D-PA) largely echoed Pallone’s opening statement and asserted:
- Partisanship and polarization in the media has been building for years, but these more recent events reflect a frightening escalation.
- These changes have given rise to national media entities that are more focused on the kind of tactics we see from social media companies – they engage their viewers by enraging them and further dividing us – and our nation.
- We’ve also seen the rise of news as entertainment – where the claims of anchors and commentators are likened to performance art. When they are challenged in court, the lawyers from their own networks even claim that no reasonable person could believe these people are speaking the truth or reporting facts.
- When truth becomes a commodity – to be traded upon for profit – and facts and consequences don’t matter to those who report them, our democracy is undermined. It is the responsibility of this Subcommittee to hold these institutions to a higher standard.
Subcommittee Ranking Member Bob Latta (R-OH) echoed McMorris Rodgers in asserting the hearing was not bipartisan and referenced the letter Representatives Anna Eshoo (D-CA) and Jerry McNerney sent to 12 cable companies and platforms[5]. Latta claimed “the Majority’s intent behind today’s hearing is to fan the flames of silencing certain viewpoints in America by trying to suppress and censor speech, a concept that has the potential to destroy our Democracy.” He went on to argue Democrats are somehow claiming the 6 January “attacks” are the fault of the media and not the people who stormed the Capitol seeking to stop the certification of the Electoral College results. Latta argued Democrats have thrown away bipartisan progress in the last Congress on the issues raised by the hearing because “they disdain President Trump.” He stated “I cannot imagine any legislative remedy that would not implicate the First Amendment,” hinting any legislation would be found in violation of the U.S. Constitution.
Matter of Fact Anchor Soledad O’Brien called out her former employer, CNN, for enabling Lou Dobbs for legitimizing his 2005 lie about leprosy numbers to smear illegal immigrants “which emboldened Dobbs and so many other racist provocateurs while sidelining critical reporting.” She further asserted “[m]edia disguised as journalism has been spreading lies for years, elevating liars, and using the ensuing slugfest to chase ratings, hits, subscriptions and advertisers.” O’Brien lamented the demise of facts and local media in the U.S. and deemed television media, especially cable channels, has become “a place where facts go to die.” Nonetheless, she argued:
Congress can’t, and shouldn’t, regulate journalism in defiance of the First Amendment. It’s enough that Congress underfunds and politicizes public media even as it strives to bring basic news to scores of communities big and small. What Congress can do is shed light on how irresponsible media contributes to disinformation in ways that have consequences for democracy.
Consequently, she called on the media to amend its ways and identified a number of steps the media could take:
- Don’t book liars or advance lies. Sure, cover the fact that lies and propaganda are being disseminated but don’t book people to lie on your show because it elevates them and presents them as another “side.”
- Get out of the office and interview people all over the country of all different backgrounds. Cable TV, in particular, infuriates Americans with elitist and tone-deaf coverage that often ignores the plight of regular people.
- Stop posing every story as having two sides when some stories have many sides and are more complicated. Take the time to unravel and report and give history and context.
- Every perspective doesn’t deserve a platform. Media thrives on the open exchange of ideas but that doesn’t mean you have to book a Neo-Nazi every time you book someone who is Jewish. Balance does not mean giving voice to liars, bigots and kooks.
- Stop saying you want a diverse staff and go hire one — fast. A diversity of staff is not just fair, but it helps you reach into different communities and tell an accurate story of America. The public will trust you again if you tell the truth of who lives in this country and report accurately on communities.
- Make sure that reporting and anchoring staff adheres to professional standards by consistently speaking in a fair, accurate and balanced reportorial voice that is absent opinion. People who traffic in opinion should do only that and be labeled as that.
- Recognize that objectivity means having an open mind, not a lack of judgment. If you don’t call a lie a lie or racism, racism, you empower the liar or the racist.
- Reject the majority rule mentality in journalism. Just because a lot of people believe something doesn’t make it real, true or reasonable.
- Support efforts to challenge media who disseminate misinformation, particularly in vulnerable communities. Answering hard questions just makes us stronger.
Columbia University’s Tow Center for Digital Media Director Emily Bell stated:
- For the past 25 years, the broadcast and print industries have been disrupted by the rise of new platforms which democratized the distribution, circulation and monetization of media. The gatekeeping function of broadcast and print media has gone, and shifted to the aggregation and search platforms of companies such as Facebook, Twitter and Google. Two players, Google and Facebook, now dominate a digital advertising market which was once the key support mechanism for funding free news media. Whilst news media companies have benefited from digital in terms of audience growth, the disruption to the advertising model particularly for non broadcast media has had an enormous impact.
- A forty year path of deregulation has transformed the US media landscape in both economic and political terms. The abandonment of the Fairness Doctrine in 1987 paved the way for the late Rush Limbaugh and other opinionated broadcasters to address audiences on matters of political sensitivity and public interest without an obligation to provide contrasting views or context, and the establishment of Fox News in 1996 brought similar sensibilities to cable news. The Telecommunications Act of 1996, including the Communications Decency Act, and more recently the 2017 roll back of rules restricting cross-media ownership and physical presence in local media markets by the Federal Communications Commission are all significant liberalizing measures. However, these changes also mean that the content produced and carried by powerful media entities – old and new – is unfettered of obligations towards fairness or even truth.
- It is impossible to know precisely what actions might have mitigated or avoided the shocking events of 2020 and 2021. A president who regularly denigrated the press has undermined trust in all but the most loyal outlets. The commercial success of Fox News, Sinclair Broadcasting, OANN and NewsMax serves to remind us there are few penalties for deploying misinformation. The markets and technologies that enabled the seamless manufacture of vast amounts of misinformation are the outcome of editorial, product and policy decisions. We are at the end of a forty-year arc of deregulation during which the environment has optimized for growth and innovation rather than for civic cohesion and inclusion.
- There is an opportunity for America to identify and act on the priorities that are already known to work against extremism and disengagement. Finding the means to fund and sustain more independent local reporting is a burning priority. The gap between abundant polarizing national coverage and scarce local accountability journalism is widening. Civic journalism representative of the communities it serves, could be established and strengthened through a reform agenda which takes the information needs of communities seriously. This should not be a luxury but a right.
Marked by COVID Co-Founder Kristin Danielle Urquiza discussed how her father’s consumption of and belief in Fox News’ misinformation about COVID-19 was a direct cause of his death at 65.
George Washington University Law School Jonathan Turley stated:
As will come as no surprise to those familiar with my prior writings, I maintain what was once a mainstream view of free speech. I believe that free speech is the greatest protection against bad speech. That view is admittedly under fire and indeed may be a minority view today, but history has shown that public or private censorship does not produce better speech. It is a self-replicating and self-perpetuating path that only produces more censorship and more controlled speech. I encourage you (indeed I implore you) not to proceed down that slippery slope toward censorship.
Turley added:
- The election coverage is a good example of how free speech offers its own protections. Many of us countered claims of systemic electoral fraud in covering the election challenges. While some individuals remain unconvinced, many more would still harbor doubts if Big Tech or Congress had succeeded in silencing those raising such questions. Instead, viewers could hear opposing views on channels like Fox with experts who overwhelmingly noted that no compelling evidence had been presented in court. Those conclusions were more compelling because they came from analysts and reporters who were open to reviewing such evidence while stressing that it had not been produced. It is the difference between a process geared toward reaching conclusions and a process of dictating conclusions. However, this process requires trust. A free and open forum for communication was the original and perfect design for the Internet. And here, once again, the Constitution could offer the clarity of that original meaning to limit the detail to the perfect. To paraphrase the First Amendment, Twitter and carriers can hold to a simple static, “originalist” position: It should “make no policy abridging the freedom of speech or the press.”
- Rather than seek to silence others (or whole networks), there is an alternative way to combat bad speech. Congress should focus on publishing data and information that supports citizens in reaching their own conclusions. I am not speaking of processed or conclusory reports, but objective material for citizens to consider. There is a palpable mistrust of Congress and the media in framing information. That can be addressed through greater transparency and access to information.
- I admit that I may be a relic in my views, but I continue to believe that the greatest protection against bad speech is better speech. I sometimes tell my students that free speech often metaphorically divides those who prefer oceans to swimming pools. Those seeking limits often speak of free speech like it is a swimming pool that must be monitored and carefully controlled for purity and safety. I view it as more of a rolling ocean. It is indeed dangerous, but it is also majestic and inspiring. It’s immense size also allows for a natural balance. Free speech allows false ideas to be challenged in the open rather than driving dissenting viewpoints beneath the surface. However, free speech, like other constitutional values, requires a leap of faith. Faith, not only in free speech, but in ourselves. Citizens are capable of educating and informing themselves. They do not need politicians or corporate filters to protect them from speech deemed misleading, false or inciting. History has shown that the far greater danger is found, not in these individual speakers, but the empowered censors in a system of speech control.
© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.
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[1] For example, these data from CrowdTangle show the top links on Facebook on 1 March being from conservatives. Of course, Facebook is not the end all, be all of social media (sorry, Mark Zuckerberg), but this would evidence contrary to this by now article of faith on the right.
[2] For example, this 2017 letter entered into the hearing record from Representative Anna Eshoo (D-CA) to the Federal Communications Commission (FCC) urging it not to heed then President Donald Trump’s tweet to challenge and revoke NBC’s broadcasting license. Of course, this is not a Republican Member, and some may quibble by saying this was a tweet and not an official platform. Well, judging by many conservatives’ reaction to Twitter permanently banning Trump in January, one got the impression they very much think Twitter is a vital part of any politician’s means of communicating and shaping policy. Moreover, then FCC Chair Ajit Pai went out of his way at a public event to reaffirm the FCC’s commitment to the First Amendment, a not very subtle means of pushing back on Trump’s tweet. Moreover, a search of McMorris Rodgers’ press releases turned up no statement on this incident or the many others in which Trump seemed to do the very thing she is claiming Democrats are doing.
[3] ““Mark Changed The Rules”: How Facebook Went Easy On Alex Jones And Other Right-Wing Figures” By Ryan Mac and Craig Silverman — BuzzFeed News. Another disquieting view into Facebook from BuzzFeed News. The reporters draw a straight line from CEO Mark Zuckerberg softening a ban on Alex Jones-related content to the insurrection on 6 January 2021. Moreover, as has been reported many times, Vice President Joel Kaplan’s influence has consistently made the platform much more lenient on conservative figures and content, including many extremists. And this is not the first article based on sources inside Facebook accusing Kaplan (a former George W. Bush White House staffer) of bending the rules for conservative figures and outlets.
[4] Apparently, she is referring to this 22 February 2021 letter sent by Representatives Anna Eshoo (D-CA) and Jerry McNerney (D-CA) to AT&T, Verizon, Roku, Amazon, Apple, Comcast, Charter, Dish, Cox, Altice, Alphabet, and Hulu. Eshoo and McNerney “urging them to combat the spread of misinformation and requesting more information about their actions to address misinformation, disinformation, conspiracy theories, and lies spread through channels they host.”
[5] See previous footnote.
Michael Kans 