English essayist Samuel Johnson wrote, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” I thought of his words as I appeared before a House committee exploring limitations on free speech, including the effort by some Democrats and activists to remove networks like Fox News from all cable carriers. As someone who came over to Fox News as a legal analyst, the hearing focused my mind “wonderfully” on the future of free speech and the press.
Free speech in the United States these days is becoming described as a danger that needs to be controlled as opposed to a traditional value that defines this country as a democracy. Though I am seen as a free speech purist by many, I hold what once was a mainstream view of free speech. I believe that free speech is the best protection from bad speech. Such a view is under fire and may even be a minority view today.
But history has shown that censorship does not produce better speech. It only produces more censorship and more controlled speech. There is no doubt we face a torrent of false and extreme speech on social media and other forums. This speech is not without cost as it fuels people filled with hatred, victimizes the gullible, and alienates the marginal.
The Constitution was written for times like these during times like these. Politics has always been something of a blood sport. Early in our country, the Republicans and the Federalists were not really trying to “cancel” one another in the modern sense. Politicians were seeking to kill each other in the actual sense with measures such as the Alien and Sedition Acts. There were also false conspiracy theories about alliances with Britain and other foreign powers as newspapers were biased and partisan.
Members of Congress are now pushing for censorship on the internet and other forums. They are joined by an alliance with academics and activists calling for everything from incarceration to blacklists. One article that ran in The Atlantic by two law professors, Jack Goldsmith and Andrew Keane Woods, argued for internet censorship. They said, “In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong.”
Much of the effort by lawmakers and activists is directed at using private technology firms to bar certain perspectives and achieve indirectly what cannot be achieved directly in curtailing our free speech. Congress could never engage in this kind of content discrimination between news outlets with the First Amendment. But it can use its influence on private firms to limit free speech. The move makes obvious sense if the desire is to shape opinion. Controlled speech on certain platforms will do nothing if citizens can still hear opposing ideas from other news sources. You must not only shape the narrative but also eliminate the alternatives to it.
The latest effort came this week as some members of Congress tried to pressure cable carriers to reconsider whether people should be allowed to watch Fox News and other networks. In a letter to cable carriers, House Democrats Anna Eshoo and Jerry McNerney appeared to mirror calls from activists to drop such networks from their lineups. The lawmakers clearly stressed that not all “news sources are the same” and called on the firms to account for this role in allowing a dissemination of ideas.
The letter targeted the networks that the members and their constituents do not likely watch with the list of every major television channel seen as conservative leaning. If the cable carriers were to yield to such pressure, there would be no major television outlet offering a substantial alternative to the coverage of more liberal networks. Tens of millions of people could be forced to watch those channels or watch nothing at all. The limitation or elimination of the conservative networks will work to the advantage of Democrats, a major conflict of interest laid bare with the demand and the inclusion of only the networks with conservative audiences.
Democrats want cable carriers to show criteria for giving tens of millions of people access to Fox News and other networks. The answer starts with the principles of free speech and the press, which were not even cited in the letter. Instead, the companies are asked if they will impose a morality code on news coverage and public access. This country had its troubling period of morality tests that were used to bar speakers or censor material that prohibited atheists, feminists, and others from telling ideas in books, movies, and newspapers. Indeed, there was a time when the Democrats fought such morality judgments in defense of free speech.
Those seeking limits often talk about speech like it is a pool that must be monitored and controlled for purity and safety. I view speech more as the rolling ocean, perilous but also majestic and inspiring, with the immense size bringing on the greater natural balance. Free speech lets false ideas be challenged instead of forcing dissent under the surface.
I do not believe the activists today will succeed with removing the most watched cable news channel in 2020 from the airways. But I also did not think social media sites, given legal immunity with the goal to be neutral on content, would ever censor the ideas of its own users. The measures debated in Congress have the potential to defeat us all. It is surprisingly easy to convince people to give up on their freedoms and increasingly difficult to regain those freedoms once they become lost.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.