“The First Amendment, my friends, starts with four words: Congress shall make no laws,” explained Representative Anna Eshoo (D-CA), as if the rules as written have ever mattered to the American left. So what brought about this sudden and miraculously strict – if slightly incorrect – understanding and defense of the Bill of Rights? Well, she needs it to cover her own rear, of course.
Reps. Eshoo and Jerry McNerney (D-CA) sent a letter – on Congressional letterhead and signed specifically as members of Congress – accusing conservative news outlets of misinformation and asking a dozen television providers what they plan to do about it. Are they truly blind to the First Amendment concern here, or did they simply hope no one would take notice?
Garbage in, Garbage out
The letter clearly pushes the narrative that conservatives are misinformed and that certain outlets maliciously spewed fake news. To which bastions of unbiased truth and journalistic integrity do the members of Congress turn? Amongst the list of sources in the endnotes is USA Today, Vox, Slate, CNN, and HBO’s Last Week Tonight with John Oliver. Yes, John Oliver, the British comedian. His contribution to the letter was that “the kind of misinformation [OANN] is spewing right now could end up getting people killed.”
“Some purported news outlets have long been misinformation rumor mills and conspiracy theory hotbeds that produce content that leads to real harm,” the letter explains. What evidence supports this? According to the corresponding endnote, they base this on an analysis from USA Today calling election-fraud claims “baseless” and a 2016 Vox article blaming Trump’s election on fake news. Yes, that’s right; one article suggests Trump’s was a fraudulent win while the other says any concern Biden won by fraud is baseless.
But, like most related stories from the leftist press, the esteemed members of Congress take it a step farther by explicitly stating that conservative “fake news” led to the Jan. 6 riot at the Capitol. According to the opening lines of the letter:
“Our country’s public discourse is plagued by misinformation, disinformation, conspiracy theories, and lies. These phenomena undergird the radicalization of seditious individuals who committed acts of insurrection on January 6th, and it contributes to a growing distrust of public health measures necessary to crush the pandemic.”
According to the line preceding endnote #5, “Right-wing media outlets, like Newsmax, One America News Network (OANN), and Fox News all aired misinformation about the November 2020 elections.” Who do the representatives want people to trust that this statement is true? Why, Vox, of course.
The Best Defense Is … Hypocrisy and Error?
While on the topic of flawed presuppositions, how about a look at Rep. Eshoo’s understanding of the First Amendment? “The First Amendment, my friends, starts with four words: Congress shall make no laws,” she explained.
Well, yes, but no.
“Congress shall make no laws” is five words – and the last word isn’t even correct. Talk about an unfortunate slip after saying that “it’s always worthwhile to listen, and listen well,” and that “we have a lot of misinformation going on right in the middle of this hearing.” Just to be clear, here’s the First Amendment, in full:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Now about using a strict reading of “Congress shall make no law” as a defense here: Democrats don’t care about the letter of the law unless it benefits them to do so. Does that sound like a partisan claim? It isn’t. Here are just a few examples of when those five words didn’t matter:
- Democrats supported the right to protest – even to the extent of calling violent riots “mostly peaceful protests” – and tried to stop local and state governments (which aren’t Congress) from policing the riots.
- Democrats argued that protesting the National Anthem is protected political speech – and lambasted sports teams and leagues (which aren’t Congress) for forbidding such protest.
- Democrats – including these two – are perfectly willing to let Congress make a law “respecting the establishment of religion, or prohibiting the free exercise thereof.” The Equality Act, which these two co-sponsored, would explicitly end religious organizations’ right to refuse to hire LGBTQ employees, including ministers, despite multiple scriptural restrictions, including the requirement that a church leader be “the husband of one wife” (1 Timothy, 3:2). This prohibits “the free exercise thereof.”
This isn’t to say that Republicans never contravene the Constitution – only that it’s hypocritical to ignore the founding documents until hiding behind them becomes politically expedient. Of course, hypocrisy or not, the First Amendment has long been interpreted by the Supreme Court as applying to all parts of government – federal, state, or local – not just the U.S. Congress.
While the letters don’t technically represent Congressional action requiring the recipients to drop certain networks, the authors’ authority to make such demands is certainly implied – and intentionally so. Did Reps. Eshoo and McNerney accidentally send these letters out with “Congress of the United States Washington, DC 20515” at the top? Did they unintentionally sign their names above the printed “Anna G. Eshoo Member of Congress” and “Jerry McNerney Member of Congress”? Of course not.
It is exactly for this reason that the DoD restricts even retired soldiers from engaging in certain types of political activity, in or out of uniform, lest their “political activities imply or appear to imply official sponsorship, approval, or endorsement.” Do these letters, sent on official congressional letterhead, not imply that the sense of Congress is that these outlets should be forced off the air?
Perhaps these representatives didn’t violate the First Amendment – but it’s fair to say it sure looks like they tried.
Read more from James Fite.