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First Amendment Experts Question One of the Jan. 6th Committee’s Recommendations on the ‘Role of the Media’

Lou Dobbs interviews Sidney Powell on Fox Business

Lou Dobbs interviews Sidney Powell on Fox Business on Dec. 10, 2020 (Screengrab of Fox News embedded in the federal lawsuit Khalil v. Fox, et. al.)

Toward the end of its massive 814-page report, the Jan. 6th Committee advised Congress to “evaluate” media companies’ role in “radicalizing their consumers.” First Amendment lawyers questioned that recommendation in interviews with Law&Crime.

The Committee has long emphasized that the path to the Jan. 6th attack on the U.S. Capitol was paved with former President Donald Trump’s false claims of election fraud that became known as “The Big Lie,” the name of the report’s first chapter. Several conservative and far-right news organizations have faced lawsuits, boycotts and recriminations for spreading those ideas.

Former federal prosecutor Mitchell Epner, who practices media law as a partner at Rottenberg Lipman Rich PC, says that these networks deserve criticism — but not a congressional inquiry.

“I believe that Fox News, OANN, Newsmax and Alex Jones have blood on their hands, morally but not criminally,” Epner told Law&Crime. “At the same time, I am very concerned about the recommendation that ‘committees of jurisdiction should continue to evaluate policies of media companies that have had the effect of radicalizing their consumers, including by provoking people to attack their own country.'”

That easily missed recommendation falls in a short paragraph within the report’s last 200 pages, under the bland subheading “Role of the Media.” This section blames both “legacy and social media” for contributing to the events of Jan. 6.

First Amendment lawyer Ken White, a legal analyst known by the nom de plume “Popehat,” found the committee’s phrasing in this recommendation measured enough not to inspire a lawsuit — but still one beyond the reach of Congress.

“It’s too vague to be actionable, but it’s part of a pattern of ambiguously threatening rhetoric from both parties against both traditional and social media,” White told Law&Crime. “In reality, the First Amendment permits Congress very little role in ‘evaluating’ the truth of coverage of public issues.”

State and federal courts have been hearing numerous cases weighing whether coverage promoting Trump’s election conspiracy theories were defamatory. Voting machine companies Dominion Voting Systems and Smartmatic sued Fox, Newsmax, One America News, and others, in cases that remain pending on multiple courts’ dockets. The networks have defended against those claims on First Amendment grounds.

The Committee made 11 recommendations in total — most of which drew praise from the same experts.

“I am in complete agreement with most of the recommendations,” Epner said. “The Electoral Reform Act should be law by the end of this weekend.”

That law aims to remove the legal fig leaf behind Trump urging his then-vice president Mike Pence to block the certification of Joe Biden’s victory. That objective rested on the false premise that the the Electoral Count Act of 1887 gave Pence that unilateral power.

To clarify the law further, the Committee endorsed the passage of the Electoral Reform Act to reaffirm that the vice president has “no authority or discretion to reject an official electoral slate submitted by the Governor of a state.”

The Committee also asked for “Accountability” from the Department of Justice, in the form of criminally prosecuting Trump and his associates; and bar associations, in disciplining election-denying lawyers who may have broken ethical rules. The panel also weighed the challenges of enforcing the 14th Amendment’s disqualification clause, which bars public office holders from having “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Though most of those efforts failed, a New Mexico judge removed “Cowboys for Trump” founder Couy Griffin from the state’s county commissioners, citing his conviction for entering the Capitol on Jan. 6.

One of the Committee’s members — Rep. Jamie Raskin (D-Md.), a constitutional law professor — introduced a bill to “declare the January 6 assault an insurrection” and “establish specific procedures and standards for disqualification,” in cases that would be heard inside a federal court in Washington, D.C.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."