Lou Dobbs interviews Sidney Powell about Fox Business on December 10, 2020 (Fox News screengrab embedded in federal lawsuit Khalil v. Fox, et al.)
Towards the end of its lengthy 814-page report, the Jan. 6 committee advised Congress to “evaluate” the role of media companies in “radicalizing their consumers.” First Amendment attorneys questioned that recommendation in interviews with Law&Crime.
The committee has long stressed that the road to the January 6 attack on the US Capitol was paved with the former president Donald Trump’s false allegations of voter fraud that became known as “The Big Lie,” as the first chapter of the report is called. Several conservative and far-right news organizations have faced court cases, boycotts and allegations for spreading these ideas.
Former federal prosecutor Mitchell Epnerwho practices media law as a partner at Rottenberg Lipman Rich PC, says these networks deserve criticism — but not a congressional investigation.
“I believe that Fox News, OANN, Newsmax and Alex Jones Having blood on their hands, moral but not criminal,” Epner told Law&Crime. “At the same time, I am deeply concerned by the recommendation that “judicial committees should continue to assess media outlets’ policies that have led to the radicalization of their consumers, including provoking people to attack their own country.”
This easily overlooked recommendation is found in a short paragraph in the last 200 pages of the report under the bland subheading “Role of the media”. This section blames both “old media and social media” for contributing to the January 6 events.
First Amendment Attorney Ken Whitea well-known legal analyst pseudonym “Popehat,” the committee found the wording in that recommendation appropriate enough not to encourage a lawsuit — but still one that is beyond the reach of Congress.
“It’s too vague to be enforceable, but it’s part of a pattern of ambiguous threatening rhetoric by both parties against traditional and social media,” White told Law&Crime. “In reality, the First Amendment allows Congress very little role in ‘evaluating’ the truth of reporting on public affairs.”
State and federal courts have heard numerous cases weighing whether coverage of Trump’s election conspiracy theories was libelous. Voting machine companies Dominion Voting Systems and Smartmatic are suing Fox, Newsmax, One America News and others in cases pending in multiple courts. The networks have defended themselves against these claims on First Amendment grounds.
The committee made a total of 11 recommendations, most of which were commended by the same experts.
“I totally agree with most of the recommendations,” said Epner. “The Electoral Reform Act should go into effect by the end of this weekend.”
This legislation aims to remove the legal fig leaf behind Trump pushing his then-vice president Mike Pence to block the certification Joe Bidens Victory. This aim was based on the false premise that the Electoral Counts Act 1887 gave this unilateral power to Pence.
To further clarify the law, the committee approved passage of the Electoral Reform Act to affirm that the vice president has “no authority or discretion to reject an official electoral list submitted by a state governor.”
The committee also called for “accountability” from the Justice Department in the form of prosecuting Trump and his associates; and bar associations in disciplining non-election attorneys who may have violated ethical rules. The panel also weighed the challenges of enforcing the Fourteenth Amendment’s disqualification clause, which prohibits public office holders from “participating in insurrection or rebellion against the same, or giving aid or consolation to the enemies thereof.”
Though most of those efforts failed, a New Mexico judge removed the founder of Cowboys for Trump. Couy Griffin by the state’s district commissioners, citing his Jan. 6 Capitol trespassing conviction.
One of the members of the committee – Rep. Jamie Raskin (D-Md.), a professor of constitutional law — introduced a bill to “declare the Jan. 6 attack a riot” and “establish special procedures and standards for disqualification” in cases before a federal court in Washington, DC would be negotiated
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