Like many of their fellow Americans, Reps. Anna G. Eshoo and Jerry McNerney are outraged at the disinformation that has piled up on programs from Fox News, One America News and Newsmax. “Some purported news outlets have long been misinformation rumor mills and conspiracy theory hotbeds that produce content that leads to real harm,” the two California Democrats argued in a Feb. 22 letter. “Misinformation on TV has led to our current polluted information environment that radicalizes individuals to commit seditious acts and rejects public health best practices, among other issues in our public discourse.”

All three outlets, charge the Democrats, aired “misinformation” about the November 2020 presidential election, as well as bogus reports about coronavirus.

There’s an ample public record to back up those claims. But what’s the solution? Fox News, to pick the most powerful of the organs cited by Eshoo and McNerney, has a long history of resisting pressure to produce factual news reports. Peeling away advertisers has failed to effect change because the network gets so much cash from cable subscriber fees, while its so-called “straight news” journalists have failed to hold management to account for the product. The company appears only to profit from distorting the news.

What to do, then? Well, Eshoo and McNerney are targeting the folks who provide a platform to Fox News et al. Their letter went to Comcast, AT&T, Verizon, Charter Communications, Apple, Amazon, Dish Network, Cox Communications, Roku, Altice USA, Hulu and Alphabet (the parent company of YouTube TV). It poses an array of questions to the carriers, including:

  • What “moral or ethical principles” figure into carrying channels “or when to take adverse actions” against them?
  • Did they take any action against OAN, Newsmax or Fox News based on their coverage of the November elections, the Jan. 6 Capitol riot or the coronavirus pandemic?
  • And do they plan to continue carrying the three networks “both now and beyond any contract renewal date? If so, why?”

Clarity on such matters would fill an information void. Angelo Carusone, president of Media Matters for America, says cable carriage contracts with Fox News et al. are “intentionally opaque” and that the network has relied on subscriber revenue to cushion itself against advertising desertions stemming from its hateful programming. “Fox and the Murdochs have always played extraordinarily hard during these negotiations,” says Carusone.

Fox News issued this statement on the Eshoo-McNerney letter: “As the most watched cable news channel throughout 2020, Fox News Media provided millions of Americans with in-depth reporting, breaking news coverage and clear opinion. For individual members of Congress to highlight political speech they do not like and demand cable distributors engage in viewpoint discrimination sets a terrible precedent.”

“Viewpoint discrimination” is widely used term to describe anti-First Amendment activity. But what’s a “viewpoint,” precisely? Was Fox News host Sean Hannity expressing a viewpoint when he engaged in a multiweek disinformation campaign about the November election? Was Fox News’s promotion of hydroxychloroquine as a covid-19 treatment a viewpoint? So, yeah: We understand the motivations behind the Eshoo-McNerney letter.

“My own opinion is that we are in a moment where it’s warranted because the consequences have been serious enough,” says Ellen P. Goodman, a law professor at Rutgers University, referring to the questions posed to the carriers. “Some of the speech that is on these cable channels — to the extent it was related to the Jan. 6 insurrection — some of it might be getting close to incitement, to things that aren’t protected by the First Amendment.”

The insertion of Congress into the contractual relationships of video providers with particular news/propaganda outlets, however, is frightening. Asking questions is a protected activity, of course — one that lawmakers use all the time. Yet these questions feel a lot like coercion by government officials, an incursion into the cultural promise of the First Amendment. Eshoo and McNerney’s letter hints that, unless the carriers proactively justify keeping OAN, Newsmax, Fox News and the like, the signatories would like to see them de-platformed right away.

In a Wednesday hearing of the House subcommittee on communications and technology, Eshoo answered critics who cited First Amendment issues with the letter. “We have a lot of misinformation going on right in the middle of this hearing,” said Eshoo, noting that she and McNerney were merely asking questions of the companies. “Those of you who may not have read the letter, I suggest that you do.”

If these lawmakers want to denounce Fox News, go for it. If they want to encourage their constituents to steer their cable money away from Fox News et al., even better. If they want to call on Fox News figures like Bret Baier and Chris Wallace to denounce the bile flowing from the so-called “opinion” shows, glorious.

The solution to the Fox News problem, though, won’t be coming from congressional letterhead. If Eshoo and McNerney want to hand the network a delicious issue to grow its audience, they’ll keep the meddlesome inquiries coming.

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