Rep. Summer Lee’s Curious View of Free Speech – JONATHAN TURLEY

Rep. Summer Lee (D., Pa.) has long been a voice for censorship, attacking those who seek to restore free speech on social media. Lee’s curious view of free speech was on display this week when she attacked witnesses, including Riley Gaines, as hateful and transphobic but then tried to censor Gaines when she responded to Lee’s attack as misogynistic. Lee withdrew the demand, though it captured the essence of how many on the left insist that they have a right to attack others but seek to censor those same individuals when they respond in kind.

In the hearing on transgender students competing in sports, Rep. Lee launched into attacks of the witnesses: “Madam Chair, I ask that while we sit through this hearing and the hateful misinformation I’m sure is coming our way, let us not forget the children at the core of this issue.”

Gaines, who achieved fame as a college athlete after racing against transgender swimmer Lia Thomas, responded to the attack. She testified:

“Of course, there is a place for everyone, regardless of gender identity, regardless of sexual orientation, regardless of race or what sports you play. There’s a place for everyone to play sports in this country. But unsafe, unfair and discriminatory practices towards women must stop. Inclusion cannot be prioritized over safety and fairness, and ranking member Lee, if my testimony makes me transphobic then I believe your opening monologue makes you a misogynist.”

Lee then pounced and demanded that Gaines’ remarks be struck for “engaging in personalities” rather than the substance of the debate: “I move to have the gentlewoman’s words taken down.”

What followed was hurried consultation and presumably a few explanation for Lee on why witnesses are allowed to respond to such attacks by a member. Lee then withdrew her demand.

Rule XVII, clause 1(b) prohibits Members from engaging in “personalities.” That is a rule cited to the Speaker or chair to bar personal attacks from other members that are deemed unparliamentary. There is no definition of what words are considered to be violative of the rule.

However, Lee was attempting to use this against a witness who was defending herself against her own personal attack. It is a dangerous extension. Members of Congress generally are protected under the “speech or debate” clause in Article I, Section 6, of the Constitution. The privilege protects legislative proceedings and generally does not apply to news releases, speeches and other public comments. This was the holding in Hutchinson v. Proxmire, when Sen. Proxmire was found to be acting outside of the clause in making media comments regarding his golden fleece award.

Members often knowingly make defamatory comments in congressional debates, but then decline to repeat those same words in public to avoid any legal accountability. I faced that tactic in representing Dr. Eric Foretich in the Elizabeth Morgan controversy. Members would say false and defamatory claims about my client on the floor, but would carefully avoid repeating those claims in interviews. My challenge to the Elizabeth Morgan Act took years before it was struck down as an unconstitutional Bill of Attainder.  However, we could not bring a defamation action due to members using the Speech and Debate Clause as a shield.

That would create a nightmarish combination if members are protected from actions in defaming witnesses but then can censor them when they defend themselves.

The fact that Lee’s immediate response was to censor a person who she had just attacked is telling. After labeling Gaines a hateful bigot, Lee did not believe that she should be allowed to denounce Lee’s own comments as an attack on women.

It shows the slippery slope of censorship. Democrats have embraced an anti-free speech agenda to silence opposing viewpoints. That desire becomes insatiable even as citizens seek to rebut personal attacks from members in a congressional hearing.

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