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Jun 17, 2019

The Fairness Doctrine Was Terrible for Broadcasting and It Would Be Terrible for the Internet

American was founded upon the immodest proposition that the best response to bad speech is more speech. It is a fundamentally democratic proposition, one that is as appropriate for the digital age as it was for the 1780s.

The Fairness Doctrine Was Terrible for Broadcasting and It Would Be Terrible for the Internet

Skepticism of big tech companies is surging on both sides of the political spectrum, from Democratic Senator Elizabeth Warren calling for breaking up Amazon to Republican Senator Josh Hawley advocating rules that would prohibit online viewpoint discrimination. This wave of techno-progressivism finds its latest expression in Slate journalist April Glaser’s article, “Bring Back the Golden Age of Broadcast Regulation.”

Glaser argues that the problems of internet discourse—eg hate speech, haphazard content moderation, and conspiracy peddling—are so trenchant that government intervention is warranted. She calls for applying the rules that once governed mid-twentieth century radio and television broadcasting to the internet, the most important of which was the mandate that broadcasting be done in the “public interest, convenience, and necessity” as laid out in the 1934 Communications Act. Inspired by that mandate, reform-minded progressives at the Federal Communications Commission (FCC) enacted the Fairness Doctrine in 1949, which required broadcasters to provide multiple points of view when discussing political disagreements.

Glaser’s proposal is light on details about how exactly broadcast rules would be adapted for the internet, but it is heavy on assurances that any such regulations would be “light-touch.” Those who worry that inviting the feds to just “do something” could lead to violations of free speech need not be concerned. As Glaser argues, “For decades, radio and television followed regulations—hardly heavy-handed ones—meant to ensure they served the information needs of their audiences and did not actively harm political discourse.”

That would be lovely, if it were true, but not a single part of that statement is correct. The belief that government regulation of internet content providers will be effective and minimally-invasive is rooted in a poor understanding of the history of broadcast regulation. That history actually suggests the opposite, that these regulations will be ineffective, highly-intrusive, and will create significant unintended consequences.

In part, that is because the very idea of a singular “public interest” has always been a convenient fiction, albeit one that wears poorly in a pluralistic society. For example, under the banner of advancing the public interest, the FCC once required radio stations to give away free airtime to religious groups (most of which went to mainline Protestants, Roman Catholics, and the larger Jewish denominations) since it seemed obvious to the commissioners that there was a singular public interest in promoting a vague baseline religiosity. Agnostics, atheists, and members of smaller religious groups need not apply.

In practice, the public interest standard became a tool for advancing the private interests of a narrow, politically well-connected elite by appealing to majoritarian values and at the expense of minority interests. In one of her early newsletters, Ayn Rand excoriated the public interest standard as an excuse covering “the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons are not the public).” (“Check Your Premises: Have Gun, Will Nudge,” The Objectivist Newsletter, vol 1, no 3, March 1962.)

Rand’s words were meant particularly for FCC Chairman Newton Minow, who, in what may be the only famous speech by an FCC commissioner, had described television as a “vast wasteland” and called for limits on the number of game shows, Westerns, and cartoons aired. Sorry, kids, Chairman Minow thinks a “steady diet for the whole country” of the Flintstones or Bonanza is “obviously not in the public interest,” so no Saturday morning cartoon marathon for you! Minow might not have been wrong about the merits of Hanna-Barbera cartoons, but the idea that he and a handful of telecommunications lawyers sitting on the FCC should have a say in deciding that question “for the whole country” was fundamentally undemocratic.

But what was most dangerous about the public interest standard was not the aesthetic preferences of a FCC commissioner or even the religious airtime requirement. The more serious danger was the routine weaponization of the public interest standard to advance private or partisan interests. For example, during the early 1940s, the Roosevelt administration pushed for a ban on newspaper ownership of radio stations, ostensibly because of the public’s interest in preventing cross-media consolidation, but also to prevent anti-New Deal newspaper owners from having a radio platform from which to criticize the President’s policies. The FCC during Richard Nixon’s administration would use a similar rule to try and pressure the Washington Post into abandoning its investigation of the Watergate scandal.

But the ultimate example of the disconnect between the well-meaning intent of the public interest standard and its abuse for partisan advantage was the John F. Kennedy administration’s use of the Fairness Doctrine to silence conservative political dissent on the airwaves in the 1960s. Conservative radio broadcasting surged in the early 1960s as a result of the rise of non-network, independent radio stations that were cash-strapped and willing to air people whose politics were too radical for network radio. Conservative broadcasters—the most prominent of which had as many weekly listeners as Rush Limbaugh would a generation later—constantly attacked the Kennedy administration’s policies, like his failure to provide air support at the Bay of Pigs, opening trade with Eastern Bloc nations, and ratifying the Nuclear Test Ban Treaty.

The administration’s plan for dealing with these conservative irritants involved, among other measures, using the regulatory power granted to the executive branch to intimidate their donors and hosts. First, a special campaign of targeted Internal Revenue Service audits challenging their tax-exempt status stemmed the flow of donations to the offending broadcasters. Then, the selective application of the Federal Communication Commission’s Fairness Doctrine pressured station owners into dropping conservative programming altogether. All of this was coordinated from the Oval Office and the Attorney General’s office, part of it even caught on tape.

Subsequently, in July 1963, FCC Chairman E. William Henry announced a “clarification” of the Fairness Doctrine that mentioned only conservative positions and rhetoric when clarifying which kinds of speech would be targeted. The White House promptly organized a front organization, the Citizens Committee for a Nuclear Test Ban Treaty, that could lodge Fairness Doctrine-based requests for response time whenever a conservative broadcaster criticized the proposed treaty. The FCC also passed an enhancement of the Fairness Doctrine rules called the Cullman Doctrine, which required stations to not only offer response time slots contingent on the responding group paying for the airtime, but to give that airtime for free if interest groups said they could not afford to pay. (Unsurprisingly, no one ever said they could afford to pay.)

With the help of the Fairness Doctrine, the administration blunted criticism of the Nuclear Test Ban Treaty, which passed the Senate that fall. Kennedy was assassinated not long after, but the partisan use of the Fairness Doctrine continued apace. During the presidential campaign of 1964, the Democratic National Committee commissioned a team of operatives—including a former FCC lawyer who had been in charge of Fairness Doctrine enforcement—to garner free pro-Lyndon Johnson airtime any time a station aired broadcasters who spoke of their support for Barry Goldwater. As the lead operative later reported, the Fairness Doctrine campaign had secured more than 1,700 free broadcasts boosting Johnson and been highly effective at “inhibiting the political activity of these Right Wing broadcasts.”

From 1949 to 1963, the Fairness Doctrine had existed only on paper. It is notable that the first two actual applications of the Fairness Doctrine each expressly advanced partisan interests. Later in the decade, other liberal interest groups would also use the Fairness Doctrine to force stations to offer balanced programming or even, in the case of segregationist television station WLBT in Jackson, Mississippi, to convince the FCC to revoke their broadcasting license. But the Fairness Doctrine was never used to balance liberal programming with conservative voices. It had become entirely a tool for advancing liberal speech and political candidates at the expense of conservative speech and candidates.

Later, President Richard Nixon considered using Fairness Doctrine complaints to force the major television networks to give his administration’s policies more favorable coverage by, for example, being less critical of the slow pace of withdrawal from the Vietnam War. In the end, however, Nixon used other means to get what he wanted, but the fact that he had those tools at his disposal gave him leverage in back-room negotiations with network executives.

The realization that the tools used to suppress conservative speech by the Kennedy administration and the DNC in the early 1960s could be used by the Nixon administration to suppress liberal speech in the early 1970s led several operatives from the earlier censorship campaign to rue their involvement. This is a crucial test for any proposed government regulation. Do not imagine only the utility that your side or your interests might gain from its application; think also about the damage that could be done by the other side through that rule when they inevitably take their turn in power. If that prospect scares you, then reconsider the regulation.

To apply that test to today, imagine if the Trump administration had the same regulatory powers over the internet at its disposal as Kennedy had over broadcasting. What would a Trump-appointed FCC Chairman, told to keep internet discourse fair and balanced, currently be doing? Imagine that Chairman, after a Trump tweetstorm complaining about the Washington Post’s unfair coverage, launching an investigation into the ratio of conservative to liberal reporting on the Post’s website. Or consider the kind of pressure that pro-Trump conservative activists could place on Facebook or Twitter with the implicit threat of a federal investigation into algorithmic bias against conservative accounts.

It is naive to think, as Glaser writes, that regulation of the internet “wouldn’t mean that the feds would decide what is and is not acceptable speech on the platforms.” That statement directly contradicts the following sentence, that it “could mean rules against broadcasting hateful views or disinformation to large audiences.” You can either have the government play censor and ban hate speech or not; you can’t have both.

If intent were all that mattered, Glaser’s call for banning hate speech and disinformation would at least sound plausible. The government says no hate speech, the platforms comply, bada bing, bada boom, problem solved! Yet again, realize that regulations are only as good as the regulators responsible for enforcing them. How might an investigation into the “fake news” problem during the 2016 election look different depending on whether Hillary Clinton or Donald Trump was sitting in the White House today? If there is one key lesson from the history of the Fairness Doctrine to bear in mind, it is that good intentions paved the road to regulatory hell. It is entirely possible that rules meant to promote good information and discourage hate speech could be twisted to promote disinformation and protect hate speech.

There is also a cautionary tale from the history of broadcast regulation about the chilling effect that content regulation has on radical political speech. During the height of the anti-Radio Right censorship campaign in the 1960s, many radio station owners confronted with Fairness Doctrine complaints didn’t respond by adding liberal points of view; instead, they dropped the conservative programs altogether and simply avoided any content that touched on hot button issues. And if they did still air programs touching on “controversial issues of public importance,” as the Fairness Doctrine ostensibly encouraged, they frequently framed any disagreement over that issue as a binary option between mainstream, respectable points of view. Radicals from both Left and Right were drastically underrepresented.

A great deal of political speech that is broadcast today could not have existed under that regulatory framework. You could not have the Daily Show or the Late Show if every time Trevor Noah or Stephen Colbert criticized the President the network had to give the administration free response time. Single point-of-view editorial shows—from Rachel Maddow to Tucker Carlson—would be less common given the resulting obligation to provide contrasting opinions.

That this kind of programming exists at all is a product of the decision in the late 1970s to exempt satellite and cable broadcasting from the kind of close regulatory scrutiny applied to network broadcasts. Otherwise, cable television would look more like network television, with a tendency to appeal to the lowest common public denominator rather than to diverse constituencies. Given the outcomes from the history of broadcast regulation, if similar rules were applied to the internet there is every reason to expect a similar chilling effect on the major platforms.

The final problem that I will mention with regulating the internet like broadcasting is that the basic legal arguments for broadcasting regulation do not apply to the internet. Even back in the 1930s, the courts recognized that the public interest standard represented an infringement on perfectly free speech. First, the government decided which applicants received station licenses, choosing who got the opportunity to transmit their speech in the first place. Second, they made license renewal contingent on whether their speech was acceptable or not. These rules privileged the speech of certain groups at the expense of others.

For example, early socialist-run radio stations were labeled as propaganda not in the public interest and ultimately pressured into selling their stations to the major, milquetoast networks. The public interest standard was used to undermine both the Popular Front movement and anti-New Deal conservatives during the 1930s. Then in the 1960s, it would hinder the rise of both the New Left and the New Right.

These infringements on the First Amendment were justified ex post facto on the basis of the scarcity principle, the idea that since broadcast spectrum was naturally finite, the government was forced to ration it out in an orderly manner to prevent signal overlap and to promote a diversity of opinion. That principle rested on several assumptions questionable even in the early twentieth century, but it was at least a plausible-sounding argument.

However, the scarcity principle could not apply less to the internet. There are no natural limits on the amount of internet speech that is possible, no digital spectrum that must be divvied up and managed by government regulators lest it all run out. And so there is no reason to treat internet media as fundamentally different than any other category of media. The best corollary to the internet is not radio or television but print media.

Glaser’s justification for why social media ought to be regulated by the government is that “like radio or television, social media plays a central role in providing people with the information they need to participate meaningfully in political life.” But that standard is equally true of newspapers. Think of the importance of whichever your preferred paper of record to your civic knowledge and participation.

Glaser also argues that the internet is different because of the prevalence of conspiratorial and hateful nutters. But there too, you can find plenty of corollaries from the history of the newspaper industry. You cannot, for example, tell the story of the Spanish-American War without speaking of “yellow journalism.” Across the grand scope of American history, newspapers have been as prone to conspiracy theorizing and disinformation as internet-based media is today.

Yet despite the manifest failings of newspapers, we generally recognize the necessity of protecting press freedom. I cannot imagine that even Glaser would welcome applying old broadcast regulations to newspapers, whether print or digital. I certainly would look amiss at calls for the government to require Slate or any other magazine to publish a certain quota of religious or Right-of-center content in the service of promoting fairness and balance.

That is because when James Madison wrote the Bill of Rights codifying the freedom of the press, he was not using the term in the sense we do today to refer to journalism. ‘Press’ quite literally meant the printing press. In contrast to much of Europe, where protections for speech did not always extend to the printing press, in America anybody with a press could print whatever they wished, regardless of how the British crown or established clergy or the general public felt about what they said. Among the ideals that American was founded upon was the immodest proposition that the best response to bad speech is more speech, not censorship. It is a fundamentally democratic proposition, one that is as appropriate for the digital age as it was for the 1780s.


 

This piece was originally publised for the Cato at Liberty blog