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Thursday, June 20, 2019

Creating a Fairness Doctrine for the Internet Is a Really Bad Idea

Any serious consideration of the realities surrounding the Fairness Doctrine makes it clear that extending government regulation to social media in a similar fashion would produce abusive, ham-handed results.

Photo by Melany Rochester on Unsplash

Critics of America’s online discourse have heightened their objections to what they see as viewpoint bias, hate-mongering, what Bill Clinton once called “the politics of personal destruction,” and questionable content curation by social media companies.

Should Social Media Be Regulated? 

Now some are making calls to impose government regulations to “solve” the problems they see. A good example is April Glaser’s April 6 Slate piece, “Bring Back the Golden Age of Broadcast Regulation.”

She sees an analogy between radio and TV’s one-time role as crucial communications infrastructure and today’s social media platforms, concluding that what once justified “public interest” regulation of radio and TV now justifies imposing parallel regulation of social media sites.Unfortunately, Glaser’s core premise is far closer to the opposite of the truth than to the truth. She asserts that the history of earlier regulation, specifically the Fairness Doctrine, shows that new regulations would be “light-touch” because “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.”

Unfortunately, Glaser’s core premise is far closer to the opposite of the truth than to the truth. Thomas Hazlitt’s recent book The Political Spectrum shows that at almost every possible margin, regulation of the broadcast spectrum created an ocean of partisan disasters. Similarly, Paul Matzko wrote of Glaser’s claim that “not a single part of that statement is correct.”

The Unfair Fairness Doctrine

However, before looking at the incredibly unfair history of the Fairness Doctrine, it is worth spending a moment asking whether it is even possible, much less plausible, that government could even-handedly regulate the fairness of political discourse.

It is true that the Fairness Doctrine is attractively named. But that is because fair is a great weasel word. Such mutually inconsistent views of fairness assures us that controls to regulate political speech will be highly political and unfair.Everyone thinks their positions are eminently fair, and no one wants to say they are against fairness. That is, fairness is in the eye of the beholder, favoring restrictions on others they disagree with but opposing restrictions they don’t want imposed on them.

Such mutually inconsistent views of fairness, cloaked by similarity of language, assures us that controls to be proposed to regulate political speech in the name of fairness will be highly political and unfair.

Consider just some of the problems with such “fairness” as applied to radio.

Lack of Clearly Defined Standards

To begin with, there is no unambiguous way to measure what should count as sufficiently partisan to qualify opponents for equal time. It doesn’t seem that there is any greater ability to define the term to have a clear, legally useful meaning than Justice Potter Stewart’s inability to define pornography beyond “I know it when I see it.”

How much control is a station assumed to have over employees? Over those not its employees? Where is the line between objecting to an individual politician and an attack on a party?Costly government arbitrariness and intrusiveness stifled many voices until the Reagan administration ended it in 1987. If more than one person holds a position attacked, who, and how many, should get equal time? Given that the number of listeners varies greatly over time, does it have to be given at the same time of day? Should radio callers’ time be counted or just the host’s when it comes to how much “compensatory” time must be provided to those claiming unfair treatment?

Would those making the charge or those trying to rebut it bear the burden of proof? The result of these problems, and far more, was incredible government arbitrariness and intrusiveness, with huge costs (ranging from legal bills to potentially being forced to give away a great deal of airtime to the threat of losing one’s broadcast license) that stifled many voices until the Reagan administration ended it in 1987.

The World Is Not Always Republican vs. Democrat 

The implication that fairness only involves the two major parties is also highly objectionable. There are not just Republican views and Democrat views, with each group being homogenous, so that fairness only requires balancing one against the other. One Democrat could claim to deserve equal time for something another Democrat said, and similarly for Republicans. Far worse from my perspective is that I do not belong to either party, both of which frequently violate my views.

Many times the only difference between party positions is who will steal from whom, while I object to using the government to steal for anyone from anyone else. Isn’t it fair that I be given equal time whenever either party proposes to rob Peter to pay Paul (which Paul insists is fair, but Peter insists is unfair)? And if both Democrats and Republicans come up with “bipartisan” plans in such areas, shouldn’t I get double the time to respond to the two-against-one attack?

Glaser asserts the historical “public use” regulations such as the Fairness Doctrine were “light-touch,” but they were anything but. 

By further extending such a hot mess to social media platforms, even more problems would arise. What would be the appropriate compensatory policy? If someone tweeted an attack, should the victim get the same number of words to respond? The same number of tweets? As much “room” as they want? What policies to try to forestall such attacks would be adequate and fair (as restricting unpleasant topics could both deter “haters” and important investigative journalism)? Etc. Etc.

Such speculations turn us back to the history of “public use” regulations such as the Fairness Doctrine, which Glaser asserts were “light-touch” but were anything but.

I would recommend The Political Spectrum for a deep dive into this issue, though Matzko’s article offers a good shorter treatment, with a more extensive analysis that will be coming next year in his forthcoming The Radio Right, from Oxford University Press. But here, consider just a few brief examples of “light-touch” FCC regulation.

“Light-Touch” FCC Regulation

In the early 1940s, FDR pushed banning newspapers from owning radio stations as being in the “public interest” of preventing media consolidation, but the policy really aimed to keep FDR’s newspaper opponents from acquiring radio platforms to push back against his policies.

Things became much more abusive in the Kennedy/Johnson years. Independent radio stations had become more important by the 1960s, putting more critical voices on the air, particularly with regard to Kennedy’s Nuclear Test Ban Treaty. Organized from the offices of the president and attorney general, a front organization called the Citizens Committee for a Nuclear Test Ban Treaty was created to bring Fairness Doctrine complaints to demand response time against stations criticizing it. Fairness Doctrine rules were also “reformed” by the Cullman Doctrine, requiring stations to offer response time for free if an offended group said it could not afford to pay (i.e., always), sharply jacking up the price to them of offering criticism.

The only administration whose Fairness Doctrine activity makes them look better was Ronald Reagan… because his administration killed it. 

After Kennedy was assassinated, Fairness Doctrine abuses continued. During the 1964 presidential campaign, the DNC commissioned operatives—including a lawyer who had headed Fairness Doctrine enforcement—to coerce free LBJ airtime out of stations that aired Goldwater support. The leader later bragged of extracting over 1,700 free broadcasts and “inhibiting the political activity of these Right Wing broadcasts.”

Later, President Richard Nixon used such licensing leverage to kill the liberal “Smothers Brothers Comedy Hour” and to try to pressure the Washington Post to back off Watergate coverage.

In fact, the only administration whose Fairness Doctrine activity makes them look better—whose application of the Fairness Doctrine was consistent with fairness—was Ronald Reagan… because his administration killed it. 

The Vladimir Lenin Fairness Doctrine

The history of the Fairness Doctrine, in addition to the myriad logical, measurement, and enforcement reasons it could not be fair in practice, shows that “light-touch” regulations under the Fairness Doctrine offer only foreboding prospects for social media regulation. It would unwisely double down on a policy of which Justice William Douglas once wrote,

The regime of federal supervision under the Fairness Doctrine is contrary to our constitutional mandate and reduces the [licensee] to a timid or submissive segment of the press whose measure of the public interest will now be echoes of the dominant political voice that emerges after every election.

Justice Douglas also concluded that

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

In fact, Fairness Doctrine restrictions in practice were closer to the Soviet ideal than America’s. As Lenin put it:

Why should a government…allow itself to be criticized …Why should any man be allowed to…disseminate pernicious opinions calculated to embarrass the government?

Any serious consideration of the realities surrounding the Fairness Doctrine makes it clear that extending government regulation to social media in a similar fashion would produce abusive, ham-handed results rather than benign, light-touch guardrails that help resolve societal issues. So “doing something” falls very short when it comes to predictable or demonstrable improvement. For my own part, however, I kind of like the idea of requiring that whenever someone advances the Fairness Doctrine as a model for social media regulation, they must call it the Vladimir Lenin Fairness Doctrine.

  • Gary M. Galles is a Professor of Economics at Pepperdine University and a member of the Foundation for Economic Education faculty network.

    In addition to his new book, Pathways to Policy Failures (2020), his books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).