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Free Speech

Part III: The GOP Wants to Kill the Fairness Doctrine, Then Applies It to the Internet

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4 years ago

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Photo of Ted Cruz from February 2018 by Gage Skidmore used with permission

WASHINGTON, August 21, 2019 — Questions of political neutrality and social media bias have been at the forefront of the ongoing debate over the Communications Decency Act’s Section 230. Some of these claims are frequently compared to another controversial law: The Fairness Doctrine.

“The idea that government should police the ‘neutrality’ of websites is, in effect, a Fairness Doctrine for the Internet,” said TechFreedom President Berin Szóka.

The Republican Party has a long history of opposition to the Fairness Doctrine. Indeed, it was under President Ronald Reagan’s Federal Communications Commission, the principle was abjured in 1987.

Yet Republican opposition runs so deep, in fact, that the official GOP Platform still calls for “an end to the so-called Fairness Doctrine.”

Given the intensity of Republican opposition to the doctrine for generations, any similar proposal coming from the right would be ironic.

And yet, in a startling break from party history, recent months have seen several prominent Republican politicians do just that, claiming that legal protections for online platforms should be conditioned on their politically neutrality.

What was the Fairness Doctrine?

In the ongoing debate over Section 230, it is important to take into account the effects of similar measures throughout history.

First implemented by the FCC in 1949, the Fairness Doctrine required broadcast licensees to “adequately cover issues of public importance” and include coverage of all the “various positions taken by responsible groups.”

The doctrine was upheld by the Supreme Court two decades later in Red Lion Broadcasting Co. v. FCC, a decision based upon the premise that public airwaves were limited, and therefore scarce.

“A license permits broadcasting, but the licensee has no constitutional right to…monopolize a radio frequency to the exclusion of his fellow citizens,” Justice Byron White wrote. Without government regulation, he said, “the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.”

By contrast, in the 1984 case Miami Herald Publishing Co. v. Tornillo, the court created a clear demarcation between broadcast transmissions and the First Amendment rights of print publishers. It unanimously ruled that “government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.”

The FCC was also turning against the doctrine, releasing in 1985 a report identifying several of the law’s weaknesses. In spite of its original purpose to encourage diverse viewpoints, the agency wrote, “we fear that in operation it may have the paradoxical effect of actually inhibiting the expression of a wide spectrum of opinion on controversial issues of public importance.”

The requirement “inextricably involves the Commission in the dangerous task of evaluating the merits of particular viewpoints,” the report continued.

The Reagan administration put the Fairness Doctrine to sleep

The conservative-libertarian alliance used to be staunchly opposed to the Fairness Doctrine and anything that would smack of bringing it back. They voiced concerns that broadcasters would be discouraged from addressing any issues that could possibly be considered controversial for fear of saying something that would trigger the law’s right of reply.

After a series of decisions and court-challenges about the application of the doctrine to teletex, a proto-internet type of transmission of words through broadcasting, the a Republican-majority FCC officially abolished it under Chairman Dennis Patrick. Congress passed legislation in an attempt to reinstate the Fairness Doctrine, but it was vetoed by Reagan and therefore died.

“We must not ignore the obvious intent of the First Amendment, which is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet,” Reagan said.

“History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee,” he continued.

Indeed, conservative talk radio in the 1990s might not have arisen without the death of the Fairness Doctrine, as well as considerable fear-mongering about its potential — including another unsuccessful attempt to reinstate the doctrine by Congress in 1991.

Why is the 2016 GOP platform still calling for an end to the Fairness Doctrine?

Yet, in 2016, the official Republican Party platform calls for “an end to the so-called Fairness Doctrine.” In its place, the platform advocates for “free-market approaches to free speech unregulated by government” and supports the “repeal of federal restrictions…protecting political speech on the internet.”

But with seeming disregard for this position, multiple GOP senators have recently supported legislation that appears markedly similar to the doctrine.

In June, Sen. Josh Hawley, R-Mo., introduced a bill that would require major digital platforms to prove every two years to the Federal Trade Commission that their moderation practices were entirely neutral in order to receive Section 230 protections.

At a Senate Judiciary Subcommittee Hearing in July, Sen. Ted Cruz, R-Texas, claimed that if big tech could not provide “clear, compelling data and evidence” of their neutrality, “there’s no reason on earth why Congress should give them a special subsidy through Section 230.”

Applying a Fairness Doctrine to the internet would have severe consequences, said Szóka, in that platforms would likely respond to such a rule by simply “squelching all political discussion.”

“The fact that the current occupant of the White House has regularly threatened to use the courts against this critics, and in fact has used the courts to enforce non-disclosure agreements to silence those he does not want to speak, should give great pause to anyone considering empowering the government to force website operators to satisfy a standard so vague as ‘neutrality’ regarding ‘controversial’ matters (a category they cannot define in advance),” Szóka warned.

With the Fairness Doctrine dead, the First Amendment now covers almost all mediums of transmission

The Fairness Doctrine never would have survived First Amendment scrutiny were it not for the still-not-overturned holding in Red Lion. But the case is less and less relevant. Reno v. ACLU, the 1997 Supreme Court case overturning the underlying Communications Decency Act, made clear that the internet was not subject to the restrictive view of free speech that governed the broadcast media.

That precedent on free speech has been reaffirmed repeatedly by the Supreme Court, including again, including in Brown v. EMA.

In that 2010 case, the Supreme court noted that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”

Moreover, whether or not online platforms are politically neutral, courts have made it clear that the government cannot require speakers to give up First Amendment rights in exchange for a benefit, such as Section 230 protections.

In Perry v. Sindermann, the Supreme Court declared that “even though a person has no ‘right’ to a valuable government benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.”

These reasons include denying a person benefits “on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech.”

Section I: The Communications Decency Act is Born

Section II: How Section 230 Builds on and Supplements the First Amendment

Section III: What Does the Fairness Doctrine Have to Do With the Internet?

Section IV: As Hate Speech Proliferates Online, Critics Want to See and Control Social Media’s Algorithms

Related Topics:

Reporter Em McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for the student newspaper. In addition to agency and freelance marketing experience, she has reported extensively on Section 230, big tech, and rural broadband access. She is a founding board member of Code Open Sesame, an organization that teaches computer programming skills to underprivileged children.

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Free Speech

Improved Age Verification Allows States to Consider Restricting Social Media

Constitutional issues leading courts to strike down age verification law are still present, said EFF.

Published

2 weeks ago

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November 20, 2023

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WASHINGTON, November 20, 2023 — A Utah law requiring age verification for social media accounts is likely to face First Amendment lawsuits, experts warned during an online panel Wednesday hosted by Broadband Breakfast.

The law, set to take effect in March 2024, mandates that all social media users in Utah verify their age and imposes additional restrictions on minors’ accounts.

The Utah law raises the same constitutional issues that have led courts to strike down similar laws requiring age verification, said Aaron Mackey, free speech and transparency litigation director at the non-profit Electronic Frontier Foundation.

“What you have done is you have substantially burdened everyone’s First Amendment right to access information online that includes both adults and minors,” Mackey said. “You make no difference between the autonomy and First Amendment rights of older teens and young adults” versus young children, he said.

But Donna Rice Hughes, CEO of Enough is Enough, contended that age verification technology has successfully restricted minors’ access to pornography and could be applied to social media as well.

“Utah was one of the first states [to] have age verification technology in place to keep minor children under the age of 18 off of porn sites and it’s working,” she said.

Tony Allen, executive director of Age Check Certification Scheme, agreed that age verification systems had progressed considerably from a generation ago, when the Supreme Court in 2002’s Ashcroft v. American Civil Liberties Union, struck down the 1998 Child Online Protection Act. The law had been designed to shield minors from indecent material, but the court ruled that age-verification methods often failed at that task.

Andrew Zack, policy manager at the Family Online Safety Institute, said that his organization he welcomed interest in youth safety policies from Utah.

But Zack said, “We still have some concerns about the potential unintended consequences that come with this law,”  worrying particularly about potential unintended consequences for teen privacy and expression rights.

Taylor Barkley, director of technology and innovation at the Center for Growth and Opportunity, highlighted the importance of understanding the specific problems the law aims to address. “Policy Solutions have trade-offs.” urging that solutions be tailored to the problems identified.

Panelists generally agreed that comprehensive data privacy legislation could help address social media concerns without facing the same First Amendment hurdles.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, November 15, 2023 – Social Media for Kids in Utah

In March 2023, Utah became the first state to adopt laws regulating kids’ access to social media. This legislative stride was rapidly followed by several states, including Arkansas, Illinois, Louisiana, and Mississippi, with numerous others contemplating similar measures. For nearly two decades, social media platforms enjoyed unbridled growth and influence. The landscape is now changing as lawmakers become more active in shaping the future of digital communication. This transformation calls for a nuanced evaluation of the current state of social media in the United States, particularly in light of Utah’s pioneering role. Is age verification the right way to go? What are the broader implications of this regulatory trend for the future of digital communication and online privacy across the country?

Panelists

  • Andrew Zack, Policy Manager, Family Online Safety Institute
  • Donna Rice Hughes, President and CEO of Enough Is Enough
  • Taylor Barkley, Director of Technology and Innovation, Center for Growth and Opportunity
  • Tony Allen, Executive Director, Age Check Certification Scheme
  • Aaron Mackey, Free Speech and Transparency Litigation Director, Electronic Frontier Foundation
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources

Andrew Zack is the Policy Manager for the Family Online Safety Institute, leading policy and research work relating to online safety issues, laws, and regulations. He works with federal and state legislatures, relevant federal agencies, and industry leaders to develop and advance policies that promote safe and positive online experience for families. Andrew joined FOSI after five years in Senator Ed Markey’s office, where he worked primarily on education, child welfare, and disability policies. Andrew studied Government and Psychology at the College of William and Mary.

Donna Rice Hughes, President and CEO of Enough Is Enough is an internationally known Internet safety expert, author, speaker and producer. Her vision, expertise and advocacy helped to birth the Internet safety movement in America at the advent of the digital age. Since 1994, she has been a pioneering leader on the frontlines of U.S. efforts to make the internet safer for children and families by implementing a three-pronged strategy of the public, the technology industry and legal community sharing the responsibility to protect children online.

Taylor Barkley is the Director of Technology and Innovation at the Center for Growth and Opportunity where he manages the research agenda, strategy, and represents the technology and innovation portfolio. His primary research and expertise are at the intersection of culture, technology, and innovation. Prior roles in tech policy have been at Stand Together, the Competitive Enterprise Institute, and the Mercatus Center at George Mason University.

Tony Allen a Chartered Trading Standards Practitioner and acknowledged specialist in age restricted sales law and practice. He is the Chair of the UK Government’s Expert Panel on Age Restrictions and Executive Director of a UKAS accredited conformity assessment body specialising in age and identity assurance testing and certification. He is the Technical Editor of the current international standard for Age Assurance Systems.

Aaron Mackey is EFF’s Free Speech and Transparency Litigation Director. He helps lead cases advancing free speech, anonymity, and privacy online while also working to increase public access to government records. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

WATCH HERE, or on YouTube, Twitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook.

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Free Speech

UK’s Online Safety Bill Likely to Impact American User Experience

The bill will affect the tone and content of discussion on U.S.-owned platforms that wish to continue offering UK services.

Published

5 months ago

on

July 21, 2023

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Screenshot of Amy Peikoff of BitChute

WASHINGTON, July 21, 2023 – The United Kingdom’s Online Safety Bill will impact the American-based user’s experience on various platforms, said panelist at a Broadband Breakfast Live Online event Wednesday.  

The Online Safety Bill is the UK’s response to concerns about the negative impact of various internet platforms and applications. The core of the bill addresses illegal content and content that is harmful to children. It places a duty of care on internet sites, including social media platforms, search engines, and online shopping centers, to provide risk assessments for their content, prevent access to illegal content, protect privacy, and prevent children from accessing harmful content. 

The legislation would apply to any business that has a substantial user base in the UK, having unforeseen impacts on the end user experience, said Amy Peikoff, Chief Policy Officer of UK-based video-streaming platform, BitChute. 

Even though the legislation is not U.S. legislation, it will affect the tone and content of discussion on U.S.-owned platforms that wish to continue offering their services in the jurisdictions where this legislation will be enacted, said Peikoff. Already, the European Union’s Digital Services Act, is affecting Twitter, which is “throttling its speech” to turn out statistics that say a certain percentage of their content is “healthy,” she claimed. 

Large social media companies as we know them are finished, Peikoff said.  

Ofcom, the UK’s communications regulator, will be responsible to provide guidelines and best practices as well as conduct investigations and auditing. It will be authorized to apprehend revenue if a company fails to adhere to laws and may enact rules that require companies to provide user data to the agency and/or screen user messages for harmful content. 

Peikoff claimed that the legislation could set off a chain of events, “namely, that platforms like BitChute would be required to affirmatively, proactively scan every single piece of content – comments, videos, whatever posted to the platform – and keep a record of any flags.” She added that U.S-based communication would not be exempt. 

Meta-owned WhatsApp, a popular messaging app, has warned that it will exit the UK market if the legislation requires it to release data about its users or screen their messages, claiming that doing so would “compromise” the privacy of all users and threaten the encryption on its platform. 

Matthew Lesh, director of public policy and communications at the UK think tank Institute of Economic Affairs, said that the bill is a “recipe for censorship on an industrial, mechanical scale.” He warned that many companies will choose to simply block UK-based users from using their services, harming UK competitiveness globally and discouraging investors.  

In addition, Lesh highlighted privacy concerns introduced by the legislation. By levying fines on platforms that host harmful content accessible by children, companies may have to screen for children by requiring users to present government-issued IDs, presenting a major privacy concern for users.  

The primary issue with the bill and similar policies, said Lesh, is that it enacts the same moderation policies to all online platforms, which can limit certain speech and stop healthy discussion and interaction cross political lines. 

The bill is currently in the final stages of the committee stage in the House of Lords, the UK’s second chamber of parliament. Following its passage, the bill will go to the House of Commons in which it will either be amended or be accepted and become law. General support in the UK’s parliament for the bill suggests that the bill will be implemented sometime next year. 

This follows considerable debate in the United States regarding content moderation, many of which discussions are centered around possible reform of Section 230. Section 230 protects platforms from being treated as a publisher or speaker of information originating from a third party, thus shielding it from liability for the posts of the latter. 

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, July 19, 2023 – The UK’s Online Safety Bill

The UK’s Online Safety Bill seeks to make the country “the safest place in the world to be online” has seen as much upheaval as the nation itself in the last four years. Four prime ministers, one Brexit and one pandemic later, it’s just a matter of time until the bill finally passes the House of Lords and eventually becomes law. Several tech companies including WhatsApp, Signal, and Wikipedia have argued against its age limitation and breach of end-to-end encryption. Will this legislation serve as a model for governments worldwide to regulate online harms? What does it mean for the future of U.S. social media platforms?

Panelists

  • Amy Peikoff, Chief Policy Officer, BitChute
  • Matthew Lesh, Director of Public Policy and Communications at the Institute of Economic Affairs.
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources

Amy Peikoff is Chief Policy Officer for BitChute. She holds a BS in Math/Applied Science and a JD from UCLA, as well as a PhD in Philosophy from University of Southern California, and has focused in her academic work and legal activism on issues related to the proper legal protection of privacy. In 2020, she became Chief Policy Officer for the free speech social media platform, Parler, where she served until Parler was purchased in April 2023.

Matthew Lesh is the Director of Public Policy and Communications at the Institute of Economic Affairs. Matthew often appears on television and radio, is a columnist for London’s CityAM newspaper, and a regular writer for publications such as The Times, The Telegraph and The Spectator. He is also a Fellow of the Adam Smith Institute and Institute of Public Affairs.

Drew Clark is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

 

 

 

Illustration from the Spectator

WATCH HERE, or on YouTube, Twitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook.

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Free Speech

New Tool Measures Economic Impact of Internet Shutdowns

The calculator is being called a ‘major step forward’ for those pushing back against such shutdowns.

Published

5 months ago

on

July 10, 2023

By

Photo of a protest in Frankfurt, Germany by M K

July 10, 2023 – New measuring tool NetLoss launched by the Internet Society shows the impacts of internet shutdowns on economies including Iraq, Sudan and Pakistan, where government-mandated outages have cost millions of dollars in a matter of hours or days.

NetLoss, launched on June 28, calculated a four-hour shutdown in July in Iraq, implemented by the government to prevent cheating during high school exam season, resulted in an estimated loss of $1.6 million. In May, a shutdown in Pakistan cost more than $13 million over the span of four days, while a five-day internet outage in Sudan in April cost the economy more than $4 million and resulted in the loss of 560 jobs.

NetLoss is unique among other internet assessment tools as it also includes subsequent economic impacts on the unemployment rate, foreign direct investments, and the risk of future shutdowns, claimed the advocacy group Internet Society. It provides data on both ongoing and anticipated shutdowns, drawing from historical dataset of over 90 countries dating back to 2019.

“The calculator is a major step forward for the community of journalists, policymakers, technologists and other stakeholders who are pushing back against the damaging practice of Internet shutdowns,” said Andrew Sullivan, CEO of the Internet Society. “Its groundbreaking and fully transparent methodology will help show governments around the world that shutting down the Internet is never a solution.”

The tool relies on open-access databases, including the Internet Society Pulse’s Shutdown data, the World Bank’s economic indicators, the Armed Conflict Location and Event Data Project’s civil unrest data, Yale University’s election data, and other relevant socioeconomic factors. To stay up to date with real-time changes, the data will be updated quarterly.

According to the press release, internet shutdowns worldwide peaked in 2022 with governments increasingly blocking internet services due to concerns over civil unrest or cybersecurity threats. These disruptions are extremely damaging to the economy, read the document, as they impede online commercial activities and expose companies and the economy to financial and reputational risks.

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