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

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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

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.

Free Speech

Noted Classical Liberal Legal Scholar Countenances Regulation of Social Media

Georgetown University professor Randy Barnett said that the ability to post on social media might be a civil right.

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Photo of Randy E. Barnett, a legal scholar and constitutional law professor at Georgetown University, obtained from Flickr.

WASHINGTON, October 21, 2022 – Classical liberal political theory should acknowledge the need for government to regulate certain privately owned businesses that operate in the public sphere, said Randy Barnett, a legal scholar and constitutional law professor at Georgetown University.

Barnet’s argument, made at a Federalist Society web panel discussing on the regulation of social media platforms Thursday, is significant in that even a well-known libertarian scholar is putting forth a plausible case to regulate speech on such technology platforms.

Between fully public and fully private entities, there is a middle category of privately-owned entities that operate in the public sphere, such as public accommodations and common carriers, Barnett said.

The Civil Rights Act of 1875, for instance, regulated “privately owned, public institutions such as railroads, inns, and even places of public amusement such as opera halls,” he explained. Barnett suggested that regulation of public accommodations can protect an individual’s “civil rights.”

“Civil rights are the rights that one gets when one leaves the state of nature and enters into civil society, and these are the rights that are basically the government protections of our preexisting natural rights, but they’re also more than, they are privileges you have as citizens,” Barnett argued. “You also have a civil right to be able to travel throughout the country and to enter into places of public accommodation as an equal to your fellow citizens,” he added.

Barnett said he wasn’t sure if social-media platforms should be considered public accommodations, however. “Are Facebook and Twitter in or are they out” of the public-accommodations category, he mused. “That’s the thing about which I think reasonable people can still disagree,” he said.

Whether social media companies have First Amendment right to moderate content on their platforms had been seen as a well-established view about free speech in the United States. With increasing criticism of the tech sector from the Trump-infused element of the political right, the issue has now become a more open question.

In 2021, to combat alleged discrimination against speech by conservatives, Texas and Florida have each passed laws barring platforms from engaging in various kinds of viewpoint-based content-moderation.

The 11th U.S. Circuit Court of Appeals largely struck down Florida’s law in May, but the Fifth Circuit upheld the Texas statute in September. The Fifth Circuit has stayed the decision pending a likely Supreme Court review.

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Free Speech

Panel Hears Opposing Views on Content Moderation Debate

Some agreed there is egregious information that should be downranked on search platforms.

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Screenshot of Renee DiResta, research manager at Stanford Internet Observatory.

WASHINGTON, September 14, 2022 – Panelists wrangled over how technology platforms should handle content moderation at an event hosted by the Lincoln Network Friday, with one arguing that search engines should neutralize misinformation that cause direct, “tangible” harms and another advocating an online content moderation standard that doesn’t discriminate on viewpoints.

Debate about what to do with certain content on technology platforms has picked up steam since former President Donald Trump was removed last year from platforms including Facebook and Twitter for allegedly inciting the January 6, 2021, storming of the Capitol.

Search engines generally moderate content algorithmically, prioritizing certain results over others. Most engines, like Google, prioritize results from institutions generally considered to be credible, such as universities and government agencies.

That can be a good thing, said Renee DiResta, research manager at Stanford Internet Observatory. If search engines allow scams or medical misinformation to headline search results, she argued, “tangible” material or physical harms will result.

The internet pioneered communications from “one-to-many” broadcast media – e.g., television and radio – to a “many-to-many” model, said DiResta. She argued that “many-to-many” interactions create social frictions and make possible the formation of social media mobs.

At the beginning of the year, Georgia Republic representative Marjorie Taylor Greene was permanently removed from Twitter for allegedly spreading Covid-19 misinformation, the same reason Kentucky Senator Rand Paul was removed from Alphabet Inc.’s YouTube.

Lincoln Network senior fellow Antonio Martinez endorsed a more permissive content moderation strategy that – excluding content that incites imminent, lawless action – is tolerant of heterodox speech. “To think that we can epistemologically or even technically go in and establish capital-T Truth at scale is impossible,” he said.

Trump has said to be committed to a platform of open speech with the creation of his social media website Truth Social. Other platforms, such as social media site Parler and video-sharing website Rumble, have purported to allow more speech than the incumbents. SpaceX CEO Elon Musk previously committed to buying Twitter because of its policies prohibiting certain speech, though he now wants out of that commitment.

Alex Feerst, CEO of digital content curator Murmuration Labs, said that free-speech aphorisms – such as, “The cure for bad speech is more speech” – may no longer hold true given the volume of speech enabled by the internet.

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Free Speech

Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill

Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.

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Parler CPO Amy Peikoff

WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of  the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.

The decision keeps the law from taking affect until a full determination is made by a lower court.

Parler CPO Amy Peikoff

During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.

“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”

Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.

“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”

Different perspectives

Principal at McCollough Law Firm Scott McCollough said Wednesday  that he believed the law should have been allowed to stand.

“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”

McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.

“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”

Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”

Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”

Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.

“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”

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, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars

The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.

Panelists:

  • Scott McCollough, Attorney, McCollough Law Firm
  • Amy Peikoff, Chief Policy Officer, Parler
  • Ari Cohn, Free Speech Counsel, TechFreedom
  • Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
  • Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast

Panelist resources:

W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry.  Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.

Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.

Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.

Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.

Photo of the Supreme Court from September 2020 by Aiva.

WATCH HERE, or on YouTubeTwitter 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 YouTubeTwitter and Facebook

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

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