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

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 g

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

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