The Fairness Doctrine Can Be Bad News

Below is my column in The Hill on the attempts to reestablish the Fairness Doctrine and to expand it to cable programming.
Here is the column:

Hale responded,”I look at the senators and beg for the country.” Many people have felt the identical manner, especially with the current free-for-all surroundings on Capitol Hill.
The latest reason behind a Hale prayer would be the needs to resurrect the fairness doctrine, an attempt to regulate media that thankfully died in 1987 under the sheer weight of its own absurdity. Adopted in 1949, what became known as the fairness doctrine necessary television and radio outlets to offer conflicting perspectives on any controversy. That’s only fair, supporters intoned, and that would not want fairness?
In fact, the philosophy was far more effective at killing than balancing coverage. By the 1980s, media figures complained that the philosophy often resulted in dropping stories rather than committing the opportunity to broadcast different sides. Furthermore, a review showed the philosophy was hard to apply and highly subjective in its application. The largest problem was that it comprised direct government regulation of websites. The Constitution says there can be no law”abridging the free press,” and many people concur with Justice Hugo Black’s perspective when he said”I take’no law abridging’ to mean’no law abridging. ”’
The philosophy was finally, mercifully rescinded in 1987, however, it’s now back with a vengeance. Many members of Congress are calling for an array of regulations of websites and the world wide web, including requirements for censorship of”disinformation” on subjects which range from election fraud into climate shift to sex identification. Others, such as Reps. Anna Eshoo (D-Calif.) , recently wrote cable suppliers to push for content controls over news media and suggested they need to prevent viewers from having access to networks such as Fox News. , have known to such content controllers as part of a brand new fairness doctrine.
Such speech and media controllers have turned into a main Democratic talking stage. It sometimes appears that, to be innovative, you have to be regressive on issues such as free speech and the free press. Together with the ascension of conservative websites such as Fox, most are requiring that a redefinition of our worth to permit increased regulation of speech and press.
Really, restricting such rights has become styled as a democratic virtue. Others are more direct: A column on the liberal site Daily Kos celebrated the conclusion of this late Rush Limbaugh’s radio series but noticed wistfully that”there clearly was a time when he would not have been able to exist” It dismissed those opposing a fairness doctrine as”racists, bigots, antisemites, along with other US manufacturers of filth.” (Fortunately for the Daily Kos, it confronts no demands of equal time or equilibrium.)
There remain substantial questions within the philosophy’s constitutionality, despite being preserved in 1969. That decision, in Red Lion Broadcasting v. Federal Communications Commission, was established on a lower standard of inspection (the intermediate scrutiny test) that many people view as unsuitable. Furthermore, much has changed since the court, in upholding the philosophy, implemented a”lack principle” to what was back then a considerably smaller media marketplace, for example only a couple of broadcast networks. That justification is no more compelling with the current diversity of media outlets, including cable programming. Additionally, despite fewer media outlets in the 1980s, the philosophy did little real great in boosting actual equilibrium.
What people view as”equilibrium” is highly subjective. Cables networks such as CNN, MSNBC and Fox News are often attacked for bias from opposing sides. However, each one the networks highlight conflicting viewpoints. In some cases, this equilibrium is advised. As an example, the Washington Post has featured Jennifer Rubin as its”conservative view author” despite having a lengthy litany of controversial statements from the two conservatives and Republicans, for example her suggestion that the Republican Party ought to be burned to the ground. All these outlets, for example, cable networks, can claim such equilibrium below the fairness doctrine.
Liberals are not the only ones calling to reestablish a fairness doctrine; Republicans have known for a similar philosophy for the net. Has suggested a law to fight growing net censorship by requiring businesses to get Federal Trade Commission certification of the political”neutrality.” That, clearly, is a bit too much”fairness” for others, that denounced the idea as a denial of free speech.
There’s an alternative, which will be true neutrality. The fairness doctrine could be abandoned from the crypt with other deceased media-control failures. Congress might then give Enormous Tech businesses a simple choice: Return to being neutral systems for communications, or lose your immunity defense under Section 230 of the Communications Decency Act.
Big Tech once engineered itself as the equal of the telephone business, and thus sought protections as neutral suppliers of communicating forums allowing individuals to voluntarily associate and interact. It then begun to engage in expanding, contradictory actions of censorship. However, it still wants to remain protected as if it were neutral despite actively altering content. We’d never tolerate a telephone company operator cutting into a phone to say the firm didn’t approve of an announcement that was just made, or cutting the line if you didn’t voice accepted positions.
That is the reason I call myself an”online originalist.” Authentic neutrality leaves it to people to choose who they read, see or converse with at the press. It’s the original fairness doctrine — also it was reasonable since it was liberated. We can return to letting politicians dictate that can talk and what could be said. Since Hale might note, nevertheless, we need to begin with a prayer.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You will find his updates online @JonathanTurley.

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