The fairness doctrine is bad news

Edward Everett Hale, a chaplain on Capitol Hill for the early 1900s and a celebrated writer, was once asked, “Do you pray for the senators?” Hale replied, “No. I look at the senators and pray for the country.” Many of us have felt the same way with the heated climate in politics.

The latest reasons to pray are demands to resurrect the fairness doctrine, an effort to regulate the media that thankfully died under the weight of its own absurdity. It had forced radio and television outlets to offer opposing views on all issues. Who would not want fairness? But in reality, the policy was more effective at dropping coverage than balancing it.

By the 1980s, media figures said the policy often caused dropping stories rather than giving time to air different sides. Moreover, a review showed it was difficult to enforce and highly subjective. The problem was it allowed direct government regulation of the media. The Constitution states there can be no law “abridging the free press.” Indeed, Justice Hugo Black said himself, “I take no law abridging to mean no law abridging.”

The fairness doctrine was removed over three decades ago, but it is now back with a vengeance. Some members of Congress are calling for more regulation of the media and the internet, including calls for censorship of disinformation on issues from election fraud to climate change to gender identification. Representatives Anna Eshoo and Jerry McNerney called for cable providers to add content controls and even suggested they should prevent access to networks like Fox News. Further, many have referred to such content controls to be within a new fairness doctrine.

These content controls have become a talking point for Democrats. Today, it sometimes sounds that, to be progressive, you have to be regressive on issues like free speech. With the rise of conservative networks such as Fox News, many want the redefinition of our values to allow greater regulation of the media. Limiting such rights is now framed as a virtue.

In his Washington Post column, Victor Pickard said we must examine “our assumptions about relationships between the First Amendment, content regulation, corporate power, and any hope for a democratic future.” One Daily Kos column celebrated the end of the radio show with the late Rush Limbaugh, but cited that “there was a time when he would not have been able to exist.” It dismissed those opposing a fairness doctrine as “bigots, racists, antisemites, and other brands of filth” in the nation.

There remain substantial issues over the policy. A decision to uphold it in the late 1960s in Red Lion Broadcasting versus Federal Communications Commission was based on a lower standard of review, which many of us view as improper. Much has changed since the Supreme Court applied a “scarcity principle” to what was back then a much smaller media market, including only a few broadcast networks. That is no longer the case with the diversity of the outlets today, including cable programs.

What people believe is balance is highly subjective. Cables networks are often attacked for bias from opposing sides. Yet all of the cable networks highlight opposing views. In some cases, this balance has been mocked. For instance, the Washington Post had once featured Jennifer Rubin as a conservative writer despite her litany of controversial statements against both Republicans. All of the outlets, including the cable networks, could claim such balance under a policy of the fairness doctrine.

Democrats are not the only ones trying to resurrect the fairness doctrine. Republicans have called for a similar policy for the internet. Senator Josh Hawley has proposed legislation to combat growing online censorship by mandating companies to receive Federal Trade Commission certification of their political neutrality. That of course is a tad too much fairness with others who denounced the idea as a denial of free speech.

There is an alternative, which is true neutrality. The fairness doctrine can be left in the crypt with other deceased media control failures. Congress could then give technology firms the choice between a return to neutral platforms for free speech or a loss of the immunity protection under the provision for them with the Communications Decency Act.

The technology industry once fashioned itself as much like the telephone industry. But it started to engage in acts for censorship, and yet still wants protection as if it were neutral. That is one reason I call myself the internet originalist. True neutrality leaves it to individuals to decide what they read and who they watch. Indeed, it is the original fairness doctrine. Otherwise we can run back to letting our politicians dictate who can speak and what can be said. As Hale may note, however, we must first pray.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.