Edward Everett Hale, US Senate chaplain and famous writer from 1903 to 1909, was once asked: “Dr. Hale, do you pray for the senators? “Hale replied,” No, I look at the senators and I pray for the country. “Many of us feel the same way, especially in the Capitol Hill setting today.
The most recent reason for a Hale prayer is calls for the revival of the doctrine of fairness, an attempt to regulate media, which thankfully died in 1987 under the weight of their own absurdity. The fairness doctrine, adopted in 1949, required radio and television broadcasters to take opposing positions in the event of controversy. That’s only fair, supporters intoned, and who doesn’t want fairness?
In reality, the doctrine was far more effective at killing than leveling cover. In the 1980s, media outlets complained that the doctrine often resulted in stories being dropped instead of taking the time to air different pages. In addition, a review found the doctrine to be difficult to enforce and highly subjective in its application. The biggest problem was that it was a direct state regulation of the media. The Constitution says there can be no law that “curtails the free press” and many of us agree with Justice Hugo Black when he said, “I understand” no law curtail “as” no law curtailing ” . “
The doctrine was finally graciously repealed in 1987, but now it’s back with a vengeance. Some members of Congress are calling for a range of regulations for the media and the Internet, including calling for censorship of “disinformation” on topics ranging from election fraud to climate change to gender identification. Others, such as Reps. Anna Eshoo, D-Calif. And Jerry McNerney, D-Calif., Recently wrote to cable vendors to encourage control of news media content and strongly suggested that viewers access networks like Fox News to refuse . Many, like Rep. Ro Khanna (D-Calif.), Have identified such content controls as part of a new doctrine of fairness.
Such language and media controls have become a major topic of discussion for Democrats. It sometimes seems that to be progressive one has to be regressive on issues like free speech and free press. With the rise of conservative networks like Fox, many are calling for our values to be redefined to allow for greater regulation of language and press.
Indeed, restricting such rights is now seen as a democratic virtue. In a column in the Washington Post, Victor Pickard, a professor at the University of Pennsylvania, insisted that we “review our assumptions about the relationship between the First Amendment, content regulation, corporate power, and any hope for a democratic future.” Others are more direct: a column on the liberal Daily Kos celebrated the end of the late Rush Limbaugh’s radio show but wistfully noted that “there was a time when he couldn’t have existed”. Those who defied a doctrine of fairness were dismissed as “racists, bigots, anti-Semites and other US filthy brands”. (Fortunately for the Daily Kos there are no equal time or balance requirements.)
There are still significant questions about the constitutionality of the doctrine, although it was confirmed in 1969. This decision in Red Lion Broadcasting v Federal Communications Commission was based on a lower standard of verification (the mid-term test) that many of us consider inappropriate. Furthermore, much has changed since the court applied a “scarcity principle” in upholding the doctrine to what was then a much smaller media market that only a few broadcast networks belong to. This reasoning is no longer convincing with today’s diversity of media, including cable programming. Even with less media in the 1980s, the doctrine did little to promote actual balance.
What people consider “balance” is highly subjective. Cable networks like CNN, MSNBC, and Fox News are often targeted for bias from opposing parties. However, all networks highlight opposing views. In some cases, this balance is mocked. For example, despite a lengthy litany of controversial statements against both Conservatives and Republicans, the Washington Post has long referred to Jennifer Rubin as its “conservative opinion maker,” including her proposal to burn down the Republican Party. All of these sockets, including cable networks, could claim such a balance under the doctrine of fairness.
Liberals are not the only ones calling for a revival of a doctrine of fairness. Republicans have called for a similar doctrine for the Internet. Senator Josh Hawley (R-Mo.) Has proposed bill to combat the rise of Internet censorship by requiring companies to obtain certification of their political “neutrality” from the Federal Trade Commission. This is of course a bit too much “fairness” for others who denounced the idea as a denial of freedom of speech.
There is an alternative that is true neutrality. The fairness doctrine can be left in the crypt with other dead media control flaws. Congress could then give big tech companies a simple choice: go back to neutral communication platforms or lose their immunity protection under Section 230 of the Communications Decency Act.
Big tech once evolved into the equivalent of the phone company, so it sought protection as a neutral provider of communication forums that allow people to voluntarily connect and interact. It then began to engage in expanding, contradicting acts of censorship. Nevertheless, it wants to remain protected as if it were neutral, even though it is actively changing the content. We would never allow a telephone company operator to drop off a call to say that the company does not approve of a statement that has just been made, or to cut off the line for those who do not issue approved positions.
That’s why I call myself an “internet originalist”. True neutrality leaves it to the individual to decide who to read, watch or talk to in the media. It’s the original doctrine of fairness – and it was fair because it was free. Otherwise we can again let politics determine who can speak and what can be said. However, as Hale might notice, we should begin with a prayer.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.