Here is the column:
Edward Everett Hale, the United States Senate chaplain from 1903 to 1909 and a celebrated writer, was once asked: “Dr. Hale, 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, particularly with today’s free-for-all environment on Capitol Hill.
The latest cause for a Hale prayer are the demands to resurrect the fairness doctrine, an effort 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 required radio and television outlets to offer opposing viewpoints on any controversy. That’s only fair, supporters intoned, and who wouldn’t want fairness?
In reality, the doctrine was far more effective at killing than balancing coverage. By the 1980s, media figures complained that the doctrine often led to dropping stories rather than committing the time to air different sides. Moreover, a review showed the doctrine was difficult to enforce and highly subjective in its application. The biggest problem was that it constituted direct government regulation of media. The Constitution says there can be no law “abridging the free press,” and many of us agree with Justice Hugo Black’s view when he said: “I take ‘no law abridging’ to mean ‘no law abridging.’”
The doctrine was finally, mercifully rescinded in 1987, but it is now back with a vengeance. Some members of Congress are calling for an array of regulations of media and the internet, including demands for censorship of “disinformation” on subjects ranging from election fraud to climate change to gender identification. Others, like Reps. Anna Eshoo (D-Calif.) and Jerry McNerney (D-Calif.), recently wrote cable suppliers to push for content controls over news media and strongly suggested they should prevent viewers from having access to networks like Fox News. Many, like Rep. Ro Khanna (D-Calif.), have referred to such content controls as part of a new fairness doctrine.
Such speech and media controls have become a main Democratic talking point. It sometimes seems that, to be progressive, you must be regressive on issues like free speech and the free press. With the ascension of conservative networks like Fox, many are demanding a redefinition of our values to allow greater regulation of speech and press.
Indeed, limiting such rights is now framed as a democratic virtue. In a Washington Post column, University of Pennsylvania professor Victor Pickard insisted that we should “reexamine our assumptions about the relationships between the First Amendment, content regulation, corporate power and any hope for a democratic future.” Others are more direct: A column on the liberal site Daily Kos celebrated the end of the late Rush Limbaugh’s radio show but noted wistfully that “there was a time when he wouldn’t have been able to exist.” It dismissed those opposing a fairness doctrine as “racists, bigots, antisemites, and other US brands of filth.” (Fortunately for the Daily Kos, it faces no requirements of equal time or balance.)
There remain substantial questions over the doctrine’s constitutionality, despite its being upheld in 1969. That decision, in Red Lion Broadcasting v. Federal Communications Commission, was based on a lower standard of review (the intermediate scrutiny test) that many of us view as inappropriate. Moreover, much has changed since the court, in upholding the doctrine, applied a “scarcity principle” to what was back then a much smaller media market, including just a few broadcast networks. That reasoning is no longer compelling with today’s diversity of media outlets, including cable programming. Moreover, even with fewer media outlets in the 1980s, the doctrine did little real good in promoting actual balance.
What people view as “balance” is highly subjective. Cables networks like CNN, MSNBC and Fox News are often attacked for bias from opposing sides. Yet, all of the networks highlight opposing views. In some cases, this balance is mocked. For instance, the Washington Post has long featured Jennifer Rubin as its “conservative opinion writer” despite a long litany of controversial statements against both conservatives and Republicans, including her suggestion that the Republican Party should be burned to the ground. All of these outlets, including the cable networks, could claim such balance under the fairness doctrine.
Liberals are not the only ones calling to resurrect a fairness doctrine; Republicans have called for a similar doctrine for the internet. Sen. Josh Hawley (R-Mo.) has proposed a law to combat growing internet censorship by requiring companies to receive Federal Trade Commission certification of their political “neutrality.” That, of course, is a tad too much “fairness” for 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 Big Tech companies a simple choice: Return to being neutral platforms for communications, or lose your immunity protection under Section 230 of the Communications Decency Act.
Big Tech once fashioned itself as the equivalent of the telephone company, and thus sought protections as neutral suppliers of communication forums allowing people to voluntarily associate and interact. It then started to engage in expanding, conflicting acts of censorship. Yet, it still wants to remain protected as if it were neutral despite actively modifying content. We would never tolerate a telephone company operator cutting into a call to say the company did not approve of a statement that was just made, or cutting the line for those who did not voice approved positions.
That is why I call myself an “internet originalist.” True neutrality leaves it to individuals to choose who they read, watch or converse with in the media. It is the original fairness doctrine — and it was fair because it was free. Otherwise, we can return to letting politicians dictate who can speak and what can be said. As Hale might note, however, we should start with a prayer.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.