The Fairness Doctrine Is Bad News

Below is my column in The Hill on the efforts to resurrect the Fairness Doctrine and to extend it to cable programming.

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The doctrine was finally, mercifully rescinded in 1987, but it is now back with a vengeance.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.

 

50 thoughts on “The Fairness Doctrine Is Bad News”

  1. The name the “Fairness Doctrine” convinces some that the doctrine is for fairness. When one examines why, it is because the word ‘fairness’ is incorporated into its label. It’s much easier to make decisions based on labels or headlines then it is to read and think.

    Such labelling is common. A housing development was called “The Woods”. It gives on the feeling that prospective buyers will live in the woods. The woods formerly existed but the development tore down the woods and replaced them with houses and parking lots.

    The fairness doctrine is not fair. It is an attempt to obstruct the free market of ideas because some ideas don’t sell well, but their titles can.

  2. Further evidence of why the American public doesn’t look towards the MSM for “fairness”.

    “Media trust hits new low”

    https://www.axios.com/media-trust-crisis-2bf0ec1c-00c0-4901-9069-e26b21c283a9.html

    “By the numbers: For the first time ever, fewer than half of all Americans have trust in traditional media, according to data from Edelman’s annual trust barometer shared exclusively with Axios. Trust in social media has hit an all-time low of 27%.

    – 56% of Americans agree with the statement that “Journalists and reporters are purposely trying to mislead people by saying things they know are false or gross exaggerations.”

    – 58% think that “most news organizations are more concerned with supporting an ideology or political position than with informing the public.”

    – When Edelman re-polled Americans after the election, the figures had deteriorated even further, with 57% of Democrats trusting the media and only 18% of Republicans.”

    It is also why the MSM news organizations viewership numbers continue to plummet. Sinking viewership = sinking ad revenue.

  3. Freedom of speech.

    Freedom of the press.

    Freedom of religion.

    Freedom of assembly.

    The right to private property.

    And every other conceivable, natural and God-given right and freedom per the 9th Amendment.

    The communists (liberals, progressives, socialists, democrats, RINOs) won’t confiscate one piece of private property, abridge one word of free speech, compel segregation of any assembly, eliminate one belief or infringe on the right to keep and bear one gun before the communists (liberals, progressives, socialists, democrats, RINOs) themselves will require prohibition.

    If the judicial branch and Supreme Court are not going to do their duty, Americans will be forced to.

  4. I’m a clone he’s a clone she’s clone and we are all clone’s according to our non human socialist government. People that is Humans are not all the same. no matter how much you Marx and Engels lovers would like us to commie robots. Eff off.

  5. If the big tech platforms are to be pushed back into the “neutral” zone, that seems like giving a green light to info-terrorism, which I define as using any communication medium to threaten an individual (organization) with physical or reputational harm in order to deter their free pursuit of legal activity and expression.

    It seems we need new law defining info-terrorism, and enforcement with teeth and certainty.

    It may be that this law be grounded in “rapid torts”, a new streamlined legal process with fast response-time. Tech platforms would be obliged to be accountable for identification of bad actors. True identities could be protected as far as what the public can see, but not go so far as to protect bad actors from the follow citizen claiming harm under rapid torts.

    We have to get this right, so that we can have an unfettered, productive debate. That by definition means denuding the debate forum of militant-terroristic tactics with suitable deterrents.

  6. “By the 1980s, media figures complained that the doctrine often led to dropping stories rather than committing the time to air different sides.”

    . . . which, if anything, showed why the “doctrine” was necessary.

    “Moreover, a review showed the doctrine was difficult to enforce and highly subjective in its application.”

    Your point being . . . ?

    “The biggest problem was that it constituted direct government regulation of media.”

    If for the common good to make sure all voice were being heard, then fine. Ideas can be as poisonous as botulism — and, I don’t hear Mr. Turley objecting to that.

    “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.”

    “Mr. Apple, meet Mr. Orange!”

    1. “If for the common good to make sure all voice were being heard, then fine.”

      Power-lusters always use the collectivist premise of the “common good,” or the “voice of the people,” to rationalize the destruction of individual rights. Then they anoint themselves the ‘voice” of the people.

      “Ideas can be as poisonous as botulism . . .”

      That’s true. And one toxic idea is government control of the media. Put whatever color lipstick you want on it (“Fairness Doctrine” is a nice shade) — it’s still censorship.

    2. Mathew at 12:12 pm, “for the common good” once again rears its ugly head. Mathew why don’t you speak more directly. You should have said, “for the common good comrade”. When preaching for the cause you can’t just have one foot in the water. You must grip the doctrine with all your heart and soul to be a true follower. Please be aware that following is the operative word. Surely you will be rewarded with an extra ration of bread for the week if your support is deemed to be adequate. The time has come for choosing what side your on.

  7. Agreed, Turley, on the notion that true neutrality is basically an impossible goal. It will always be shaded by what is popular and accepted at the moment in a broader consciousness. I think I’d differ from you from the jump on this one…, once you maintained that Fox is ‘conservative’ I started looking for ways to laugh out loud. Looks like I found one!

    Fox is in no way conservative if, indeed, conservative is supposed to mean being conservative rather than than being aggressively activist from the right.

    Also, it’s just beyond hilarious that, inside of a year or so, I’ve seen you take stands against anti fascism and fairness. Toss in a hefty dose of anti democracy shade and it makes me come to your blog with a darkly comic lens. It’s awesome if I’m looking for story lines that document the exact symptoms, rationalizations and deceptions that precede the death of fair democratic representation. Yes, you’re not only on that train, Jon, you’re pretty close to being near the driver’s seat, or speaking for the driver’s seat, on that particular demented journey.

    Bright side though? It makes you notable. History will make a place for you for sure.

    Elvis Bug

    p.s. heavy chips sent your way for finding yet another column possibility to rail on another member of your hate list. Jennifer Rubin: charter member. Soon to come, columns on Sally Yates, Eric Swalwell, and Eric Loomis?

    1. “Fox is in no way conservative if, indeed, conservative is supposed to mean being conservative rather than than being aggressively activist from the right.”

      Says Basketball Bugs while ignoring the well known and undeniable fact that MSNBC, CNN, NBC news, CBS news, and ABC news, are all aggressively activist from the left.

      Then there is PBS, NPR, and all of the state and local public broadcasting entities that are aggressively activist from the left.

      Hell. I was listening to some clown on local public radio last week that repeatedly referred to all white people as “white Devils” throughout his 30 minute show that was a non-stop litany of racist commentary towards his fellow Caucasian Americans.

      Just admit that you have no interest in fairness. At least you own it.

      1. Walworths: when the engine stops running you look in the tank with a butane lighter to see if there is any visible gasoline left don’t you? Don’t lie. Your game is obvious.

        EB

        1. Basketball Bugs, once again you show that you have no cogent counter argument when presented with facts. So you resort to comments that are worthy only of an 8th grader.

          Thanks for playing. You lose.

          1. What do I lose, Walworthless? And what relationship does your word salad have to do with facts?

            EB

              1. If by ‘being a man’ you mean trolling, tossing out nonsense word salads and then running from questions as to what the hell you actually mean I guess answer is no, f&*kwidget.

                EB

                1. “nonsense word salads”

                  Now you’re admitting that you either have no reading comprehension, or you’re just a common liar.

                  It’s some of the former, but there is no doubt about the latter.

                  I.E.- You don’t coach high school basketball, nor do you teach anything.

                  You’re just a loser and a troll.

                  1. The way to make the point that you’re not trolling is to stop trolling, Walworthless.

                    EB

                    1. I’ll simplify it for you, Bugs.

                      Are you claiming that MSNBC, CNN, NBC news, ABC news, CBS news, PBS and NPR are all “aggressively activist from the right” or from the left?

                  2. And I find it fascinating you’re so fixated on my having coached basketball for 15 years. I’m honored. Believe me, people at away games were much more incisive with their criticisms than the ones you’ve managed to grunt out on this blog.

                    Hell, back when I played I ran the point and on one of our most popular plays in college had me kick to the wing, screen away and set up a post/repost 2 man game in the corner with our drop step big. Unfortunately, being in the corner at this one team’s gym meant my being within spitting distance of an upper level running track and (you guessed it!!) I used to get spit on with regularity to break my concentration when I rose for a jumper beyond the arc…

                    Let’s just say you’re going to have to up your game, Walworthless.

                    1. Anon at 2:53 pm. A builder of stone wall, a basketball coach for 15 years and a Russian history student in Washington D.C. We are rapt with attention awaiting the next revealing on the line of Anons’ occupations. How did he ever fit in the learning of the intricacies of basketball with all his other occupations. There’s a rumor that he was also a chess hustler at Times Square.

                    2. TIT. Always. Forgot to tell you I’m also an amateur astronaut. But hey, I’ll keep quiet about it because I don’t want to ruin your sexy time with Walworthless.

                      EB

                    3. Bugs, you’re a common troll who is lamely attempting to deflect away from this very accurate statement:.

                      “MSNBC, CNN, NBC news, CBS news, and ABC news, are all aggressively activist from the left.

                      Then there is PBS, NPR, and all of the state and local public broadcasting entities that are aggressively activist from the left.”

                      You have no counter argument that disproves that statement of fact.

                      So like all common trolls you replied with a sophomoric ad hominem personal attack, instead of addressing what I wrote.

                      You’re obviously incapable of acting like an adult. Yet you claim to be a guy who coaches and teaches high school kids?!

                    4. Walworthless:

                      I can only address something as factual when actual cases are brought up for viewing. No, sweeping generalizations don’t count as fact with me. ““MSNBC, CNN, NBC news, CBS news, and ABC news, are all aggressively activist from the left.” That tells me nothing but what you think of something, doesn’t make it factual until you cite a story and prove how it fits your observation. Each one of those entities covers stories with their own editorial bent and your not being able to tell the difference between speaks to pretty large interpretive problems on your end.

                      And have you not noticed in my posts that i say i “coached” for 15 years? Past tense. Not that it matters because, a) I suspect your reading comprehension can’t crawl past your internal bias, and b) you trolled me (like always) in this thread. Track back up and notice I responded to Turley, not to you. You jumped in with insults right away. Yes, I respond back to you in kind — it’s a definite weakness of mine that I jump into it with the trolls on this site. I should just ignore you because you’re not bringing anything of substance to a discussion.

                      Most importantly, I don’t owe you any explanation at all, so I should follow advice given to me by others here by not feeding the troll. See ya.

                      EB

                    5. Anonymous @ 10:50. Thanks! I was aware of that story & Georgetown did really well at the big east tourney this year. Patrick is a legend for sure, and the funny thing I think is, like, no career is complete until you basically move mountains and then live long enough not to be recognized anymore. In a weird way I sort of feel sorry for the person that didn’t recognize him.. Lol.

                      And my players did like me most of the time. I don’t take credit for it because the best things i did were knowing a bunch of basketball and trying to be present. Honestly, I learned more from them and they were certainly more mature than me often. That’s my secret and I’ll never tell. Ha.

                      EB

    2. I got a hate list https://www.forbes.com/forbes-400/

      a handful of them are ok but let’s not miss the forest for the trees. the group is collectively our tyrant

      they own the media and their employees sing the tune called for by the head table along the entire spectrum and that includes FOX which is a bastion of conservative individualism and all that jive, mom and apple pie, whatever. Which means, in a nutshell, the sacrosanct nature of property rights and contracts, lower taxes, slow moving and ineffective resistance to the other end of the spectrum., worrying about socialism, even as it’s all around us already, making money for the billionaires every day, and other weak sauce that will never threaten the powers that be

      wake me up when somebody smashes Silicon Valley into a thousand pieces with antitrust and goes after the major networks too. att owns cnn, comcast owns nbc, etc, these are massive market accumulations which need to be broken up for the good of society

      Fox is 9/10 on the list, comparatively smaller on the list of big media market caps. Fox is a boogeyman for the most part. Look at these other players for who needs serious government attention.
      https://www.investopedia.com/stock-analysis/021815/worlds-top-ten-media-companies-dis-cmcsa-fox.aspx

      At the same time, if the tyranny finds a way to shut Fox up, well, good, because the American people need to understand, conservative timidity is never going to accomplish much. Maybe once populists are completely silenced, then the safety value will be broken, the pressure will build, and then there will be a real insurrection worth its name.

      Sal

      1. Sal, once you start shutting people up where does it end. Free speech will not stand a dabbling for one cause or the other. Once it’s gone getting it back may not be possible. If the control of speech happens the authorities will be scouring this forum to see what Sal has to say. What is amazing is that we are having a discussion about a limiting of a Right given to the American citizen by the very first amendment of the Constitution. What occurrences must have happened in English history that would bring our founders to declare freedom from the oppression of religion and free speech at the very beginning of our founding document. It was because the Crown required the worship of the religion of the state and that the citizenry only speak the words allowed by the Monarchy. I think I’ll take a pass on your little, poorly thought out possible alternatives.

        1. What are you talking about free speech for? Breaking up Facebook and Twitter and Google into about 5 different companies each would greatly assist free speech.

          You’re the one who poorly thinks out your alternatives TIT. What i propose above would be for the good of society

          See, even some guy at Facebook agrees. Sal sar

    3. Soon to be Soro’s, Hillary for sure, and anybody that dares to say anything bad of the Dear Leader.

    4. Elvis Bug, I was really kind of neutral until you defended Jenifer Rubin. She said “Republicans should be burned to the ground”. and somehow you have come to her defense. Can you imagine the searing heat as the skin on your arms begins to curl. The same words were probably uttered in front of the German ovens and yet you can somehow excuse such exclamations. Either your support of Rubin is amazingly naive or is the subconscious true design of your final solution.

      1. What about my observation of Rubin being on Turley’s hate list made you run with it and say i was supporting her versus not supporting her? Be specific please. I love to witness true mental pathology in detail.

        EB

    1. @Ti317: This demonstrates the absurdity of the “fairness” concept. Let the media, et al., do as they wish. The reader/listener/viewer will decide for himself.

  8. “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.”

    Well said.

  9. Turley’s predictable screed against the Fairness Doctrine is just dumb. No Jonathan, cable news was not covered by the Fairness Doctrine since it applied to broadcast TV and radio (not CNN and MSNBC), you know, over the public airwaves. Cripes. How does this kind of drivel get published?

    The vote to end the doctrine on the FCC was 4-0, with 3 Reagan appointees and 1 Nixon. Phony 1st amendment advocates like JT have no problem with large media empires running 24/7 right wing radio programming across the country and TV empires like Sinclair doing the same with local TV stations.

    1. Wow with the 9:44 Post by AnonJoeFriday you would think that CNN and MSNBC either have no influence at all or do not really exist. The application of a newly proposed fairness doctrine is not being brought forth on a limited basis. The only way to enforce such a doctrine would be to end the broadcasting license of the offender. Imagine a time when both houses of Congress and the Presidency are controlled by the Republicans and they are calling the shots on who’s fair and who’s not. Those on the left should shudder at the thought. When, not if it happens but when it happens you will have brought it on yourselves and you will deserve the fruits of your labor. Then we will all say thanks AnonJoeFriday it couldn’t have happened without you.

  10. You are one of the few who say we need to get rid of 230. So many people say it will be worse. I think as you do; we have to do away with it and then enforce when they editorialize on either side.

  11. Turley is hilarious, he mentions CNN and MSNBC and other liberal media outlets as not showing opposing views, but lightly skims past Fox News.

    I find it disingenuous that Turley is against the fairness doctrine due to his stance on what free speech should be. He often claims the only way to counter misleading claims and misinformation, being free speech, with more free speech. The fairness doctrine would be that “more free speech”. Have the two opposing views discussed back to back and let listeners of readers decide.

    Fox News is very well known for trotting out hugely misleading claims, and so does CNN or MSNBC, but with fewer instances.

    Conservatives think they are being “censored” when they’re only being criticized and demand “big tech” to let them spew their tripe. Problem is “big tech” is not obligated to carry their message anymore than traditional media is. Plus Turley confuses internet service providers who only facilitate access to the content people use with internet platforms which are private companies who require everyone signing up to agree to certain terms and conditions. These companies are not like “telephone companies”, ISP’s are.

    The “censorship” conservatives harp about is perfectly constitutional and legal simply because the constitution’s prohibition on censorship applies only to government, not private companies. People who “agree” to the terms and conditions effectively give these companies permission to “censor” them. If you don’t like being “censored” don’t sign up. It’s pretty simple.

    The fairness doctrine would have allowed a program to follow rush Limbaugh’s and presented an opposing view. If people don’t want to hear it they can simply turn off the radio or change the station.

    The fairness doctrine would also apply to liberal media the exact same way which would allow conservatives to present their opposing views. The result would be that accusations of media being biased would no longer apply.

    1. Cnn and msdnc far fewer instances? Give me a break!!! 5 years of the Russia hoax. You are either lying or delusional.

        1. Svelaz, you don’t know what you are talking about. You don’t even know who you are talking to. The Anonymous above is not SM.

          In any event discussing things with you is meaningless. When proven wrong you run away to repeat your same statements over and over again.

          The other Anonymous was correct. The Russia hoax existed and every time you try and prove it you fail while stating mistruths. That makes you into a cartoon character that one laughs at instead of discusses things with.

          1. S. Meyer, you switch handles more often than a cheating lover. Any anonymous would be you.

            Discussing things with me is difficult for you because most of your posts are easily refuted. It’s that simple.

            1. Svelaz, that is not true.

              I use S. Meyer for almost everyone. Occasionally for you I use anonymous with SM as a signature because you are posting cr-p so I believe the discussion is worthless. I provide Anonymous the Stupid either with S. Meyer or when he gets really stupid only with a generic anonymous.

              It’s pretty easy to understand though I recognize it is more difficult for you.

  12. Nicely done. But perhaps we should all be careful in citing Justice Black, lest he be cancelled.

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