Here Come The Censors

The Fairness Doctrine is coming back into fashion again — that should worry everyone who cares about free speech

Anand Girdharades asked on Twitter if Fox News should be allowed to exist. Alex Stamos questioned why cable service providers would keep broadcasting Newsmax and OAN after the Capitol riot. Max Boot wrote a piece for the Washington Post calling on Biden to “reinvigorate” the FCC in order to reign in Fox News, stopping just short of calling for the Fairness Doctrine to be reinstated. On MSNBC, Mika Brzezinski accused Facebook of “destroying the country”, with Joe Scarborough adding that “The algorithms at Facebook actually promote this extremism.”

Ladies and gentlemen, calls for censorship are coming back into vogue.

The latest talking point is reinstating the Fairness Doctrine, an FCC policy introduced in 1949 to ensure that broadcast license holders presented matters of “public interest” and to air contrasting viewpoints on those matters. Both sides of the political spectrum have latched on to this idea but for different reasons; Democrats think that the Fairness Doctrine would force outlets like Fox News, Newsmax, and OAN to present news in a more balanced fashion, Republicans think they can use the policy to force social media companies to host an equal amount of conservative and liberal content.

Thing is, both sides are misinterpreting what the Fairness Doctrine required and what outlets it pertained to. Both Democrats and Republicans seem to be confusing the Fairness Doctrine with the equal-time rule, which stipulated that broadcasters had to offer equal airtime to political candidates who requested it. The Fairness Doctrine did not mandate that opposing viewpoints be given equal airtime; under the policy as written Fox News could host an hour-long block of Democrat-leaning content at 3 am while devoting the other 23 hours of the day to their preferred content and be in compliance. Social media platforms would also be in compliance — every platform allows contrasting political viewpoints to be publicly expressed.

An obvious obstacle to reimplementing the Fairness Doctrine is the 1st Amendment. Cable news and the internet do not fall under the “public broadcast” category, therefore the Fairness Doctrine as written would not apply to those mediums. The FCC, when voting to abolish the Fairness Doctrine in 1987, acknowledged the policy violated the 1st Amendment. Any attempt to reinstate the Fairness Doctrine would be met with legal challenges citing the stance the FCC took when it voted down the policy, I don’t see how a case for reinstatement would survive such a challenge.

The most worrying blind spot those who propose a return of the Fairness Doctrine seem to have is how the policy was used by the government as a censorship tool to pressure outlets into not airing content critical of its activities. As Paul Matzko notes, several presidents used the Fairness Doctrine to stamp out content; FDR used it to threaten outlets that ran content critical of the New Deal, Kennedy used it to punish his conservative radio critics, and Nixon used it against critics of the Vietnam War and to attempt to keep the Watergate scandal under wraps. 1st Amendment and free speech advocates don’t have to speculate as to how the government could use a policy like the Fairness Doctrine to censor content, the history of how it was used to that end is evidence enough.

I understand the concerns of those who feel that media and tech companies have too much power over speech, and I would gladly have a good-faith discussion with anyone who wants to hash out where the lines between freedom of speech and freedom of association should lie. The answer, however, is not and cannot be giving the government the power to dictate what content is deemed necessary and what content is suppressed by the threat of losing the ability to broadcast. A policy like the Fairness Doctrine is too ripe for abuse, as history shows, and should never be considered an option again.

Because if you don’t like the choices that private companies make in regards to what content they choose to allow on their platform, you are going to hate it when the federal government gets involved in that decision-making process.

Originally published at https://jenmonroe.substack.com.