Are "Fairness Doctrines" Helpful or Possible?

“Deplatforming” is among the latest problems to arise in the content business. But some would say there are troubling issues around bullying or misinformation. All generally pose issues about First Amendment freedom of speech, with the caveat that the First Amendment has been held to apply only to the federal government. 

There is, so far, no generally recognized individual “right to free speech” on any social media platform, for example. Nor can private firms be prevented from espousing their own views, with no regard for balance or “ fairness.”

In 1949 the Federal Communications Commission promulgated the fairness doctrine, which required the holders of broadcast licenses to present controversial issues of public importance and to do so in a manner that was honest, equitable and balanced. It was abolished in 1987. 

The objective was to encourage a “diversity of viewpoints” in broadcast media. Some seem to believe a new fairness doctrine would be a good thing. Maybe not. 

In the internet era, it is hard to make the argument that the ability to express opinions requires any help. There is no scarcity of voices or platforms. 

“But we already see some of the problems with maintaining “honesty, equal and balanced” discussion. Who decides what is honest? How is balance maintained. Nor is it simple to operationalize “balance.”

The old adage about “two sides to every argument is flawed. There always are multiple “sides.” 

As a practical matter, how would the licensing body determine what “fairness and balance” is, in practice? Who can define “public interest?” 

And, as we saw when the fairness doctrine was enforced, how will speakers change their behavior to minimize the impact? One way broadcasters limited their obligations was to reduce, not increase, the amount of political content they carry. 

So rather than more political speech “in the public interest,” there was less coverage of political issues. Also, as television has matured, it has become a medium organized around entertainment, not “public affairs.” More regulation would likely result in less coverage, not more, as advocates of a new fairness doctrine might argue is necessary. 

There is a deeper issue: whose rights are we talking about? Until the era of broadcast media, it has been “speakers” who had First Amendment rights of free speech. The fairness doctrine flipped that on its head, being promulgated because it was viewers and listeners who had the rights. 

It is hard to manage a protection or promotion process for audiences, rather than speakers. Nobody knows what the audience “needs or prefers” in a broad sense. So some referee--some government entity--gains control over political speech, which is precisely what the First Amendment is designed to prevent. 

Promoting or protecting freedom of speech is a tough issue, but fairness doctrines are unlikely to help. Many problems are caused by private firms or individuals and groups seeking to silence some views.

However well-intentioned, those efforts often are arguably misguided. “Cancelling” speech does not promote freedom or a fuller airing of views. “Fairness” doctrines might sound good, but have not worked and arguably are not necessary at a time when so many ways exist for people to “speak.” 

There are, one might argue, many problems with political culture. Fairness doctrines will not fix those problems.