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Stephen Gottlieb: A Fairness Doctrine For The Internet

What will it take to restore a responsible, truth-telling, media?

I’ve talked with you about how section 230 of federal communications law protects fraud and other lies. Publishers, like newspapers, magazines, TV and radio stations have been responsible for the falsehoods they broadcast and could be sued for circulating false claims on their systems. But that rule was removed for much of the internet in its early days. Eliminating publisher responsibility for interactive computer services magnified the outrageous nonsense on the internet.

Social media companies are deciding whether they can carry particular posts or speakers. They’ve been trying to address the best known and most egregious posts. But removing section 230 would impose penalties for falsehood and oblige websites to respect the facts.

There was another rule that brought some decency and civilization to broadcast media. It was called the fairness doctrine. As summarized by the U.S. Court of Appeals:

[T]he fairness doctrine impose[d] a double obligation on the broadcast licensee … [to] devote a substantial portion of available time to the discussion of 'controversial issues of public importance.' … [And when presenting such issues] to present responsible conflicting views.”

The requirement “to present responsible conflicting views” used to be stated as a balanced presentation of conflicting views. Wikipedia added “honest” and “equitable” to balanced – certainly a decent aspiration.

In the de-regulatory mood of the 80’s and 90’s, the FCC retracted the rule but the statutory authorization stands for application to broadcast media.

Contemporary mass media have continually heightened the polarization of their presentations. And contemporary social media apply formulas that lead us to posts that Facebook and others think we’d like based on what we’ve clicked on before. That feeds and magnifies our prejudices. It’s an excellent financial model but it does it’s best to keep the left separate from the conservatives, let alone the conspiracy theorists and the white supremacists and vice versa. If polarization is the problem, social media should not have the power to point us at material in a partisan and one-sided way.

It’s not clear that the fairness doctrine could be revived or that the Court wouldn’t reverse or narrow its prior decisions so as to defang it. But my point is that this is another way we’ve polarized our country by changing legal rules that had worked for quite a long time. As I’ve described before, political primaries push both parties toward their extremes and away from each other, a result of progressive changes years ago, the Supreme Court recently changed rules that apply to political contributions, conservatives are changing rules to keep anyone who won’t vote Republican away from the polls, and gerrymander those who manage to vote in order to lock in legislative majorities. All those legal changes help polarize the country. The result is a violent clash, fueled with claims of gun rights even in the House of Congress and at other public offices and political events.

We’ve created an alt-wrong mob. People in mobs feed on each other’s support, lose their minds, give us the dangerous nonsense of outlandish and disproven conspiracy theories and lose their ability to cope with facts. Law has to be yanked back to the side of good sense, peace and values befitting a democratic country. That said, my confidence in the marketplace of ideas has taken a jolt in the wake of the Trump era.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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