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  • Writer's pictureJustin McBrayer

RIP: Fairness Doctrine

There are no obvious solutions to the fake news problem. Or, better, the obvious solutions are bad ones. The bluntest instrument is full-on government censorship: let the authorities decide what's true and punish those who deviate from the truth. That's a disaster of such significance that it's worth a separate discussion (see here).

However, there are lots of alternatives that fall short of full government censorship, and yet apply some kind of power of the state. You can regulate a behavior without banning it altogether. For many years, the United States took just such an approach to fake news. The rule was called the Fairness Doctrine.

As the 20th century got rolling, radio stations were taking off across the country. But it was a bit like the Wild West: there were no rules about who could transmit on any given frequency and no rules about what you could or couldn't say on the air. To bring some order to the chaos, the federal government approved the Radio Act of 1912 which gave the feds the authority to grant licenses for particular frequencies.

For legal reasons that aren't relevant here, the Radio Act of 1912 was superseded by an updated version in 1927, and that version included an important criterion for handing out radio licenses. In order to receive a license, a radio station had to demonstrate that its broadcasts were "in the public interest, convenience, or necessity" (necessity for what, the law doesn't say). This set the stage for thinking about the airways as public goods. Private companies could broadcast over those airways, but only if they provided a benefit to the public.

Passage of this new law happened during the absolute heyday for radios. In 1920, less than 1% of Americans had a radio in the house. Ten years later, most of them did. To handle the boom in both stations and consumers, the federal government established the Federal Communications Commission (FCC) in the mid-1930s. The FCC had authority to regulate this the vast radio industry as well as nascent TV technology.

And the FCC soon found itself in a pickle. Radio station owners were starting to run their stations like newspaper editors ran their papers, which is to say, they were taking sides on controversial issues, lobbying for political favorites, and generally editorializing on the events of the day in partisan ways. Newspapers in the United States have always done this. You'd be shocked to read the kind of stuff that regularly filled 19th century newspapers. There's rarely even a hint at objectivity when it came to controversial issues. Newspaper owners regularly used their papers to influence local politics and matters of national debate, even when doing so required that they be less than truthful (so-called yellow journalism).

Now it's one thing for that kind of thing to be in print: at least you can look away. It's quite another thing for partisan demagoguery to be streaming from every radio on your block, especially if your radio can't pick up a signal from an opposing radio station. And so in 1949 in response to complaints and lawsuits, the FCC adopted what's come to be known as the Fairness Doctrine.

The Fairness Doctrine said that when it came to controversial issues, it was in the public's interest for radio stations to devote some airtime to a discussion of those issues AND do so in a fair way (hence the name 'fairness' doctrine). Fairness in this sense meant letting both sides of an issue have a say. If you want to run a broadcast opposed to mandatory school integration, that's fine as long as you also provide pro-integration coverage, too.

The justification for the Fairness Doctrine goes back to the licensing requirement established by the Radio Act of 1927: all stations are using public property (the airwaves) and hence should act in the public interest. The FCC saw itself as a regulator of a limited resource (there are only so many radio frequencies) and wanted to dole out that resource in a way that served the broader public. And in a democracy, serving the public meant giving them decent access to both sides of controversies so that they could form educated views and use that knowledge in their personal lives and the voting booth.

And so the Fairness Doctrine went into effect for anyone using the public airways. That obviously covered radio stations, but early TV stations used the airways, too. That means the big three legacy TV stations (ABC, CBS, NBC), all of which were to become the powerhouse of news media in the late 20th century, operated within the Fairness Doctrine framework.

In the short term, the Fairness Doctrine worked as intended: it tamped down political one-siderism. But it also had the unintended effect of suppressing or just ignoring controversy. Rather than risk the ire of the FCC for not being suitably fair, many radio stations simply avoided controversial topics altogether (which, strictly speaking, flouted the doctrine but was also unlikely to result in a punishment).

Worse, for the last half of the 20th century, broadcasters and newspapers played by different rules. Newspapers could print anything they wanted to print (short of defamation). Controversy or no controversy, both sides, or one side: newspapers and magazines got to choose. Radio and TV, on the other hand, had to comply with the Fairness Doctrine. As you might imagine, broadcasters chaffed under this increased scrutiny.

Free speech purists criticized the Fairness Doctrine from the outset: how could the government compel speech of this sort? But that philosophical argument didn't carry the day. Instead, the real undoing of the Fairness Doctrine was technology.

In 1980, Ted Turner launched the Cable News Network (CNN). And guess what? CNN was piped into your house via an underground cable. That's right: no antenna required. That means CNN was exempt from the Fairness Doctrine. And why shouldn't they be? They weren't using the public airways to conduct their business, so there was no scarce resource for the federal government to allocate and no quid-pro-quo in the form of public interest. CNN could televise whatever they wanted, fairness be damned.

Satellite TV stations were next, and there were several options available by the mid-80s. Again, no broadcasting, so no Fairness Doctrine. The deck was getting tilted ever further against the legacy broadcasters who were forced to compete in the commercial market against the likes of cable and satellite stations but play by a different set of rules.

To put it mildly, the Reagan administration was not a fan of the Fairness Doctrine. Some in the administration were concerned about the chilling effect the Fairness Doctrine had on content, while others thought it ran contrary to the free speech protections in the first amendment. But more than anything else, the Reagan administration saw the commercial writing on the wall: media technology had outgrown broadcasting. And without the use of public airways, the Fairness Doctrine lost its justification. In 1987, the FCC formally voted to abolish it.

The very next year, conservative commentator Rush Limbaugh was syndicated nationwide. Anyone counting himself a Dittohead knows that would have been impossible under the Fairness Doctrine. Conservative talk radio exploded across the country, with leftist channels not far behind.

The truth is that if Reagan hadn't killed the Fairness Doctrine, the internet would have. It would be utterly ridiculous to have NBC's evening news comply with federal guidelines on controversial content while could do whatever it liked. And as radio and TV audiences dwindled, the Fairness Doctrine would have made less and less of a difference.

In light of today's serious fake news challenges, some are talking about bringing the Fairness Doctrine back. Rarely do I give a talk about fake news before someone in the audience suggests doing exactly that. Bringing back the Fairness Doctrine would weaken the partisan media landscape by requiring media companies to include alternate voices on controversial issues.

To their credit, the people who want the Fairness Doctrine back are right about one thing: the era in which the Fairness Doctrine reigned was a more fact-based, sane media environment than the one we're in now. That was the era in which most Americans watched the 6:00 news and learned roughly the same things in roughly the same, non-partisan way. It was the era in which Walter Cronkite was the voice of America. And all was right with the world.

I'm willing to grant that the good old days of media information overlapped with the Fairness Doctrine years. But it wasn't the Fairness Doctrine that explained the epistemic virtues of those times. It's better explained by the technology of the times.

The big three legacy TV networks were broadcast from coast to coast. That means they reached just as many conservatives as liberals. The channels couldn't afford to alienate either of those audiences, so they had strong commercial incentives to hew to the political middle. That's what gave us fact-based reporting and Walter Cronkite. The fact that the Fairness Doctrine was in effect was purely accidental. The best explanation for the reliability of media in those days was a lack of media choice.

As soon as consumers have a choice in media, the epistemic quality of the news ecosystem goes down. Liberals go to MSNBC while conservatives go to Fox (and those dangling on the right wing of the spectrum go to Newsmax). In this environment, Fox isn't trying to capture the entire American audience. Instead, it's aimed at a particular political niche. As long as you get that niche what it wants to hear, you'll turn a profit. And since news consumers almost never want to hear the truth, the whole truth, and nothing but the truth, there are a lot of different news niches that news companies can occupy while making a profit.

That means bringing back the Fairness Doctrine wouldn't even make a dent in the present fake news epidemic. And it would be unjust in at least two ways.

First, the Fairness Doctrine, at least as originally conceived, only applied to broadcast media. That's politically bizarre. What's the difference between writing a message in pen and ink, writing a message in an email, relaying a message over radio, or recording a message on social media? How could the government possibly justify compelling speech in one case but not the others? The Fairness Doctrine claimed that the TYPE of media was relevant to whether the government could compel speech. But it's bizarre to say that the content you're watching on ABC should be regulated by the government but the content you're watching on CNN should not.

To avoid this objection, you might just say that a just policy would require a hearing of both sides of a controversy in ALL media types, not just broadcast messages. But that's going from the frying pan into the fire: now the government can compel a Facebook influencer to write about the other side of controversial issues? Can it do the same for people writing magazines, recording podcasts, and typing out newsletters? That's surely going too far.

The second objection is worse. The Fairness Doctrine required broadcast media companies to allocate time for both sides of controversial issues. Can you imagine what that would look like in this day and age? Every time CBS ran a story on the Biden election, they would have to allocate time for election deniers. Every time PBS ran a story about the COVID vaccine, they would have to allocate time for anti-vaccine activists. And every time your local radio station did a story about the effects of climate change, they would have to run a similar story from the point-of-view of climate change skeptics.

The problem is that 'controversial' doesn't mean 'equally reasonable'. When it comes to issues like climate change, the 2020 election, and the safety and efficacy of the COVID vaccine, 99.9% of the evidence is on one side of the issue and .01% of the evidence is on the other. And yet they are hugely controversial (at least in the States).

All this means the government mandating both-siderism won't have the epistemic benefits many observers of fake news suppose. In fact, that's likely to make the problem worse by highlighting contrarian views even when they are weak on reason but strong on emotion. Responsible media tracks the evidence, not the controversy, and the former isn't the same as the latter.

So, I'm glad that the Fairness Doctrine is dead. Rest in piece, Fairness Doctrine. We're better off without you.

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