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Conservatives Hated the Fairness Doctrine. Now They Want One for Social Media.

Serious conservatives should reject Senator Hawley's unserious new "fairness doctrine."
by Jim Swift
April 5, 2019
Conservatives Hated the Fairness Doctrine. Now They Want One for Social Media.
Photo illustration by Hannah Yoest. Photo by Getty Images.

About a dozen or so years ago, leading into the 2008 presidential election, conservatives were beating the drum to prevent the so-called “fairness doctrine” from being implemented again in some form, having been repealed in 1987. In 2019, Republicans are leading the way in coming up with a new, worse version of this.

The “fairness doctrine” if you don’t recall, was a regulation administered by the FCC to require “broadcast licensees to cover issues of public importance and to do so in a fair manner.”

Who could be against “fairness,” however defined? There was a tremendous growth in conservative talk radio after the doctrine was repealed in 1987, and reinstating the fairness doctrine was seen as a threat to that. Whether that threat was real or overstated is a debate for another day, red meat conservative voters were sold the notion that leftists wanted to take away Fox News and Rush Limbaugh. Mike Pence, then a member of the House, even sponsored legislation to put a stop to any reintroduction. Back then, the refrain was “if you don’t like it, don’t listen” or, as the Heritage Foundation’s Rebecca Hagelin put it to would-be champions of a new fairness doctrine: “What are you afraid of?”

Granted, the fairness doctrine (as it was known) applied only to over-the-air broadcasters, and not to cable, satellite, or internet purveyors of news, opinion, and commentary. The growth of non-broadcast news helped kill it. When over-the-air broadcasts were bigger players, the scarcity of bandwidth created, in the eyes of regulators, a need for determining a public good that needed to be satisfied to keep and hold a license.

Now, we have social media galore: Twitter, Facebook, TikTok, Instagram, Snapchat, WhatsApp, to name a few. There is no shortage of opinion–conservative or liberal; good, bad, or ugly that you can’t get, for free, in seconds. And social media is where some conservatives think we need a new “fairness doctrine” of sorts.

Senator Josh Hawley recently sent a chilling letter to Twitter CEO Jack Dorsey, encouraging him to submit to a third-party audit of his company’s policies regarding suspending users.

How did we go from a conservative movement that wanted government out of regulating what private companies did to one that thinks now is the time to reconsider getting the government back in the business of regulating how speech is disseminated?

I’ll posit this is less about decency and fairness, and more about posturing for constituents. Here’s part of Hawley’s letter to Twitter:

“Congress has given you a sweetheart deal—immunity from liability for illegal content posted by third parties—because tech companies like yours promised to provide ‘a forum for a true diversity of political discourse,’” the senator wrote in his letter. “Yet your company has repeatedly abused that privilege.”

Could it be that Congress gave Jack Dorsey a “sweetheart deal? Not really the case. Hawley relies on a congressional finding in section 230 of the Communications Decency Act.

The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

First, keep in mind that a congressional finding is different than other parts of a passed law. How to put it? A finding by Congress can be a useful roadmap for courts to interpret their intent, or it can be silly filler expressing the sense of Congress about some supposed fact. Like “the average person complains approximately 15 to 30 times per day, resulting in approximately 4,570,350,000 complaints per day in the United States.” Naturally the 15 to 30 figure pre-dates Twitter.

Another such finding from Sec. 230 is: “The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.” I guess Hawley left that one out because that finding is perhaps debatable nowadays, and he’s seemingly in support of more government regulation over the internet.

Second, did you notice that Hawley is selectively applying this finding just to Twitter, when the actual finding’s text is talking about how the Internet as a whole, not specifically Twitter, offers this forum.

The actual nuts-and-bolts protection for websites like Twitter is Sec. 230 (c)(1):

(c)Protection for “Good Samaritan” blocking and screening

      (1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

That’s not only a good policy, but if we didn’t have it, the Internet would probably be decimated overnight. As Gizmodo’s Dell Cameron observes:

It [Sec. 230] states quite simply that website operators shall not be treated as the publishers of information posted by their users. To wit, Gizmodo cannot be held liable for some harebrained reader posting a defamatory remark in the comment section below.

Now imagine that starting tomorrow that wasn’t the case: Comments are canceled. There isn’t a company on Earth that would allow its users to say anything at all if the company could be dragged into court the next day and sued out of existence. Most of the top 10 most popular websites in the U.S.—Facebook, Wikipedia, Twitter, and YouTube among them—would quickly go bankrupt.

And at Reason, Elizabeth Nolan Brown is correct to suggest that if Hawley and Republicans target Section 230, their fears of conservatives being “purged” would, in fact, be realized at a scale they probably didn’t intend:

Weakening Section 230 works as an all-purpose salve toward authoritarian ends.

Assertions from Republicans that Section 230 stands in the way of them getting more fair online treatment are especially ridiculous. Weakening 230 would require platforms and providers to crack down more tightly on all manners of speech to avoid liability. If conservatives think they’re unfairly targeted for Twitter suspensions and Facebook jail now, just wait until these sites are facing 50 angry state attorneys general and millions in civil fines if they make a wrong call. Erring on the side of more speech doesn’t stand a chance.

Before losing their majority in the House, Republicans in Congress dragged in the Silicon Valley tech bros to answer for their sins, so they could continue to white knight for Diamond and Silk. These hearings were a bit of a circus and a joke. Hawley seems intent on continuing it in the one remaining legislative body Republicans control.

Republicans tended to believe privately owned broadcast entities should be left alone by the government in 2008 when it came to the fairness doctrine, but apparently not in 2019 when it comes to a private website’s decisions. Which is not only sad, but worrisome.

So I’ll repeat our refrains from the old fairness doctrine debate: If you don’t like the service, don’t use it. What are you so afraid of, Senator?

Jim Swift

Jim Swift is a senior editor at The Bulwark.