On the Feasibility of a 21st Century Fairness Doctrine

Curator's Note

Increased concern over partisan media divides and arguments about fake news and the nature of truth have led some to call for a new Fairness Doctrine. This doctrine was a Federal Communications Commission (FCC) policy from 1949 to 1987 and required broadcasters to present contrasting views on controversial public issues. The short video above concisely summarizes the main arguments supporting a return of the Fairness Doctrine. However, it does not address some of the challenges associated with crafting such legislation. 

The video rightly points out that the Supreme Court upheld the constitutionality of the Fairness Doctrine in the Red Lion Broadcasting Co., Inc. v. FCC case of 1969, due largely to the scarcity of the spectrum used for public broadcasting. Yet, as part of a self-assessment in the 1980s that was used to justify the elimination of the Doctrine, the FCC argued that scarcity no longer applied in the era of cable and satellite television. Were a new Fairness Doctrine implemented, this legal debate would likely make its way back to the Supreme Court. The assessment also concluded that the Doctrine had a chilling effect on the topics broadcast networks decided to cover.

Although there has been significant conglomeration of cable and satellite station ownership, this platform has historically been held to different legal standards than broadcast networks. Additionally, we now have even more ways of debating issues of public concern via the internet, especially through a variety of social media platforms. Therefore, it would be an open question as to whether the scarcity argument used to support the constitutionality of the Fairness Doctrine in the Red Lion case would still be applicable today.

Finally, it offers an interesting thought experiment to imagine how a 21st Century Fairness Doctrine might apply to the internet. Eli Parser argued in 2011 that algorithmic filters used by search engines and social media platforms are often designed to show the content a user is most interested in, which can create a “filter bubble” of similar views that are hard to escape without very deliberate action. Some third-party organizations such as Read Across the Aisle have developed tools to pop that bubble by linking or inserting articles with divergent views into users' feeds, but these do not appear to be widely used. What would be the legal and ethical implications of a new Fairness Doctrine that requires social media and search engine algorithms to include these opposing viewpoints in every user’s Timeline or News Feed?

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