On December 13th, I will be participating in an Atlas Network panel on, “Big Tech, Free Speech, and Censorship: The Classical Liberal Approach.” In anticipation of that event, I have also just published a new op-ed for The Hill entitled, “Left and right take aim at Big Tech — and the First Amendment.” In this essay, I expand upon that op-ed and discuss the growing calls from both the Left and the Right for a variety of new content regulations. I then outline the classical liberal approach to concerns about free speech platforms more generally, which ultimately comes down to the proposition that innovation and competition are always superior to government regulation when it comes to content policy.

In the current debates, I am particularly concerned with calls by many conservatives for more comprehensive governmental controls on speech policies enforced by various private platforms, so I will zero in on those efforts in this essay. First, here’s what both the Left and the Right share in common in these debates: Many on both sides of the aisle desire more government control over the editorial decisions made by private platforms. They both advocate more political meddling with the way private firms make decisions about what types of content and communications are allowed on their platforms. In today’s hyper-partisan world,” I argue in my Hill column, “tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day — like property rights, free speech and editorial independence — become disposable. These are things we take for granted until they’ve been chipped away at and lost.”

Despite a shared objective for greater politicization of media markets, the Left and the Right part ways quickly when it comes to the underlying objectives of expanded government control. As I noted in my Hill op-ed:

there is considerable confusion in the complaints both parties make about “Big Tech.” Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.

This makes life very lonely for free speech defenders and classical liberals. Usually in the past, we could count on the Left to be with us in some free speech battles (such as putting an end to “indecency” regulations for broadcast radio and television), while the Right would be with us on others (such as opposition to the “Fairness Doctrine,” or similar mandates). Today, however, it is more common for classical liberals to be fighting with both sides about free speech issues.

My focus is primarily on the Right because, with the rise of Donald Trump and “national conservatism,” there seems to be a lot of soul-searching going on among conservatives about their stance toward private media platforms, and the editorial rights of digital platforms in particular.

In my new  Hill essay and others articles (all of which are listed down below), I argue there is a principled classical liberal approach to these issues that was nicely outlined by President Ronald Reagan in his 1987 veto of Fairness Doctrine legislation, when he said:

History has shown that the dan­gers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and compe­tition that the First Amendment sought to guarantee.

Let’s break that line down. Reagan admits that media bias can be a real thing. Of course it is! Journalists, editors, and even the companies they work for all have specific views. They all favor or disfavor certain types of content. But, at least in the United States, the editorial decisions made by these private actors are protected by the First Amendment. Section 230 is really quite secondary to this debate, even though some Trumpian conservatives wrongly suggest that it’s the real problem here. In reality, national conservatives would need to find a way to work around well-established First Amendment protections if they wanted to impose new restrictions on the editorial rights of private parties.

But why would they want to do that? Returning to the Reagan veto statement, we should remember how he noted that, even if the First Amendment did not protect the editorial discretion of private media platforms, bureaucratic regulation was not the right answer to the problem of “bias.”  Competition and choice were the superior answer. This is the heart and soul of the classical liberal perspective: more innovation is always superior to more regulation.

For the past 30 years, conservatives and classical liberals were generally aligned on that point. But the ascendancy of Donald Trump created a rift in that alliance that now threatens to grow into a chasm as more and more Right-of-center people begin advocating for comprehensive control of media platforms.

The problems with that are numerous beginning with the fact that none of the old rationales for media controls work (and most of them never did). Consider the old arguments justifying widespread regulation of private media:

• “Scarcity” was the oldest justification for media regulation, but we live in the exact opposite world today, in which the most common complaint about media is the abundance of it!
• Conversely, the supposed “pervasiveness” of some media (namely broadcasting) was used as a rationale for government censorship in the past. But that, too, no longer works because in today’s crowded media marketplace and Internet-enabled world, all forms of communications and entertainment are equally pervasive to some extent.
• State ownership and licensing of spectrum was another rationale for control that no longer works. No digital media platforms need federal licenses to operate today. So, that hook is also gone. Moreover, the answer to the problem of government ownership of media is to stop letting the government own and control media assets, including spectrum.
• “Fairness” is another old excuse for control, with some regulatory advocates suggesting that five unelected bureaucrats at the Federal Communications Commission (or some other agency) are well-suited to “balance” the airing of viewpoints on media platforms. Of course, America’s disastrous experience with the Fairness Doctrine proved just how wrong that thinking was. [I summarize all the evidence proving that here.]

That leaves a final, more amorphous rationale for media control: ” gatekeeper” concerns and assertions that private media platforms can essentially become “state actors.” In the wake of Donald Trump’s “de-platorming” from Facebook and Twitter, many of his supporters began adopting this language in defense of more aggressive government control of private media platforms, including the possibility of declaring those platforms common carriers and demanding that some sort of amorphous “neutrality” mandates be imposed on them. But as Berin Szóka and Corbin Barthold of Tech Freedom note:

Where courts have upheld imposing common carriage burdens on communications networks under the First Amendment, it has been because consumers reasonably expected them to operate conduits. Not so for social media platforms. [. . . ] When it comes to the regulation of speech on social media, however, the presumption of content neutrality does not apply. Conservatives present their criticism of content moderation as a desire for “neutrality,” but forcing platforms to carry certain content and viewpoints that they would prefer not to carry constitutes a “content preference” that would trigger strict scrutiny. Under strict scrutiny, any “gatekeeper” power exercised by social media would be just as irrelevant as the monopoly power of local newspapers was in [previous Supreme Court holdings].

Put simply, efforts to stretch extremely narrow and limited common carriage precedents to fit social media just don’t work. We’ve already seen lower courts declare that recently when blocking the enforcement of new conservative-led efforts in Florida and Texas to limit the editorial discretion of private social media platforms. If conservatives really hope to get around these legal barriers to regulation, what would be needed would be a more far-reaching strike at the First Amendment itself. That would entail a jurisprudential revolution at the Supreme Court — reversing about a century of free speech precedents — or an some sort of an effort to amend the First Amendment itself. These things are almost certainly not going to occur.

But, again, this hasn’t stopped some conservatives from pitching extreme solutions in their efforts to regulate digital media at both the state and federal level. I discuss these efforts in previous essays on, “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality,“ “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet,“ and “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’.“ Perhaps some Trump-aligned conservatives understand that these legislative efforts are unlikely to work, but they continue to push them in an attempt to make life hell for tech platforms, or perhaps just to troll the Left and “own the Libs.”

On the other hand, some conservatives seem to really believe in some of the extreme ideas they are tossing around. What is particular troubling about these efforts is the way — following Trump’s lead — some conservatives, including even more mainstream conservative groups like the Heritage Foundation, are increasingly referring to private media platforms as “the enemy of the people.” That’s the kind of extremist language typically used by totalitarian thugs and Marxist lunatics who so hate private enterprise and freedom of speech that they are willing to adopt a sort of burn-the-village-to-save-it rhetorical approach to media policy.

And speaking of Marxists, here’s what is even more incredible about these efforts by some conservatives to use such rationales in support of comprehensive media regulation: It is all based on the “media access” playbook concocted by radical Leftist scholars a generation ago. As I summarized in my essay on, “The Surprising Ideological Origins of Trump’s Communications Collectivism“:

Media access advocates look to transform the First Amendment into a tool for social change to advance specific political ends or ideological objectives. Media access theory dispenses with both the editorial discretion rights and private property rights of private speech platforms. Private platforms become subject to the political whims of policymakers who dictate “fair” terms of access. We can think of this as communications collectivism.

Media access doctrine is rooted in an arrogant, elitist, anti-property, anti-freedom ethic that suggest the State is a better position to dictate what can and cannot be said on private speech platforms. “It’s astonishing, yet nonetheless true,” I continued on in that essay, “that the ideological roots of Trump’s anti-social media campaign lie in the works of those extreme Leftists and even media Marxists. He has just given media access theory his own unique nationalistic spin and sold this snake oil to conservatives.” Yet, Trump and other national conservatives are embracing this contemptible doctrine because now more than ever the ends apparently justify the means in American politics. Nevermind that all this could come back to haunt them when the Left somehow leverages this regulatory apparatus to control Fox News or other sites and content that conservatives favor! Once media platforms are viewed as just another thing to be controlled by politics, the only question is which politics and how are those politics enforced? Certainly both the Left and the Right cannot both have their way given all that current divides them.

Finally, what is utterly perplexing about all this is how much thanks national conservatives really owe to the major digital platforms they now seek to destroy. As I noted in my new Hill op-ed:

There has never been more opportunity for conservative viewpoints than right now. Each day on Facebook, the top-10 most shared links are dominated by pundits such as Ben Shapiro, Dan Bongino, Dinesh D’Souza and Sean Hannity. Right-leaning content is shared widely on Twitter each day. Websites like Dailywire.com and Foxnews.com get far more traffic than the New York Times or CNN.

Thus, conservatives might be shooting themselves in the foot if they were able to convince more legislatures to adopt the media access regulatory playbook because it could have profound unintended consequences once the Left uses those tools to somehow restrict access to “hate speech” or “misinformation” — and then define it so broadly so as to include much of the top material posted by conservatives on Facebook and Twitter ever day.

Not all conservatives have drank the media access kool-aid. In the wake of Trump’s deplatforming from a few major sites, a wave of new Right-leaning digital services are being planned or have already launched. (Axios and Forbes recently summarized some of these efforts.) I don’t know which will of these efforts will succeed, but more competition and platform-building are certainly superior to current calls by some Trump supporters for government regulation of mainstream social media services.

Again, this is the old Reagan vision at its finest! We can achieve a better media landscape, “only through the freedom and compe­tition that the First Amendment sought to guarantee,” not through bureaucratic regulation. It remains the principled path forward.

Additional Reading :

• “Left and right take aim at Big Tech — and the First Amendment“
• “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“
• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Conservatives & Common Carriage: Contradictions & Challenges“
• “The Great Deplatforming of 2021“
• “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

Older essays & testimony :

• Adam Thierer, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School, 15 CommLaw Conspectus (Summer 2007): 431-482.
• Adam Thierer, Testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, March 3, 2010.
• Adam Thierer, “FCC v. Fox and the Future of the First Amendment in the Information Age,” Federalist Society, Engage (Feb. 2009).

It was my pleasure this week to host a terrific panel discussion about the future of broadband policy and FCC reform featuring Raymond Gifford, a Partner at the law firm of Wilkinson Barker Knauer, LLP,  Jeffrey Eisenach, a Managing Director and Principal at Navigant Economics and an Adjunct Professor at George Mason University Law School, and Howard Shelanski, Professor of Law at Georgetown Law School who previously served as Chief Economist for the Federal Communications Commission and as a Senior Economist for the President’s Council of Economic Advisers at the White House. We discussed two new papers by Gifford and Eisenach on these issues.

Gifford discussed his new Mercatus Center Working Paper on “The Continuing Case for Serious Communications Law Reform.” Gifford’s paper outlines what substantive FCC reform would entail and considers what antitrust agencies and enforcement can teach us about the way the FCC should work going forward.  Eisenach discussed his important new paper on “Theories of Broadband Competition,” which similarly considers how competition oversight of broadband markets could be modeled after modern antitrust principles.  Shelanski offered his thoughts on both papers. It was an interesting discussion and I encourage you to watch the entire thing.

During the discussion period, we debated the likelihood that serious communications policy / FCC reform could occur in the current political environment.  I argued that the stars just don’t line up at this time to achieve such reforms. However, keep in mind that many deregulatory experiments in the past sometimes started slowly and then something sparked sudden action.  Scholars have noted (see McCraw’s “Prophets of Regulation”) sometimes just a couple of key players (such as Alfred Kahn in the airline context) were able to change the underlying dynamics of deregulation very rapidly to push through long-lasting reforms.

The key difference between then and now, of course, is that, back then, liberal Democrats in Congress and the Carter Admin came to understand how regulation was having a deleterious impact on marketplace competition and consumer welfare.  I simply cannot find a single Democrat who makes that same case today for the communications or media sectors.  And if telecom / media reform remains a highly politically charged, partisan issue, then the hopes for reform remain quite slim. But I haven’t given up all hope just yet!

Anyway, watch the event video for more discussion on this matter.

In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.

For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today’s entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades–the regulation of “excessive violence” on television.

Last week, L.A. Times technology and media reporter Jim Puzzanghera wrote a detailed piece about how “Washington May Take Up TV Violence” in coming months. In his article he noted that:

With a fresh Congress sworn in and a major (FCC) report expected soon on TV gore, pressure is likely to mount to more aggressively stem graphic and gratuitous scenes in shows. One proposal would give regulators powers similar to those they have now to punish indecency and coarse language over the airwaves. In addition, TV violence is shaping up as a 2008 presidential campaign issue with some of the leading potential candidates already at the forefront of the issue. Sen. Hillary Rodham Clinton (D-N.Y.) has long talked about the effect of gory TV shows and video games on children. Sen. John McCain (R-Ariz.) favors allowing families to buy cable channels separately so they can spurn objectionable shows. Sens. Barack Obama (D-Ill.) and Sam Brownback (R-Kan.) also have bemoaned TV violence.

Puzzanghera notes that, beyond Democratic presidential front-runners Clinton and Obama, other congressional Democrats and regulators at the FCC have jumped on the regulatory bandwagon. At the FCC, Democratic Commissioner Michael J. Copps, recently argued that, “In the absence of action from the industry [to address violence on television], I think we need to be looking at all our options.” He means regulatory options, of course. And, over in Congress, Puzzanghera reminds us that in 2004, Rep. John Dingell (D-MI), the new head of the House Energy and Commerce Committee, was one of 39 House members signing a letter to the FCC asking the agency to study violence on television and how it might be restricted. With Dingell now running the committee in which most communications / media legislation originates, this could mean that regulation is on the way.

Puzzanghera also highlighted one particularly important legislative proposal that I have written quite a bit about in recent years–Senator John D. Rockefeller’s (D-W.Va) “Indecent and Gratuitous and Excessively Violent Programming Control Act.” (S. 616 in the last Congress).

As I noted in my detailed analysis of the bill in April of 2005: “If passed, S. 616 would represent the most significant congressional effort to regulate speech since the Communications Decency Act (CDA) of 1996.” That’s because the measure would significantly expand the penalties that traditional broadcast outlets face for indecency violations, and then apply those penalties to cable and satellite. More importantly, in the process, the measure also proposes to let FCC regulators embark on a grand new experiment in regulating “excessively violent” video programming, not just on broadcast television, but also on subscription-based cable and satellite TV.

Puzzanghera notes that Rockefeller plans on reintroducing the measure this session and “With his own party now in the majority, Rockefeller may get hearings and a vote, further propelling the issue.” Sen. Rockefeller tells Puzzanghera that “Obviously, the preference would be to have the industry police itself when it comes to excessive violence. However, if they can’t or won’t do it, then Congress must step in and address this growing societal problem,” Rockefeller said. “One of the most basic steps we can take is to give the FCC authority to regulate violence, and if necessary, the courts will then work out the constitutional issues on a case-by-case basis… Just sitting on our hands and doing nothing to protect children is not an option.”

But before Rockefeller and other Democrats embark on a new “it’s-all-for-the-children” crusade to rid the world of media violence, hopefully they will be willing to consider the mixed “scientific” record on this front as well as the First Amendment complexities associated with defining and regulating “excessive violence” on television.

Academic Evidence, or Lack Thereof

The academic literature on the effects of media violence is not nearly as unified as you might think. In fact, as Dr. Edward Fink of the Department of Radio-TV-Film at California State University-Fullerton, notes, you can find endless reports to support just about any thesis you want to believe in:

Do you want to believe that TV violence is bad? Plenty of research there. One example comes from Dr. L. Rowell Huesmann and associates in the American Psychological Association journal Developmental Psychology, March 2003. They found that a high level of TV violence in childhood is a predictor of more-aggressive behavior in adulthood. Do you want to believe that TV violence is not necessarily bad? There’s plenty of stuff! One example comes from Dr. Ron Warren in the Broadcast Education Association’s Journal of Broadcasting and Electronic Media, September 2003. He found that parental mediation of children’s TV viewing can both inhibit negative effects and enhance positive effects. Do you want to believe both? Once again, a bounty of data! One example is the comprehensive National Television Violence Study, published by the University of California, Santa Barbara. It concludes, “Television can be a powerful influence on social mores concerning violence and aggression, for good or for ill.” Do you want summaries of research? One example comes from the Kaiser Family Foundation’s fact sheet, Key Facts: TV Violence, Spring 2003, which outlines studies that present opposing viewpoints. If you prefer your summary from the government, have a look at Section II, “Violent Programming on Television,” of the 108th Congress’s Broadcast Decency Enforcement Act of 2004. All reasonable people, and yes, that includes most broadcasters and academicians, are sensitive to the potential–though not always the actual–harm of TV violence. This argument is not for TV violence; it is against the government’s exercising a right of censorship it does not have, not even in an election year.

Others have confirmed this academic schizophrenia and pointed out that, if anything, the “scientific” literature on this subject is ambiguous at best and perhaps even leans against the “causal hypothesis” that media violence leads to aggressive behavior. Psychologist Jonathan L. Freedman conducted the most comprehensive review of all the major literature on this subject for his book Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence. He concluded that “the results do not support the view that exposure to media violence causes children or anyone else to become aggressive or to commit crimes; nor does it support the idea that it causes people to be less sensitive to real violence.” Freedman collected and reviewed all the laboratory experiments, field experiments, longitudinal studies, and other studies employing mixed methodologies. He concluded that “not one type of research provided the kind of supportive evidence that is ordinarily required to support a hypothesis. Not one found 90 percent supportive or 80 percent supportive or 70 percent supportive or even 50 percent. In fact, regardless of the method used, fewer than half the studies found results that supported the [causal] hypothesis–sometimes considerably fewer than half.”

Finally, when we step outside the laboratory setting and examine real world trends in a search for a supposed casual link, we don’t find one there either. Consider, for example, the reversal of various social indicators over the past decade. According to FBI reports, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Overall, aggregate violent crime by juveniles fell 43 percent from 1995-2004. And ongoing University of Michigan surveys have revealed that there are fewer murders at school today and fewer students report carrying weapons to school or anywhere else than at any point in the past decade. Meanwhile, the Center for Disease Control reports that although teenage suicide rates rose steadily until the mid-1990s but then began a dramatic decline which continues today. Again, while all these social trends were improving, media exposure–including exposure to violent fare–was increasing.

These results do not conclusively rule out a link between exposure to violence media content and violent acts in the real world. But they should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation who all too often make casual inferences about the relationship between media exposure and various social indicators.

First Amendment Concerns

In light of what the data tells us, one would hope that policy makers would proceed cautiously when it comes to regulating “excessively violent” media content since serious First Amendment / artistic freedom issues are at stake here. And one would especially hope that Democrats would express some skepticism about the folly of such a regulatory pursuit.

After all, why should we let five unelected bureaucrats down at the FCC determine what constitutes “excessive violence.” Are the bloody and occasionally gruesome scenes in TV shows like CSI and ER excessive, or is that a reasonable depiction of forensic and medical science? Hockey games on prime-time TV feature lots of fights, blood, and lost teeth. Should they only be shown on tape delay after kids are in bed? For decades, cartoons have offered a buffet of violent acts, and slapstick comedy of The Three Stooges variety features a lot of unforgivingly violent moments presented as humor. How about gruesome war scenes from actual combat that any child can see on the nightly news? How about Saving Private Ryan or other war movies? What about the stabbing, poisoning, and other heinous acts of violence found in Shakespeare’s tragedies? And, for God’s sake (excuse the pun), what about all the violence in the Bible or Mel Gibson’s The Passion of the Christ? Can any of it be shown on television or cable?

I could go on and on, but you get the point. This all comes down to a question of who calls the shots–parents or government–regarding what we are allowed to see and hear in a free society. This is not to say society must celebrate or even defend violence in the media; there are plenty of movies, shows and games that do contain what many parents would regard as a troubling amount of violent content for young children to witness. Parents need to act responsibly and exercise their private right–indeed, responsibility–to self-censor their children’s eyes and ears from certain things. It’s become increasingly evident, however, that a lot of parents have just gotten lazy about carrying out this difficult job. As the father of two young children, I can appreciate the hassle of constantly trying to monitor a child’s viewing and listening habits. But that’s no excuse for throwing in the towel and calling in the government to censor what the rest of the world has access to. That’s especially the case in light of the fact that, according to the Census Bureau, just one-third of U.S. households have children in them. For the two-thirds of adult-only homes, such a regulatory regime is blatantly unfair.

Again, I can cite plenty of Republicans, such as Sen. Brownback and others, who support calling in Uncle Sam to play the role of surrogate parent and police “excessively violent” media content. But the fact that so many Democrats are joining this crusade is frightening since, again, it makes you wonder if there are any free speech champions left in Washington.

(Up next in this series, I plan on talking about how Democrats are now employing similar tactics and rhetoric in their continuing effort to regulate “violent video games.” But that might get preempted by another piece on how Democrats are leading a variety new efforts to regulate Internet content. Unfortunately, there’s a lot to cover on this front these days.)

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”

Nat Hentoff, a famous civil libertarian and one of our nation’s most tireless defenders of freedom of speech, penned an editorial for today’s Washington Times about congressional efforts to reinstitute the so-called Fairness Doctrine, which was in effect from 1949 until 1987 when the Reagan Administration FCC abolished it.

This effort, he notes, is being led by four Democrats–Sen. Bernie Sanders of Vermont and Reps. Dennis Kucinich of Ohio and Maurice Hinchey and Louise Slaughter, both of New York. Hentoff argues that these Democrats are under the illusion that by reinstituting the Fairness Doctrine they will be ensuring a greater diversity of views in the modern media marketplace. The reality, he argues, will be quite different. Hentoff was a radio broadcaster himself in the old days when the Fairness Doctrine was in effect and he notes that the threat of regulation had a severe chilling effect on free speech:

If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment–precisely the opposite of what the founders clearly intended… During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply. This happened at other stations as well.

The chilling effect associated with the Fairness Doctrine has been thoroughly documented by many media analysts and backs up what Hentoff experienced. Economists Thomas Hazlett and David Sosa provided the definitive economic treatment of the issue in their seminal 1997 study, “Was the Fairness Doctrine a ‘Chilling Effect’? Evidence from the Post-Deregulation Radio Market.” Hazlett and Sosa even created an economic model and crunched some numbers to illustrate the Doctrine’s negative impact. And the definitive legal critique of the Fairness Doctrine can be found in Chapter 9 of Thomas G. Krattenmaker and Lucas A. Powe, Jr.’s excellent treatise on Regulating Broadcast Programming. They document the many doctrinal inconsistencies associated with the Doctrine and highlight how the rule was used as a tool of political extortion by presidents from both political parties who wanted to stiffle dissent about their administrations.

But you don’t need to sweat the numbers or read lengthy legal tomes to realize just how much better off we are without the Fairness Doctrine on the books. Just look around at the amazingly vibrant and diverse media marketplace that exists today. The cornucopia of media choices is overflowing and there’s now something for every conceivable human interest under the sun.

But Hentoff notes that the Fairness Doctrine could be even more destructive to the vibrant exchange of viewpoints today because policy makers might try to impose it on these new media outlets as well:

Should this enemy of free expression become law again in coming years, it would very likely also extend to FCC bureaucrats’ taking charge of freedom of speech on cable television and the Internet and continuing new forms of expression–under the mandate of the FCC’s definers of “diversity of views.” There are liberals who preach the need for “diversity of views” in calling for the return of the Fairness Doctrine because they bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators. But these liberals ignore why we have the First Amendment. As Oliver Wendell Holmes emphasized: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not the thought that we hate.”

In closing, I should note there have been some Republicans in favor of reinstituting the Fairness Doctrine as well. But there are fewer today than in the past. Of course, that might have something to do with the fact that conservative viewpoints are getting a lot more play on the airwaves these days. Thus, some of the former pro-regulatory conservatives probably no longer favor the Fairness Doctrine, feeling that it might chill their voices instead of their opponents.

(Next up in the series: How Democrats are leading the charge to regulate “excessive violence” on television).