As the possibility of government regulation of large digital platforms picks up steam, the debate has begun to coalesce around a complex question: Is Big Tech fair?
The question, usually in response to accusations that digital platforms suppress conservative viewpoints, dominated last month’s House Judiciary Committee hearing featuring the CEOs of Apple, Facebook, Amazon, and Google. It is the social-media version of the debate now dominating journalism, centering on objectivity and whether reporters have an obligation to surface opposing views, even if they are false or objectionable.
As last week’s hearing kicked off, President Trump tweeted, “If Congress doesn’t bring fairness to Big Tech . . . I’ll do it myself with Executive Orders.” Indeed, in late May, the White House issued an executive order proposing to regulate social media platforms; in advance of that order, Trump tweeted his promise to bring “FAIRNESS” (the caps are his) to social media.
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The president’s repeated demands for fairness bring to mind a long gone, but not forgotten, regulation – the Fairness Doctrine. First introduced by the Federal Communications Commission in 1949, the Fairness Doctrine required broadcasters to cover controversial issues of public importance—and, in so doing, provide contrasting views on those issues. The Fairness Doctrine reflected policymakers’ concerns about the influence potential of broadcasting given its capacity for widespread and immediate reach, which extended well beyond the capacity of other media at the time. Within this context, policymakers were particularly concerned that the medium expose listeners and viewers to a diversity of viewpoints. These concerns echo in today’s environment of digital platforms with massive audience reach. The doctrine required that broadcasters provide “fair and balanced” presentation of all public issues. (This is where Fox News got the phrase.) Individuals or organizations could file Fairness Doctrine complaints that broadcasters would then need to address in their newscasts.
The mechanics of applying the Fairness Doctrine to newscasts are obviously very different from applying them to social media platforms with millions of users. Everyone’s news feed is essentially its own newscast, with the platforms’ curation algorithms (and, in some cases, actual humans) making decisions about what does—and what does not—show up in your feed, and in what order. The differences in scale and scope for implementing a Fairness Doctrine for social media platforms are monumental.
It is also important to remember that the Fairness Doctrine applied only to radio and television broadcasters. Subsequent arguments that the Fairness Doctrine should also apply to newspapers were rejected by the Supreme Court as a violation of publishers’ First Amendment rights. The reason that the Supreme Court considered the Fairness Doctrine constitutional in the broadcast context, but not in the context of other media, has to do with the fact that broadcasters are licensees of a “scarce public resource”—the broadcast spectrum. Broadcasters’ privileged access to this public resource essentially means that they are “public trustees” who must, as a quid pro quo for access to the spectrum, abide by some public interest obligations. These public interest obligations have, in addition to the Fairness Doctrine, included requirements such as providing minimum levels of educational children’s programming and providing equal time to political candidates.
Obviously, social media platforms don’t utilize the broadcast spectrum. So where’s the quid pro quo? I’ve argued elsewhere that one approach to justifying content-based regulation of social media platforms is to treat aggregate user data as a publicly held resource, collectively owned in the same way that the public “owns the airwaves.” This rationale, however, requires a wholesale reconsideration of how we think about property rights in user data—a conversation that does not appear to be going anywhere in this country. Absent that kind of radical rethink of how we treat user data, any efforts by the government to move forward on the executive order and impose any mandates related to fairness and balance are destined to suffer the same fate as efforts to apply the Fairness Doctrine to newspapers.
It’s also worth understanding why the FCC decided to eliminate the Fairness Doctrine in 1987. The FCC argued that the doctrine was no longer necessary given the growth in the number of media outlets available—an argument that echoes today amid millions of online voices. This growth facilitated access to a diversity of perspectives in a less heavy-handed way than the Fairness Doctrine. The FCC also argued that the doctrine had unintended, counterproductive consequences. Here, the commission relied on testimonials from broadcasters who stated that the doctrine had a “chilling effect” on their speech, compelling them to avoid coverage of controversial issues rather than endure the process of responding to the Fairness Doctrine complaints that such coverage generated. From this perspective, the end result of the Fairness Doctrine was less coverage of controversial issues, something that the FCC did not see as in the public interest.
This reasoning has relevance to the executive order and the Congressional investigation at hand. Specifically, the administration is seeking to modify the scope Section 230 of the Communications Decency Act, which protects services such as social media platforms from liability for third-party content that they host, while at the same time allowing them to engage in the kind of editorial discretion and content moderation that might otherwise trigger such liability.
Revising or eliminating social media platforms’ Section 230 immunity could affect platforms in a way that is similar to how the Fairness Doctrine purportedly affected broadcasters. Specifically, these platforms might respond to the alteration or elimination of their immunity by abandoning their content filtering and moderation practices altogether. They may revert to pure common carriers so that they wouldn’t be liable for any of the content that they host, in a response similar to how broadcasters abandoned their responsibility to cover controversial issues in order to avoid Fairness Doctrine obligations.
But the biggest problem with the Fairness Doctrine is what it does to our conception of journalism and to the notion of how responsible gatekeeping works. Over the past few years, there has been a substantial amount of criticism heaped upon the news media for engaging in “false equivalence”—giving equal attention to competing claims on different sides of the political or ideological spectrum, regardless of the objective validity of the competing claims.
Social media platforms have exhibited a similar tendency to take the position of passive conduits throughout much of their history, though they now seem to be shifting their approach. Many of them are taking more aggressive action against particular categories of misinformation, such as those related to the coronavirus and the 2020 census. And, of course, the May executive order was motivated by Twitter’s unprecedented action of placing a fact-check alongside President Trump’s verifiably false tweet about mail-in ballots and election fraud. Plus, while Mark Zuckerberg appears committed to Facebook remaining a largely laissez faire conduit for political misinformation, the recent protests from Facebook’s employees suggest that this position is becoming increasingly unpopular in the tech sector.
But this kind of passivity in the face of falsity is at the heart of the Fairness Doctrine. It literally allowed tobacco companies to counter news reports of research demonstrating that cigarettes caused cancer with the alternative—and false—perspective that there was no meaningful link between smoking and cancer. It also provided a tool for presidential administrations to try to influence news coverage about them. The Johnson and Nixon administrations were particularly fond of using the Fairness Doctrine to try to counteract bad press.
This sort of uncritical, non-evaluative approach to journalism—and to online gatekeeping more broadly—simply is not the right path to cultivating an informed citizenry. Institutionalizing such a model puts gatekeepers in the position of legitimizing falsity by presenting it alongside truth. It creates a system where demands of fairness and balance neuter journalists’ and other gatekeepers’ abilities (and responsibility) to differentiate fact from fiction. This critical gatekeeping function is more valuable than ever in today’s vast and complex information ecosystem, where distinguishing legitimate sources of news and information from illegitimate sources is more challenging for the end user than it has ever been; where efforts by bad actors to manipulate social media platforms have become commonplace and increasingly sophisticated; and where our traditional assumption that a free-flowing “marketplace of ideas” is the best way of ensuring that truth will win out over falsity may not hold up as well as it once did. Social media platforms are not the “passive bulletin boards” that the executive order demands them to be; nor should they be. For this reason, more than any other, borrowing from a regulatory intervention developed for the media environment of 1949 seems particularly dangerous today.
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