Mandating Fairness

Whenever one of my posts addresses America’s problem with disinformation, at least one commenter will call for re-institution of the Fairness Doctrine–despite the fact that, each time, another commenter (usually a lawyer) will explain why that doctrine wouldn’t apply to social media or most other Internet sites causing contemporary mischief.

The Fairness Doctrine was contractualGovernment owned the broadcast channels that were being auctioned for use by private media companies, and thus had the right to require certain undertakings from responsive bidders. In other words, in addition to the payments being tendered, bidders had to promise to operate “in the public interest,” and the public interest included an obligation to give contending voices a fair hearing.

The government couldn’t have passed a law requiring newspapers and magazines to be “fair,” and it cannot legally require fair and responsible behavior from cable channels and social media platforms, no matter how much we might wish it could.

So–in this era of QAnon and Fox News and Rush Limbaugh clones– where does that leave us?

The Brookings Institution, among others, has wrestled with the issue.

The violence of Jan. 6 made clear that the health of online communities and the spread of disinformation represents a major threat to U.S. democracy, and as the Biden administration takes office, it is time for policymakers to consider how to take a more active approach to counter disinformation and form a public-private partnership aimed at identifying and countering disinformation that poses a risk to society.

Brookings says that a non-partisan public-private effort is required because disinformation crosses platforms and transcends political boundaries. They recommend a “public trust” that would provide analysis and policy proposals intended to defend democracy against the constant stream of  disinformation and the illiberal forces at work disseminating it. 
It would identify emerging trends and methods of sharing disinformation, and would
support data-driven initiatives to improve digital media-literacy. 

Frankly, I found the Brookings proposal unsatisfactorily vague, but there are other, more concrete proposals for combatting online and cable propaganda. Dan Mullendore pointed to one promising tactic in a comment the other day. Fox News income isn’t–as we might suppose– dependent mostly on advertising; significant sums come from cable fees. And one reason those fees are so lucrative is that Fox gets bundled with other channels, meaning that many people pay for Fox who wouldn’t pay for it if it weren’t a package deal . A few days ago, on Twitter, a lawyer named Pam Keith pointed out that a simple regulatory change ending  bundling would force Fox and other channels to compete for customers’ eyes, ears and pocketbooks.

Then there’s the current debate over Section 230 of the Communications Decency Act, with many critics advocating its repeal, and others, like the Electronic Frontier Foundation, defending it.

Section 230 says that “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” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish.

Most observers believe that an outright repeal of Section 230 would destroy social networks as we know them (the linked article explains why, as do several others), but there is a middle ground between total repeal and naive calls for millions of users to voluntarily leave platforms that fail to block hateful and/or misleading posts.

Fast Company has suggested that middle ground.

One possibility is that the current version of Section 230 could be replaced with a requirement that platforms use a more clearly defined best-efforts approach, requiring them to use the best technology and establishing some kind of industry standard they would be held to for detecting and mediating violating content, fraud, and abuse. That would be analogous to standards already in place in the area of advertising fraud….

Another option could be to limit where Section 230 protections apply. For example, it might be restricted only to content that is unmonetized. In that scenario, you would have platforms displaying ads only next to content that had been sufficiently analyzed that they could take legal responsibility for it. 

A “one size fits all” reinvention of the Fairness Doctrine isn’t going to happen. But that doesn’t mean we can’t make meaningful, legal improvements that would make a real difference online.


  1. The 1st Amendment protects freedom of speech and freedom of the press but does not require truth from either or anyone else. To act as a witness in courts we swear to “tell the truth, the whole truth and nothing but the truth” but lies have become accepted and overlooked except in rare cases. When I was sworn in to give my Victim Impact Statement after being attacked, permanently injured and robbed on my own driveway at 11:00 in the morning, I swore on nothing but my word and I spoke nothing but the truth. If we can’t trust the courts to provide truth, and the president knowingly and repeatedly lies to the nation and the world and is supported by 70 MILLION Americans; why should we expect to find truth on social media?

    “A “one size fits all” reinvention of the Fairness Doctrine isn’t going to happen. But that doesn’t mean we can’t make meaningful, legal improvements that would make a real difference online.”

    In my estimation starting by making “meaningful, legal improvements” online is starting at the bottom; start at the top with our government officials and judicial systems being required to tell the truth and there will be fewer lies to reprint or repeat anywhere.

  2. Who is claiming to want “fairness?”

    The UK and the USA rank 35th and 45th in world press freedom behind many African countries.

    Therefore, any initiative regarding freedom of expression must come from international sources like the United Nations, even though they are heavily influenced (threatened) by the USA consistently with dollars. How can we trust a government or media ranked 45th in the world for press freedom to devise a plan to improve its ranking? LOL

  3. Wouldn’t it be nice if we could just provoke a little skepticism in the readers of on-line posts? We should all realize by now that our side doesn’t always tell the unvarnished truth and maybe we should not be too unhappy that they don’t. I’m not saying I approve of lies, but there are degrees of lies and an occasional little white lie is sometimes just what we need to hear.

  4. I think Peggy is spot on… why isn’t this issue resolved within the individual? I suspect this “skill” needs to be developed more in school curriculum but in the end no amount of regulation will prevent someone from immersing themselves in one-sided social media outlets. Please do not mistake this response as a some sort belief that this is a simple problem with a simple solution. I certainly understand that. I just find the proposed solutions to address it as weak. I also know that I am not offering anything better than those weak solutions… perhaps I should end this statement with the ultimate social media response… “it’s complicated”.

  5. How timely! Just this morning Twitter announced @Birdwatch, a content monitoring and validation mechanism using controlled crowdsourcing. They’re starting out slow. It is truly social experimentation in real-time. They may not get it ? right the first time but this seems to be a viable avenue towards a less insane internet.

  6. Sometimes it just takes pissed off victims of conspiracy theories to use the courts as a vehicle for which they are meant, to receive relief from injustice! Dominion is a prime example, and when they threatened lawsuits and now are actually delivering on that threat/promise. Now, you have all of these organizations spreading conspiracies running for cover! If some of these entities are sued out of existence or maybe some of these individuals are broken beyond repair, that will drive better behavior?

    Also, Q anon needs to be exposed for what they are, because I guarantee, Q anon is not a member of the Q group which are investigators for the NSA and FBI!

    Edward Snowden or Chelsea Manning would have more connection with and a right to call themselves Q, than these clowns right now which he have nothing to do with the intelligence service and are just making up lies and innuendo! And, I would imagine, these so-called Q patriots, could be sued in court just like Dominion is doing to these other clowns that caused them great damage to their brand.

  7. Dr. Kennedy, I felt like you were speaking directly to me when you said one of your commentators always mentioned the “Fairness Doctrine”, because I’ve long thought that repealing the Fairness Doctrine was the worst single mistake Pres. Reagan made!
    I believe it IS possible to reinstate it, and with a little bit of change in the wording of ‘legalese’ , here’s why.
    There is no electronic communication of any sort that does not use interstate pathways, nor does a single form of it exist without using modern satellites which were originally funded by the government.
    Another important point that ‘wording’ can deal with is this: The First Amendment is understood to guarantee ‘Freedom of Speech’ and it was written when ‘the Press’ consisted of local printing presses that usually ran a few hundred copies and were then sold to readers who passed them around to other readers numbering in the low thousands. No electrons were used, meaning no invisible ‘signals’ were sent across colony’s boundaries as is done today.
    The only other means of ‘free speech’ consisted of going out on the proverbial ‘street corner’ and speaking as loudly as possible so that a few dozen folks could hear what one was saying.
    In short, the “means” of free speech was definitely limited, albeit in more primitive ways.
    Today, the “means of free speech” can still be limited. If it weren’t, imagine what would have resulted with the introduction of radio! Pure cacophony might well have been the entire nature of it, and I’m sure both the speakers of speech as well as the listeners of it were happy for the government to organize it so everybody could use it.
    To say that Cable and/or Satellite TV and Radio do not come under governmental control in using the public’s airwaves is equivalent to saying that Public transportation does not come under the control of the government in using the public’s roads and it’s regulating powers on speed limits. (I can well remember when Indiana instituted its first speed limit law. My mother, whom we later called the “Leadfoot Lady”, was not too happy about it, but she eventually did realize the benefits of having a common regulation that required all to observe the same speed laws – at least in a general way).
    To sum up, the solution to the current plague of government supported lying is simply for it to declare that all airwaves, no matter the frequency used, ARE subject to government regulation because the public DOES have in interest in them, and still regulates them through the means and methods of modern electronic usages.

  8. And, (conclusion) can legally require that both sides of every issue be heard on every program.

  9. Joanne, I do not think that we can rely on politicians, if that’s what you mean by “government officials,” to be truth tellers. If you mean, instead, government employees, that are not elected, that would be different. Not that I/we would not like to see truth from elected folk, as well.
    Stephen, I view Reagan’s Fairness Doctrine move as a “mistake” but do not see him as having mistakenly done it, but very purposely. But, I have often bemoaned the absence of that Doctrine, as well. Now, I understand it better. I like your idea, but, not being a lawyer steeped in that area of law, I do not know whether, or not, it would work.

    The, apparently, good thing about where we are in this regard is that there is now a wide awareness of how damaging unfettered speech/propaganda/gaslighting can be to the society as a whole. Those who can have some impact on this ought to move with some haste, as in striking while the iron is hot.

  10. In order to keep viewers glued to TV screens for hours on end they must keep dramatizing & hyping up the information. Simplest solution get rid of 24 hr news.

  11. It seems like in the last couple of decades several sources have sprung up offering fact-checking as a product. I’m honestly not sure of how they are funded and what they have established as the standards of truth. Perhaps that’s a start though.

  12. The ultimate though unlikely outcome is to have consumers so bright and knowing per Peggy that neither private nor government cleansing of the airwaves is necessary. Trouble is, among other problems, corporate America, the heavy campaign contributors, want more STEMs and less civics in the indoctrination of our schoolchildren, and as the old expression goes, “Money talks” – in curricular design as well as in tax and regulatory designs.

  13. Stephen F Smith,

    Okay brother, I’m going to Glom on to your thought process, lol! your brain definitely works in a different way than mine does!

    What you said makes a lot of sense, and, I absolutely guarantee that these laws, rules, and regulations have to be malleable, in other words when new technology presents itself, they have to be infused into the regulatory curriculum or, that regulatory curriculum has to be made to fit the new technology. Almost like what we’ve talked about in other threads, the Constitution can’t be a dead document because there’s no way that the writers could have foreseen current conditions and technology. Same with all regulatory curriculum.

    I remember you speaking of the fairness doctrine before on another thread, so I agree 100% with your thought process on this issue, whether that makes any difference to anybody as another story, lol!

  14. I likewise have never been a fan of Cable Companies “Bundling” their services. For the most part I have no interest in many of the “Bundled” programing on Comcast. Yet, I have to pay for it as a part of the “Bundle”.

    I can with my electricity choose which electrical devices I turn on or off. Electricity is not “Bundled” where I must have certain electrical devices on.

    I certainly do not expect Comcast or any other Cable Company to stop bundling unless they are forced to via legislation.

    Years ago when Cable first arrived here there was a local “public” channel. I believe Gold$mith got rid of it.

    There are of course many sources of news out there. The Guardian is my go to on line site. There are others also more to the Left as I am sure there are many on the Right.

    For Cable News I like Newsy the best. Honestly, I am so over the presenters on MSDNC and CNN and their panel of “experts”. FOX is the same with a different bend.

    I suppose it comes down to the persons critical thinking skills. Some people want information to consider and others want to have their bias confirmed.

  15. Some website that I was on this morning pointed out the app “Newsy” as one that specializes in truth. Remember when all news sources did? I put it on my phone and was impressed with its reporting. There was even a good video on how people can be trained towards more critical thinking in separating the online wheat from the chaff.

    That included reporting about many “local” newspapers typically with the word “Star” in their name published by a Tennessee company run by a Tea Party founder. It’s been found that most of the papers don’t have any local reporters but only local consumers getting content from writers in Tennessee.

    We can no longer assume anything about the truth content of news. We have to adapt by training the critical thinking brain part.

  16. Patrick, the @birdwatch is interesting. It sounds like a similar but pretty effective scheme that with volunteer neighborhood moderators. Since these platforms are just wide open to the user community, it makes sense that the user community takes some responsibility in policing itself, but I have a problem with a volunteer crowd-sourcing effort, in that these platforms are shoving more and more advertisements at the users and I am sure tracking and scraping data from these users, and now even pushing the job of policing to the users!

    I am a volunteer moderator for our neighborhood on, and for now I feel like I still get more value out of the site, than the effort that goes into it. Also, as does a better job of policing, and gets better at articulating user rules, bad behavior gets rarer and rarer.

    Maybe Facebook could fall in line as well, but at the beginning, it would be a Sisyphean task!

  17. Great article, Sheila.

    I like the Fast Company idea. I think it has a lot of potential. It is possibly the best suggestion I have seen so far.

    Stephen, your arguments for the fairness doctrine are cogent, but sadly, a Supreme Court that believes that allowing a rich person to follow you around with a megaphone, shouting over your words is a great example of free speech, wouldn’t allow it. (The Supremes don’t understand that more money isn’t more speech, just more volume to drown out opposing speech.) I’m not certain how many lower courts would accept it either, but then, I am not a lawyer.

    As for un-bundling, I have always liked that idea. However, we have to remember not to fight the last war. Cable is slowly losing to streaming. You used to be able to view old episodes of shows on cable; now, you are directed to that channel’s “streaming (for a fee) service”. HBO has their service; CBS has theirs; and then the new-comers like Amazon, Hulu, and the lot are there. They all bundle as well. It was easier in the “cable” days, but is some court going to tell DIsney that they can’t bundle the channels that they own?

    Maybe there are ways to deal with that.

    As for “crowd sourcing” – It has it’s place, but I fear that it could be manipulated as well. Thousands of Trumpsters with multiple accounts – maybe it could be done, but I don’t know.

    Finally, great thougtht Peggy, but having been hanging around the “skeptic” movement for decades, I fear the size of the task.

    I was just checking – Stive Allen worte “Dumbth: The Lost Art of Thinking With 101 Ways to Reason Better & Improve Your Mind” in 1998. I don’t think that helped, and he was a better writer than most.

    Still, given the ideas generated among Sheila’s readers, and realizing that many more people are working to come up with plans, I have some small hope – small, but it is hope.

  18. Thanks, for this Sheila. The solutions you mentioned are indeed vague and lacking. I think a full repeal of 230 is the only way to cleanse social media of the lies and misinformation. The burden must be on Fox News, Newsmax, OANN, FB, Google’s YouTube, and Twitter (and every other platform) to conform to extant laws and morés. For them to throw their collective hands in the air and proclaim that they are not media companies is ludicrous at this late date. I don’t think the cable bundle solution would be effective at scale, particularly not as so many are cutting the cable, and especially since much of the lies, bullying and incitement takes place online. I wrote about this for the Wall Street Journal some time ago, and subsequently recanted on my blog:

Comments are closed.