|Net Neutrality: A Fairness Doctrine for the Internet
Release 3.11 October 2007
by Adam Thierer*
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The perversely named Fairness Doctrine, which threatened licensed broadcasters with fines if they didn't "afford reasonable opportunity for the discussion of conflicting views," as the government defined it, has shown up in the news again recently, as federal lawmakers and liberal media activists have called for increased regulation of a media marketplace that they feel is spinning out of their control. But the push to reimpose the doctrine--which the Reagan administration abandoned in the late 1980s as obsolete and harmful to free speech--may be mostly a diversionary tactic. The Left has a much bigger target in its regulatory crosshairs: the Internet. Over the past few years, many of the same policymakers and activists who have long trumpeted the Fairness Doctrine have advocated that its rough equivalent apply to Internet service providers. And they've come up with another Orwellian term for the proposal: "net neutrality."
In theory, net-neutrality regulation would ban Internet operators from treating some bits of online traffic or communications more favorably than others, whether for economic or political purposes. Proponents of net neutrality use the same kind of fantastic rhetoric to describe it that they once used for the Fairness Doctrine: it's a way to "save the Internet" from "media barons," they say, who're apparently hell-bent on controlling all our thoughts and activities. As City Journal's Brian Anderson notes, "It's thus not hard to imagine a network neutrality law as the first step toward a Web fairness doctrine, with government trying to micromanage traffic flows to secure ‘equal treatment' of opposing viewpoints (read: making sure all those noisy right-wingers get put back in their place)."
It's a brilliant tactic by the Left. Why exert all your energy attempting to reimpose "fairness" mandates on broadcasters alone when you can capture them, and much more, by regulating the entire Internet? After all, in a world of media convergence and abundance, bright lines dividing distinct media sectors or their products have vanished. Everything from TV shows to text messages run on multiple networks, making the old, broadcast-oriented Fairness Doctrine a less effective means of reestablishing a liberal media monopoly. So the liberals got smart and came up with the perfect solution: use net neutrality as a backdoor way to reimpose the Fairness Doctrine on the entire media marketplace.
That liberals would support such a Fairness Doctrine for the Internet is no surprise--they have long favored government regulation of media and communications markets. What's shocking, however, is that some conservative and family groups have joined the net-neutrality regulatory crusade. For example, in an editorial in yesterday's Washington Post, Roberta Combs, president of the Christian Coalition of America, joins Nancy Keenan, president of NARAL Pro-Choice America, in calling for congressional investigation of purported censorship by wireless operators. Combs, who has vociferously argued for net-neutrality regulation for communications and Internet companies, is now stepping up those calls, claiming that private companies want to squelch speech over wired or wireless networks. "We're asking Congress to convene hearings on whether existing law is sufficient to guarantee the free flow of information and to protect against corporate censorship," Combs and Keenan write.
Prompting this latest call for regulation was an incident two weeks ago in which Verizon Wireless blocked text messages from NARAL. Verizon admitted that it had made a mistake and immediately changed its policy. But net-neutrality fans like NARAL and Christian Coalition say that the incident shows why a Fairness Doctrine for the communications and online sector is essential. In reality, the incident proved the opposite: the message got out. In fact, NARAL has probably never had such great press; the blogosphere in particular was all over the story. I only wish some carrier would try to block one of my essays so that it would get similar attention.
So sunlight here proved the best disinfectant; press attention and public pressure changed corporate behavior. Even if it hadn’t, though, plenty of other carriers and media providers would have been all too happy to deliver NARAL's message. In a world of abundant media options and outlets, Verizon has no practical ability to “censor” speech, even it wanted to.
Unsurprisingly, the New York Times's editorial page, the old guardian of sacred liberal causes, disagrees. Like NARAL and Christian Coalition, the Times senses a corporate conspiracy to stifle dissent, and in an over-the-top editorial two weeks ago suggested that Verizon’s mistake constituted "textbook censorship." "Any government that tried it would be rightly labeled authoritarian," the Times argued, and "the First Amendment prohibits the United States government from anything approaching that sort of restriction."
The Times apparently needs to brush up on the First Amendment. It's certainly true that any government action restricting online speech in this fashion would be unconstitutional. When government censors, it does so in a sweeping and coercive fashion, prohibiting the public, at least in theory, from seeing or hearing what it disapproves of and punishing those who evade the restrictions with fines, penalties, or even jail time. Not so for Verizon or any other private carrier, which have no power to censor sweepingly or coercively. A world of difference exists between a private company’s exercising editorial discretion to transmit--or not transmit--certain messages or types of content and government efforts to censor.
Harvard law professor Laurence Tribe made this point eloquently at a recent Progress & Freedom Foundation event. In his view, those who would impose net-neutrality regulations on First Amendment grounds fail to appreciate "the fundamental right of editorial discretion. For the government to tell that entity that it cannot exercise that right in a certain way, that it must allow the projection of what it doesn't want to include, is a violation of its First Amendment rights." The principle that Tribe articulated would apply equally to the New York Times's editors if they decided, say, not to run an advertisement from the Ku Klux Klan. That's why it's particularly puzzling that the Times ended its editorial about the Verizon incident by arguing that "freedom of speech must be guaranteed, right now, in a digital world just as it has been protected in a world of paper and ink." Does the editorialist believe, then, that government should regulate what ads the Times may run in its own pages?
This twisted theory of the First Amendment cannot support net-neutrality regulation. The First Amendment was intended to protect us from tyrannical, coercive government power, not the silly mistakes of private companies. And a new Fairness Doctrine for the Internet would have the same chilling effect on the vibrant exchange of ideas--especially conservative ones--that the old Fairness Doctrine for broadcast TV and radio did.
The Christian Coalition--a major beneficiary of the modern, unregulated media marketplace, which has allowed the organization to spread its message to a much broader audience--should reconsider the wisdom of joining forces with the liberal champions of an online Fairness Doctrine. If not, it will have only itself to blame when, one day, the feds come knocking on its door, instructing it to ensure more "fairness" on its website and in its e-mail.
*Adam Thierer is a senior fellow and director of the Center for Digital Media Freedom at The Progress & Freedom Foundation. The views expressed in this report are his own, and are not necessarily the views of the PFF board, fellows or staff.