That's Debatable is a new blog initiative bringing together legal and policy experts with differing perspectives to engage a relevant topic or pressing question over several long- and short-form posts. The Federalist Society takes no position, and offers a forum for clear and constructive exchange.
The topic of the first series is "Governing the Internet," which covers issues from Section 230 of the Communications Decency Act to net neutrality, mergers, and more. This topic is co-sponsored by the Practice Groups and the Regulatory Transparency Project.
A post responding to this one will be published next week.
Plenty of people claim to favor freedom of expression, but increasingly the First Amendment has more fair-weather friends than die-hard defenders. Michael O’Rielly, a Commissioner at the Federal Communications Commission (FCC), found that out the hard way this week.
Last week, O’Rielly delivered an important speech before the Media Institute highlighting a variety of problematic myths about the First Amendment, as well as “a particularly ominous development in this space.” In a previous political era, O’Rielly’s remarks would have been mainstream conservative fare. But his well-worded warnings are timely with many Democrats and Republicans - including some in the White House - looking to resurrect analog-era speech mandates and let Big Government reassert control over speech decisions in the United States.
Back in March of this year, President Trump re-nominated O’Rielly to serve another five-year term at the FCC. This week, unfortunately, the White House yanked O’Rielly’s nomination. His term will now end in January 2021 at the latest. There may have been other reasons for the White House’s abrupt and unusual reversal, but most close observers believe that O’Rielly’s recent warnings about growing anti-free speech sentiments, including among Republicans, led to the withdrawal. This shocking development illustrates why the First Amendment needs all the true and vocal defenders it can get.
The Media Access Movement Finds New Life
O'Rielly, a lifelong Republican who was appointed to the bipartisan agency by President Barack Obama in 2013, begins his Media Institute remarks with some observations about the improving state of America’s video marketplace. “If you’re a consumer who likes video content, there’s never been a better time,” O’Rielly rightly notes. Indeed, compared to the dismal days of limited video choices, we are blessed today to live in a golden age of video content and informational choices.
Alas, with more content comes more complaints—and calls for regulation. The cornucopia of choices that Americans enjoy today has led to bipartisan demands for government intervention to use the First Amendment to rejigger the marketplace of ideas to make it more to their liking. “I am very troubled by certain opportunists elsewhere who claim to be the First Amendment’s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives,” O'Rielly argues in his remarks. “The inconsistencies and contradictions presented by such false prophets would make James Madison’s head spin, were he alive to witness them.”
Commissioner O'Rielly is referring to a concerning new tendency by some on both the Left and the Right to try to bend the First Amendment to their personal desires by converting it into a tool to regulate private actors. As O'Rielly reasons:
The First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way. Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making.
Unfortunately, the misguided notion O’Rielly refers to here has been around for a while. The so-called “media access” movement made this sort of communications collectivism the centerpiece of their effort to convert the First Amendment from a shield (to protect private actors from government abuse) into a sword (for government to wield against other institutions). Legal scholars Jerome A. Barron and Owen Fiss led the charge to contort the First Amendment in this fashion. Fiss argued that “a change in our attitude about the state” was needed such that it was viewed as “a friend of speech” that would “preserve the integrity of public debate.”
They wanted a variety of “public access” mandates, right of reply requirements, and other Fairness Doctrine-esque regulations to reorient speech markets in this fashion. The Fairness Doctrine required broadcasters to air all “conflicting views of public importance.” Its actual effect was deeply troubling, making it a paradigmatic example of the failure of good intentions in action. The Doctrine was supposed to spur a diversity of perspectives, but it ultimately led to bland, boring, and limited content. Broadcasters adopted a don’t-rock-the-boat strategy of not upsetting regulators by intentionally shying away from potential controversial topics and programming. The Doctrine led to endless regulatory harassment anyway, with regulators and politicians (including Democratic and Republican presidents) attempting to use the power of the FCC to intimidate broadcasters into airing (or not airing) specific types of programming.
Although the First Amendment specifically provides that “Congress shall make no law ... abridging the freedom of speech, or of the press,“ the Fairness Doctrine survived constitutional challenges as applied to radio and television broadcasters. In cases such as Red Lion Broadcasting Co. v. FCC (1969), the Supreme Court accepted the misguided argument that “scarcity” of broadcast frequencies was a good enough reason to let the FCC meddle with the balance of speech on the airwaves.
The media access advocates wanted to apply this logic well beyond broadcasting, however, including to unlicensed media outlets. In 1974, Barron pushed this logic all the way to the Supreme Court in Miami Herald v. Tornillo, but luckily the justices resoundingly rejected his call to apply broadcast-era media access mandates to newspapers and magazines. The judges noted those media institutions enjoyed full First Amendment protection against interference with their editorial discretion.
After that, the Reagan Administration folded up the Fairness Doctrine in the 1980s and gradually whittled away at what was left of most broadcast media access mandates. Some on the left never let the dream die, but efforts to expand access controls or revive the Fairness Doctrine were routinely beaten back in Congress.
Conservatives for the Fairness Doctrine?
What is peculiar today, however, is that media access theory is attracting newfound support from some conservatives. President Trump has even floated an Executive Order aimed at “Preventing Online Censorship,” that entails many new forms of government meddling with these private speech platforms.
And it is not just the administration. In Congress, Senator Josh Hawley (R-MO) introduced a bill that would essentially mandate a Fairness Doctrine for social media platforms. The “Ending Support for Internet Censorship Act” would remove the important protections of Section 230 of the Communications Decency Act from social media platforms unless their content moderation was approved by government bureaucrats. (Section 230 generally protects any company that hosts third party content online from being sued for content posted by those third parties.)
More specifically, large social media platforms would only gain the protections of Section 230 if the Federal Trade Commission (FTC) determines that the company “does not moderate information provided by other information content providers in a manner that is biased against a political party, political candidate, or political viewpoint.” Social media companies would have to seek this approval from the Federal Trade Commission every two years. As former FTC Commissioner Josh Wright has said, “this bill quite literally injects a board of bureaucrats into millions of decisions about internet content. This is central planning. Full stop.”
Other Republicans have similar ambitions to get the government involved in online speech. Rep. Paul Gosar (R-AZ) recently introduced the “Stop the Censorship Act of 2020,” which would subject platforms to liability if they take down objectionable content unless it is illegal or promotes violence or terrorism. Sen. Kelly Loeffler (R-GA) introduced the “Stopping Big Tech’s Censorship Act” which requires viewpoint neutrality for the removal of any constitutionally protected speech. And Rep. Louie Gohmert’s (R-TX) “Biased Algorithm Deterrence Act” would make social media companies liable for all third party content unless they display such content in chronological order.
Section 230 often appears at the center of these attempts to control speech online because this important law enables social media platforms to exist, and therefore threats to remove it are existential threats for social media companies and other online platforms that host third party content. This makes Section 230 a powerful bargaining chip, and legislators and others have sought to use it as such in negotiations where congress wants something from the tech companies. Indeed, Sen. Hawley has proposed or co-sponsored three other bills that would directly undercut the protections of Section 230 or limit the protections of Section 230 unless companies achieve other policy goals. Other bills that would modify Section 230 include Senator Lindsey Graham’s (R-SC) “EARN IT Act” and Senator Brian Schatz’s (D-HI) “PACT Act,” both of which have bipartisan cosponsors. And the Department of Justice recently issued a report proposing to change Section 230 in order to “incentivize” companies to collaborate in law enforcement investigations.
Meanwhile, as demanded in the Executive Order mentioned earlier, the NTIA has asked the FCC to interpret Section 230 “to require websites to prove that their content moderation was conducted with ‘good faith,’ and to define that term to include political neutrality,” as policy experts at TechFreedom characterized it. The NTIA petition repeatedly points to alleged political bias of platforms as the motivation for this petition and wants the FCC to fix this political bias problem. Fairness Doctrine, anyone?
After release of the Executive Order, Commissioner O'Rielly said he had "deep reservations" about the wisdom of the edict, likely because it smacked of the sort of Oval Office harassment seen during the Fairness Doctrine days. He also said that he believed Sec. 230, “has functioned as intended and therefore has been incredibly beneficial."
Interestingly, NTIA’s evidence for allegations that social media content moderation is politically biased are self-reported complaints collected by the White House, claims in the Trump Executive Order, and statements by another FCC Commissioner, Brendan Carr. Carr issued a press release welcoming the NTIA petition, characterizing it as “an opportunity to bring much-needed clarity to the statutory text [and] empower speakers to engage in ‘a forum for a true diversity of political discourse.”
Who Will Stand for First Amendment?
Republicans who defend these regulatory shenanigans are calling for the resurrection of the media access playbook that progressives pioneered and that conservatives spent the past half century undoing. Although the new proposals go by different names, all the old elements are still there--the Fairness Doctrine, must-carry mandates, right-of-reply, and even “neutrality” requirements.
Once again, Commissioner O'Rielly highlights what is so troubling about the idea that speech neutrality or speech diversity can be enforced by government command:
I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech ‘defenders.’ It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action. These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty. This institution and its members have long been unwavering in defending the First Amendment, and it is the duty of each of us to continue to uphold this precious protection.
O'Rielly is correct. It is the duty of every FCC Commissioner and the privilege of every American to support the First Amendment’s protections and to stay vigilant against those who would, like progressives of the past, distort free speech protections into free speech restrictions. It is a shame that Mike O’Reilly will no longer be at the FCC to defend the First Amendment, and it makes it even more important that the rest of us follow his example by doing so.