A little background for why I wrote this. Many folks are insisting that if folks don’t like the political bend
of the internet giants they should just start their own internet companies. Maybe
folks should start their own companies, but that does not over-ride the fact
that the companies that now exist are operating in a safe monopoly, and should
be regulated as such.
So, I went back to
look at the Fairness Doctrine, and who and why it was applied and to whom. So,
it was never applied to newspapers or “print” of any kind on the premise that
there wasn’t a shortage of views to be found in those mediums as they were all
independently owned, expressed their own views, and there were literally 1000s of them. You could read any view you
wanted just by picking up another paper or magazine.
So, it was made to
apply only to radio and TV broadcast “frequencies”, as those were considered “scarce”
resources both in the 30s, and in 1969 because the technology was both limited
and limiting, as well as expensive. The holders of the FCC licenses would have
control of a “scarce” resource, and would be gatekeepers intentionally or not,
so the government was obliged to step in and limit their abilities to limit
speech. Many felt that as the technology caught up to it’s potential, that the
Doctrine would in fact limit speech, such as in the case of say, a small town
TV station, that didn’t agree with their mayor about the need to widen Main St.
Once they presented their view on the matter under the Fairness Doctrine, they
would have been obliged to also present 47 differing views, which for a small
concern is a large waste of resources. So rather than talk about Main St, they
would just skip the conversation all together. But, the Fairness Doctrine was
premised on the fact that there only a few a holders of the licenses, and so
they were given a monopoly by government, BUT were expected to present all
views. As the monopoly went away, so did the Fairness Doctrine. (Even though
you might want to ask yourself about that “small town” TV station. Are they
independent and providing their own views, or are they a wholly owned subsidiary
of a large network??)
So, I went and took
a look at the Fairness Doctrine, and the Supreme Court case Red Lion
Broadcasting. The Fairness Doctrine may be dead, and the case itself moot,
but what was said there still applies to internet companies today as much, or
more than it did to radio stations and TV networks back then.
Although similar laws are unconstitutional when applied to the
press, the Court cited a Senate report (S. Rep. No. 562, 86th
Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in
this way because of the limited public airwaves at the time. Writing for the
Court, Justice Byron White declared:
|
“
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A license permits
broadcasting, but the licensee has no constitutional right to be the one who
holds the license or to monopolize a radio frequency to the exclusion of his
fellow citizens. There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others....
It is the right of the viewers and listeners, not the right of the
broadcasters, which is paramount.[4]
|
”
|
The Court warned that if the doctrine ever restrained speech,
then its constitutionality should be reconsidered.
Think about it, “the licensee has no constitutional right to… monopolize a radio
frequency to the exclusion of his fellow citizens”. And, yeah, that applies to
the internet too. “Start your own company” you say? Well, that is both as limited
and limiting, as well as expensive in both capital and expertise (I can’t code…can
you?) as any radio station ever was, so it IS a "scarce" resource. And then there’s the tiny little fact that The Giants CAN limit your
exposure; you’ll be found in a search as the 427th entry after a cat
food company…
Why are (were) similar laws
considered unconstitutional when applied to the press (newspapers/magazines)? Because
theoretically there could be, or were thousands of competitors. In 1969 just about every
town had at least one independently owned newspaper. Is that even close to
today’s truth? AND because the papers would theoretically AVOID talking about
controversial subjects if required to present opposing views that used up their
time and money, so the Fairness Doctrine was thought to be capable of LIMITING
speech, rather than aiding it.
Radio stations and TV was still
considered a “scarce” resource in 1969, as the thought was that 1,000s of new
stations would appear in time (in part because the FCC limited wattage! So an
individual station had (has) a limited broadcast area. So there ARE now thousands
of music stations around the country. How many independently owned news/talk
radio stations are there?? And, what is their reach? Or are they almost 100%
NETWORK owned?)
Bring back Wolfman Jack! Oklahoma
needs him! And I don’t mean on Sirius radio either… For those too young to get
the reference, Wolfman Jack operated on a station that had their broadcast
tower in, I believe, Rosarita, Mexico. They flaunted EVERY rule the FCC came up
with, starting with broadcasting at 250,000 watts! And, yes, they could and did
reach folks in Oklahoma. Oh! And they were strictly a music station, no news,
opinion, or politics (except the politics of sticking it to the FCC just by
existing). They did operate for the AD revenue though... The original Pirate Radio…
And that is what folks wanting “independent”
facebooks, yahoos, and you-tubes are asking for. Except there is no Wolfman
Jack(or radio station XERB) today capable of even the relatively easy technology of radio, let alone
the internet.(Even XERB operates at 25,000 watts today...)
So, now we come full circle and
forward 50 years to the internet giants. Who claimed before Congress that they
were not broadcasters, publishers, or editors of content, and therefore did not
need to be licensed or regulated because they were content neutral…
Once
again from the USSC Red Lion Broadcasting Co.
“The
First Amendment does not protect private censorship by broadcasters who are
licensed by the Government to use a scarce resource which is denied to others.”
So, if they are “content neutral” they should
be made to explain their shadow banning and removal of opinion they do not
like. If they are NOT “content neutral”, then they should be regulated and
licensed by Congress and the FCC. They can not have it both ways.
And,
“There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others....”
So, the internet giants did not WANT
to be regulated, because then they would have been required to actually BE
content neutral, which they have shown by their actions that they are not. They
do not want to “share the frequency” with folks who disagree with them. They
claim they are the public square; but only their politics are to be heard there. The government has every right to break them up, as they are operating
as a monolith to limit First Amendment rights; or control them to make sure they
ARE content neutral.
They do not have a First Amendment right to limit speech;
that right belongs to their viewers, readers, and listeners.
So, hit them with anti-trust
regulations, AND insist they be licensed by the FCC, and are required to BE “content
neutral”
