Start your own company they say, it'll be fun they say...

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.

From Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)

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:

“

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 427^th 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.

v. FCC, 395 U.S. 367 (1969)…

“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”