Balkinization  

Tuesday, October 14, 2008

The Fairness Doctrine and the Blogosphere

JB

Glenn Reynolds and other conservative bloggers are worried that an Obama victory will result in bringing back the Fairness Doctrine. One has even wildly suggested that the Democrats will try to turn the push for network neutrality into a means for impose the Fairness Doctrine on bloggers. Both of these fears are misguided.

First, I do not believe that the Fairness Doctrine is coming back, even if the Democrats win the White House and increase their margins in Congress. I once thought there was an outside chance of its returning, but I'm quite convinced now that there is no chance. Many, many people on the left, myself included, think it is bad policy and oppose it. Perhaps more to the point, so too do major contributors to both political parties. And if virtually all the major players in the telecommunications and media industry are against it, it's unlikely that Congress would revive it.

The Fairness Doctrine didn't work very well in an age dominated by television and radio; it makes absolutely no sense in a digital age. Because of the widespread opposition it would generate, it is a non-starter. Conservatives may be using fears of the Fairness Doctrine as a bogeyman to scare the base, but it's simply not going to happen.

As for the idea that Fairness Doctrine would somehow apply to bloggers, the idea is completely ridiculous. The Fairness Doctrine is premised on the (spurious) claim that the broadcast spectrum is scarce in a way that other resources are not scarce and therefore government regulation of this sort is justified. Even if one accepts the scarcity argument for the Fairness Doctrine (which I do not), it has no application to the world of the blogosphere, where anyone can start a blog (or two or three or more).

Second, the debate over network neutrality has absolutely nothing to do with the Fairness Doctrine or its possible imposition on bloggers. In fact, network neutrality is a way of making sure that nobody-- whether the state or private parties-- censors a blogger because they run a site that is only liberal, or only conservative, or only gives one side of a controversy. It is the exact opposite of the Fairness Doctrine. The point of network neutrality is that broadband owners who provide last mile service to end users may not discriminate against content or applications flowing through their conduits (with various potential exceptions for reasonable network management). So if Rush Limbaugh wants to run a strongly conservative web site, network neutrality means that Comcast may not slow down his traffic because it doesn't like his message or wants him to provide both sides of a controversy; nor may the Federal Government force him to put content on his blog that he disagrees with.

But the real point of network neutrality goes well beyond issues of potential state and/or private interference with political expression. It seeks to promote innovation in new technologies and business models by decentralizing who makes decisions about innovation so that broadband providers do not act as gatekeepers for what kinds of applications may be used on the Internet. Network neutrality is a pro-innovation policy that allows a decentralized group of people and new businesses to come up with new applications that end users will want. That is a position that many conservatives-- at least libertarian conservatives-- should find immensely appealing.

Comments:

A curiosity: Although almost no one has noted it, the *Bush* Administration has recently invoked the scarcity rationale as one ground for upholding the constitutionality of the FCC's broadcast indecency regime: See page 20 of this brief --

http://www.usdoj.gov/osg/briefs/2008/3mer/2mer/2007-0582.mer.rep.pdf

I don't think this (or any other) Administration would defend the fairness doctrine, at least on policy grounds. But it's remarkable, isn't it, that here we have the Bush Administration arguing that the First Amendment should have less bite in the context of television and radio because of spectrum scarcity -- citing Red Lion!
 

"The Fairness Doctrine is premised on the (spurious) claim that the broadcast spectrum is scarce in a way that other resources are not scarce and therefore government regulation of this sort is justified."

If it's a spurious claim, and I agree, then what's the difference? It would be equally false as applied to the internet, and it would equally not matter. Once you've decided that your rationales for a policy don't have to genuinely make sense, the sky is the limit.

We're far more likely to see an attack on freedom on the internet by way of campaign 'finance' regulation, by declaring the value of computers hosting any political commentary to be in kind political donations, to be reported and regulated.

But I do agree the network neutrality connection is a stretch.
 

hope this appears once only: seemed to get lost in upload a minute ago,

The author's post takes a balanced view, there is too much bandwidth in modern communications for the narrowband fairness doctrine to return to aegis. However, the net neutrality paradigm continues subject to the shifting currents of both legislatures and industrial consortia. Tech development timelines extend beyond a 5-year horizon, and bandwidth availability is a factor in the equations, for example, concerning number of 'transistors' on an integrated circuit chip. When old fiberoptic technology had a bandwidth problem in the 90s, technologies like orthogonal wave division multiplexing and frequency agile sensing and hopping leaped to the fore to provide new ways to utilize available spectrum. It seems the fairness genie long since vaporized from the amphora. Though, it is true that FCC still holds amusing sway trying to regulate the burgeoning media online.
 

Jack:

You may want to read Michael Barone's recent article "The Coming Obama Thugocracy" before you suggest that the Dems will not push for the return of the "Fairness Doctrine" to silence the opposition.

Barone is hardly a hyper partisan bomb thrower and his article runs down the examples of the Obama campaign's efforts to silence the opposition. Why should this MO change if Obama assumes power?

The blogosphere has been reporting on these incidents for months, so feel free to fact check Barone.
 

The Fairness Doctrine is premised on the (spurious) claim that the broadcast spectrum is scarce in a way that other resources are not scarce

So if I set up a radio tower in my front yard tomorrow the FCC won't shut me down? That's wonderful news. Clear Channel, eat your heart out!

Oh, the FCC will shut me down? Why's that?
 

Barone is hardly a hyper partisan bomb thrower

Baghdad, do you see yourself as a hyper partisan bomb thrower?
 

Lttle Lisa's bro should be more concerned with the "Fey-ness Doctrine."
 

"Bart" DeFlacka:

You may want to read Michael Barone's recent article "The Coming Obama Thugocracy" before you suggest that the Dems will not push for the return of the "Fairness Doctrine" to silence the opposition.

Rrrrrriiiggghhhttt. Michael Barone is a moderate centrist ... according to "Bart". You can tell by the use of the term "Obama thugocracy" there, just in case you had any doubts. So we should believe every word he says like golden pearls of wisdom dropped from on high....

Cheers,
 

JB,

I think perhaps you do the cause of net neutrality a disservice by quoting the likes of Reynolds as if their complaints were substantively legitimate. I'm happy to read your views supporting net neutrality and the Fairness Doctrine, but I humbly suggest you have lent unwarranted and undeserved credence to nonsensical rhetoric here.
 

Arne:

Barone is a sober numbers cruncher who specializes in precinct level voter analysis. The fact that he actually showed some emotion and used the term "Thugocracy" in the title of his piece shows how disturbing he found the reports.

The question is why you are not similarly upset by brownshirt thug tactics like shouting down speakers, Dem government attorney's threatening criminal prosecution of citizens who made "false" statements about Obama, and a political campaign calling for DOJ to prosecute a 527 group for running truthful commercials about Obama's years long and intimate relationship with the Bill Ayers, the left's version of Timothy McVeigh?

Tell me exactly why a candidate who called for DOJ criminal prosecution of political opponents should not be expected to carry out his threats if elected to control over DOJ?

You really need to take a hard look at the man you support for President.
 

The fact that he actually showed some emotion and used the term "Thugocracy" in the title of his piece shows how disturbing he found the reports.

# posted by Bart DePalma : 4:36 PM



No, it just means that he's a rightwingnut propaganda spewing hack, just like you.

You need to take a hard look in the mirror
 

You'd think the right wants the fairness doctrine as the media is controlled by liberals anyway. *do not fall into my sarchasm*
 

@Kyle: One won't do, I award you two shay. ;)
 

@JB: The second link in your post includes the following: "the biggest potential danger of neutrality is that its concern for equal treatment of bits will extend to sites' content, creating a kind of Fairness Doctrine for the Web, as FCC Commissioner Robert McDowell has warned — and as Obama adviser and law professor Cass Sunstein once called for." Any idea what he's talking about here? This would seem to be the moment of illegitimate conflation of Net Neutrality with Fairness Doctrine. Might be nice to know exactly which statements by who are being spun here. Do you suppose Professor Sunstein ever called for an application of the Fairness Doctrine to blogs?
 

"Bart" DePalma:

Barone is a sober numbers cruncher who specializes in precinct level voter analysis....

Translated from Republican into English: "A RW foamer for Faux Snooze/ClownHall".

... The fact that he actually showed some emotion and used the term "Thugocracy" in the title of his piece shows how disturbing he found the reports.

I don't give a damn about how "disturbing" some Faux Snooze foamer finds anything....

The fact he used "thugocracy" means he's gone off the end.

The question is why you are not similarly upset by brownshirt thug tactics like shouting down speakers, ...

Huh? Why, the RW never does that kind of sh*te.... They just yell "traitor", "kill him" and stuff at their gatherings.

... Dem government attorney's threatening criminal prosecution of citizens who made "false" statements about Obama, ...

Cites, please. To something other than Faux Snooze or ClownHall.

... and a political campaign calling for DOJ to prosecute a 527 group for running truthful commercials about Obama's years long and intimate relationship with the Bill Ayers, the left's version of Timothy McVeigh?

Wow. Ayers is the left's "Timothy McVeigh. Minus 167 bodies, many of them children....

But once again, cites? You know, real ones? To the "long and intimate relationship"?

Tell me exactly why a candidate who called for DOJ criminal prosecution of political opponents should not be expected to carry out his threats if elected to control over DOJ?

Since when has Obama called for any such thing?!?!? Once again, cites. You know, real ones???

As for prosecution of political opponents, then we have the U.S. Attorneys scandal.....

Cheers,
 

Here's some sapient and spittle-free reporting on the Missouri stuff. I like the part at the bottom:

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Attacking Obama's Missouri ‘Truth Squad’

September 29, 2008 11:12 AM

Republicans -- led by the Governor of Missouri and the Republican National Committee -- are alleging that there is something untoward about the "Truth Squad" the Obama campaign has set up in the "Show Me" State. The problem, these Republicans say, is that these "Truth Squad" members are prosecutors and sheriffs with law enforcement powers, thus creating an atmosphere where Missourians might be afraid of being prosecuted for criticizing Sen. Barack Obama, D-Ill.

There is no evidence, however, that these prosecutors are threatening to use their prosecutorial powers in such a way.

And despite GOP complaints that the mere presence of prosecutors on the "Truth Squad" could intimidate Obama's critics, Sen. John McCain, R-Ariz., and his running mate Alaska Gov. Sarah Palin have used prosecutors on their "Truth Squads" too, prompting no complaints from the GOP at the time.

**

The Missouri Truth Squad, an Obama campaign press release stated last week, would “respond quickly, forcefully, and aggressively when John McCain or his allies launch inaccurate claims or character attacks about Barack Obama, or when they distort Barack Obama’s record or plans.”

So what's the problem?

Many of the Obama Missouri Truth Squad members have law enforcement powers, such as St. Louis County Circuit Attorney Bob McCulloch, St. Louis City Circuit Attorney Jennifer Joyce, and Jefferson County Sheriff Glenn Boyer.

A local TV story took those facts and then stated that, "Senator Barack Obama's presidential campaign is asking Missouri law enforcement to target anyone who lies or runs a misleading television ad during the presidential campaign," which doesn't seem a fair representation of the formation of the "Truth Squad."

Republicans immediately began painting this as a situation where the Obama campaign is using its law enforcement friends to threaten to lock people up if they say something negative about Obama.

Gov. Matt Blunt, on official state stationery, said, “What Senator Obama and his helpers are doing is scandalous beyond words, the party that claims to be the party of Thomas Jefferson is abusing the justice system and offices of public trust to silence political criticism with threats of prosecution and criminal punishment."

None of the prosecutors or sheriffs on the "Truth Squad" have said they'd use their law enforcement powers as part of their task as "Truth Squad" members.

But Blunt said that wasn't the point.

"The only conceivable purpose of Messrs. McCulloch, Obama and the others is to frighten people away from expressing themselves, to chill free and open debate, to suppress support and donations to conservative organizations targeted by this anti-civil rights, to strangle criticism of Mr. Obama, to suppress ads about his support of higher taxes, and to choke out criticism on television, radio, the Internet, blogs, e-mail and daily conversation about the election," Blunt said. "Enlisting Missouri law enforcement to intimidate people and kill free debate is reminiscent of the Sedition Acts - not a free society.”

St. Louis County prosecutor Bob McCulloch called the notion that he was going to use his official powers to prosecute people who lie about Obama "nonsense."

"I don't know what charge anybody could be talking about there is no such thing; libel is a civil matter entirely," McCulloch said. "What I said was if it is a lie I'll call somebody on it and say that's a lie; tell us the truth. That gets morphed by those with these very sinister motives," the prosecutor said. He added, "It's morphed into 'they are trying to intimidate people into not talking.'"

St. Louis City Circuit Attorney Jennifer Joyce added in a statement: "As a citizen, I believe that elections should be about issues. I also have enormous respect for our First Amendment and freedom of speech. My sole purpose in participating in this initiative is about getting truthful information to the voters. This has never been or never will be about prosecuting people. Clearly there are those who are attempting to twist the purpose of this initiative for their own benefit. This attack is a great example of how the truth is distorted in campaigns and what we’re trying to stand up against."

But the deputy chairman of the Republican National Committee, Frank Donatelli, told the News-Leader, that even though the Democratic prosecutors “haven’t specifically said” they would use their powers to fight for Obama, but “I don’t think you have to use the power. I think if you just call out somebody and you have the power, you’ve made your point. It’s not that you have to prosecute a guy, but people think you might.”

That's why prosecutors don’t typically become members of campaign truth squads, Donatelli said, because the prosecutor's presence on the truth squad “has a chilling affect on people’s rights of free speech.”

This story broke last week and has been building since.

Largely unreported is the dial-back from reporter John Mills, whose story seemed to imply exactly what the GOP is charging -- that Obama has enlisted a squad of prosecutors to go after anyone who criticizes the Democratic presidential candidate -- but has since said that "in the retelling of the story, it got out of control."

“If they think a group has put out a misleading ad, they’re basically going to call a press conference and say the ad is misleading," Mills told the News-Leader yesterday. "I’m sure the Republicans would do the same thing."

Of the concern that prosecutors should not be on truth squads -- which may seem a legitimate criticism -- it could be observed that McCain's South Carolina primary "Truth Squad" included Attorney General Henry McMaster and Seventh Circuit Solicitor Trey Gowdy, a prosecutor.

The recently created "Palin Truth Squad" includes District Attorney of Dona Ana County (NM) Susana Martinez.


Cheers,
 

"Tell me exactly why a candidate who called for DOJ criminal prosecution of political opponents should not be expected to carry out his threats if elected to control over DOJ?

"You really need to take a hard look at the man you support for President."


Obama hasn't called for the prosecution of political opponents -- he's called for the investigation of criminal wrong-doing, and for prosecutions when the facts warrant.

I've spent literally seven years investigating the crimes of the war criminals you apologize for with such utter dishonesty, you vile hypocrite -- and I was an former conservative Republican who hadn't voted since 1986. My problem was simple: I don't like fascist war criminals, American fascist war criminals least of all.

So just take your lying "advice" and shove it you murderous creep: nobody is calling for anything except the faithful execution of the laws -- something we haven't had for nearly eight years now under the Bush gang.
 

The original post says,
>>>>>> First, I do not believe that the Fairness Doctrine is coming back, even if the Democrats win the White House and increase their margins in Congress. I once thought there was an outside chance of its returning, but I'm quite convinced now that there is no chance. <<<<<<

That is just plain wrong -- restoring the broadcasting Fairness Doctrine has a lot of support in Congress right now. Supporters of the broadcasting Fairness Doctrine succeeded in blocking House and Senate bills that would prohibit the FCC from restoring the doctrine -- see this and this on my blog. The Senate bill has 35 cosponsors and the House bill now has 208 cosponsors (plus the sponsors) and still have not been able to get out of committee. However, bills to restore the broadcasting Fairness Doctrine have so far not attracted much attention -- maybe one of the reasons for that is that the broadcasting Fairness Doctrine can be restored by the FCC without Congressional action. Also, your original post failed to mention liberals' resentment of conservative hosts' near-monopolization of talk show radio -- see this, this, and this on my blog.

>>>>>> As for the idea that Fairness Doctrine would somehow apply to bloggers, the idea is completely ridiculous. <<<<<<

You are completely ridiculous. I am in favor of laws, regulations, policies, and customs that would ban or discourage arbitrary censorship of visitors' comments on blogs, with an exception for bloggers who post a prominent notice stating that they practice such arbitrary censorship. My reasons are as follows:

(1) Comment space on blogs -- unlike comment space in newspapers, magazines, and broadcasting -- is unlimited and free or virtually free. Hence there is no need to pick and choose which comments to post.

(2) Some of the more popular blogs have become de facto public forums.

(3) Blogs are authoritatively cited by scholarly journal articles, court opinions, the established news media, and other authorities. This makes it especially important that blogs be (1) as accurate as possible on the facts (blogs cannot be "self-correcting" if inconvenient facts in the comment sections are censored) and (2) fair in presenting different views. Courts, scholarly journals, etc. should have policies prohibiting citation of blogs that practice arbitrary censorship of visitors' comments.

(4) BVD-clad bloggers are seeking special privileges -- e.g., a "reporter's privilege" that would allow them to keep their confidential sources secret -- and so should accept some responsibilities.

>>>>>> Even if one accepts the scarcity argument for the Fairness Doctrine (which I do not), it has no application to the world of the blogosphere, where anyone can start a blog (or two or three or more). <<<<<<<

That is just an asinine "let them eat cake" argument -- why should someone have to start a new blog just to post a single response? And posting a response on another blog -- whether one's own blog or someone else's -- is not going to reach the original readers of what one is responding to.

As for the argument that blogs are "private" property, there is no such thing as "private" property. You can be thrown in jail if you are found storing kiddie-porn in the "privacy" of your own home. Environmental laws and regulations can have the effect of virtually confiscating "private" land. Blogging is actually already heavily regulated -- see this.

Here are my legal arguments for a prohibition of arbitrary censorship of visitors' comments on blogs.

My articles about the Fairness Doctrine -- including proposals for a fairness doctrine for blogs -- are in this post label group on my blog (this group may also be found by clicking on the "Fairness Doctrine" post label in the sidebar of the homepage).

BTW, whatever happened to Part 3 of your "Fairness Doctrine" series of articles?
 

When people long for the Fairness Doctrine, and some people do, they aren't longing for the precise wording really. What they wish for is a return to real news. Elimination of the Fairness Doctrine was only one component of dismantling the news. The bigger components were the gradual loosening of any restraints on acquisition of news outlets, the end of a limit on advertisement time during the news (allowing the news to become 'for profit') and the end of the solicitations from the community to renew a broadcast license.

What is desired is that the news return to being news and not a vehicle for shoveling pharmaceuticals down the viewer's throat or a place for government funded military psyops people to execute a propaganda campaign to justify and promote support for a war. What's also desired is that news media not use the shield of anonymity to protect government officials who are engaged in manipulation instead of whistleblowers who expose wrongdoing.

I, for one, would welcome seeing as much brain energy from the legal community on how the citizenry can insure the free flow of news as they spend on why the Fairness Doctrine wasn't the way to do it.
 

BTW, regarding the House bill to bar the FCC from reinstating the broadcasting Fairness Doctrine, a House petition to bypass the committees and introduce the bill directly on the House floor got only 202 of the required minimum of 218 signatures. How do you explain that, Jack, if opposition to the broadcasting Fairness Doctrine is supposed to be so strong?

BTW, last year the House voted 309-115 to amend an appropriations bill to prohibit the FCC from using that bill's funds to enforce a Fairness Doctrine, but the amendment was a silly political gesture because the current Republican-dominated FCC is disinclined to restore the Fairness Doctrine anyway and because the prohibition won't prevent the FCC from restoring the Fairness Doctrine in the future (I don't know if the Senate adopted the prohibition). So the amendment just gave some House members the opportunity to get some Brownie points for giving the false impression that they are opposed to the broadcasting Fairness Doctrine.

I don't even see how a broadcasting Fairness Doctrine as its supporters envision it can even be implemented -- for example, it is often impossible to determine what is "liberal" and what is "conservative."

Also, regarding arbitrary censorship of blog visitors' comments:

Some blogs do not accept any comments from visitors. However, if a blog posts some proper comments from visitors, then it should post all proper comments from visitors, and if the blog won't do that, then the blog should be required to have a prominent notice stating that some comments from visitors are arbitrarily censored. A blog should not be allowed to give a false impression that no comments from visitors are arbitrarily censored, especially considering that blogs are authoritatively cited by scholarly journal articles, court opinions, the established news media, etc.. I think that's fair, don't you? And even if we don't have laws, regulations, or policies that prohibit or discourage arbitrary censorship of blog visitors' comments, we should at least have an Internet culture that severely frowns upon such censorship. That's not the Internet culture we have now. By your standards, Jack, censoring my comments here would be perfectly OK.

Perversely, it is usually the most persuasive dissenting comments that are censored. Unpersuasive dissenting comments are usually allowed to stay to show the supposed weakness of the opposition.
 

Larry Fafarman:

Some blogs do not accept any comments from visitors. However, if a blog posts some proper comments from visitors, then it should post all proper comments from visitors, and if the blog won't do that, then the blog should be required to have a prominent notice stating that some comments from visitors are arbitrarily censored.

Fallacy of bifurcation. Some comments may be non-arbitrarily deleted, even if they are purportedly "proper".

BTW, I'd note that you are the only one I know of that has managed to get a post deleted on Balkinization. That's quite a feat, given "Bart"'s continuing efforts at such....

Perversely, it is usually the most persuasive dissenting comments that are censored.

No. It's usually the kooks and nutcases that are borderline OCD that are deleted first. Of course, such people are absolutely convinced that their comments are the "most persuasive dissenting" ones...

Cheers,
 

As the saying goes, don't feed the trolls.

"I'm always kicking their butts -- that's why they don't like me."
-- Gov. Arnold Schwarzenegger
 

Larry Fafarman:

"I'm always kicking their butts -- that's why they don't like me."
-- Gov. Arnold Schwarzenegger


Larry: It's only a moooovviiieeeee.....

Which seems indicative of your problems.

Cheers,
 

>>>>>> Larry: It's only a moooovviiieeeee.....<<<<<<

No, it wasn't only a moovviiiieeee. It was from a public speech shown in a political ad on TV.

Even if it were just from a moooovviiieeeee, bozo, it would still be appropriate.

>>>>>> Which seems indicative of your problems. <<<<<<

One of your many problems, doofus, is that you think it is wrong to quote from a movie.

I'm the Terminator and you are the Terminatee. Hasta la vista, baby.
 

Questions for the great legal minds here:

(1) Suppose that a really popular blog accuses someone of, say, an infamous crime, and the blogger censors all comments that rebut the accusation. Could the blogger be sued for libel on the grounds that the censorship of the rebuttals shows "reckless disregard" of whether the accusation "was true or false" (New York Times v. Sullivan)?

(2) Court opinions occasionally cite blogs. Suppose that the Supreme Court cites a blog visitor's comment and that the citation is decisive in deciding the case. Suppose that the blogger disagrees with the comment and decides to censor it -- along with associated comments (in order to eliminate the context of the comment) -- because the Supreme Court cited it. Forget for the moment that the court could independently archive the original post and the comment thread (authorities citing Internet sources often fail to independently archive the source). Would such censorship be OK or not?

In answering these questions, please keep in mind that blogs are private property and that it is always legal and proper for bloggers to do whatever they want.
 

Larry Fafarman:

I'm the Terminator and you are the Terminatee. Hasta la vista, baby.

On the InterToobz, everyone's a freakin' hero. LOL.

In the minds of Republicans, their anointed are Superman, Batman, and Captain America all rolled into one. See Glenn Greenwald's books, John Dean's latest books, or Robert Altemayer's work for the sanguinary details. The sad part is the doofuses that end up on top (see "Dubya") come to believe this as well.

Cheers,
 

For those who doubt the intent of the so-called Fairness Doctrine, you need only read this quotation from a member of the Kennedy Administration:

""Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."
--Bill Ruder, Democratic campaign consultant and Assistant Secretary of Commerce, Kennedy Administration

It was never about "fairness," it was always about censorship of the Right.
 

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