Whenever one of my posts addresses America’s problem with disinformation, at least one commenter will call for re-institution of the Fairness Doctrine–despite the fact that, each time, another commenter (usually a lawyer) will explain why that doctrine wouldn’t apply to social media or most other Internet sites causing contemporary mischief.
The Fairness Doctrine was contractual. Government owned the broadcast channels that were being auctioned for use by private media companies, and thus had the right to require certain undertakings from responsive bidders. In other words, in addition to the payments being tendered, bidders had to promise to operate “in the public interest,” and the public interest included an obligation to give contending voices a fair hearing.
The government couldn’t have passed a law requiring newspapers and magazines to be “fair,” and it cannot legally require fair and responsible behavior from cable channels and social media platforms, no matter how much we might wish it could.
So–in this era of QAnon and Fox News and Rush Limbaugh clones– where does that leave us?
The violence of Jan. 6 made clear that the health of online communities and the spread of disinformation represents a major threat to U.S. democracy, and as the Biden administration takes office, it is time for policymakers to consider how to take a more active approach to counter disinformation and form a public-private partnership aimed at identifying and countering disinformation that poses a risk to society.
Brookings says that a non-partisan public-private effort is required because disinformation crosses platforms and transcends political boundaries. They recommend a “public trust” that would provide analysis and policy proposals intended to defend democracy against the constant stream of disinformation and the illiberal forces at work disseminating it.
It would identify emerging trends and methods of sharing disinformation, and would
support data-driven initiatives to improve digital media-literacy.
Frankly, I found the Brookings proposal unsatisfactorily vague, but there are other, more concrete proposals for combatting online and cable propaganda. Dan Mullendore pointed to one promising tactic in a comment the other day. Fox News income isn’t–as we might suppose– dependent mostly on advertising; significant sums come from cable fees. And one reason those fees are so lucrative is that Fox gets bundled with other channels, meaning that many people pay for Fox who wouldn’t pay for it if it weren’t a package deal . A few days ago, on Twitter, a lawyer named Pam Keith pointed out that a simple regulatory change ending bundling would force Fox and other channels to compete for customers’ eyes, ears and pocketbooks.
Then there’s the current debate over Section 230 of the Communications Decency Act, with many critics advocating its repeal, and others, like the Electronic Frontier Foundation, defending it.
Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish.
Most observers believe that an outright repeal of Section 230 would destroy social networks as we know them (the linked article explains why, as do several others), but there is a middle ground between total repeal and naive calls for millions of users to voluntarily leave platforms that fail to block hateful and/or misleading posts.
One possibility is that the current version of Section 230 could be replaced with a requirement that platforms use a more clearly defined best-efforts approach, requiring them to use the best technology and establishing some kind of industry standard they would be held to for detecting and mediating violating content, fraud, and abuse. That would be analogous to standards already in place in the area of advertising fraud….
Another option could be to limit where Section 230 protections apply. For example, it might be restricted only to content that is unmonetized. In that scenario, you would have platforms displaying ads only next to content that had been sufficiently analyzed that they could take legal responsibility for it.
A “one size fits all” reinvention of the Fairness Doctrine isn’t going to happen. But that doesn’t mean we can’t make meaningful, legal improvements that would make a real difference online.