Friday, February 20, 2009

Good luck with that online 'Fairness Doctrine'

For the past few days, the online world has been a-buzz with reports that Rep. Henry Waxman, the powerful chairman of the House Energy and Commerce Committee, wants to control what people can say not just in radio and television broadcasts, but also over the Internet. It's important to note that Waxman and company deny the report of a new "Fairness Doctrine," with a committee spokesperson calling the report "false." Take the assurances of government officials for what they're worth -- less than you paid for them. But as oppressive as the idea of government regulation of speech is, it's fair to say that censorship of the Internet wouldn't just be legally challenging -- it would be damned near impossible.

According to the original report on The Prowler blog at The American Spectator:

"Does one radio station or one station group control four of the five most powerful outlets in one community? Do four stations in one region carry Rush Limbaugh, and nothing else during the same time slot? Does one heavily trafficked Internet site present one side of an issue and not link to sites that present alternative views? These are some of the questions the chairman is thinking about right now, and we are going to have an FCC that will finally have the people in place to answer them."

Legally speaking, it's difficult to see what basis the U.S. government would have for regulating Internet content. Since Reno v. ACLU, when Supreme Court Justice John Paul Stevens wrote that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet," the courts have largely treated online media as due the same protections as print media, with little room for government control of content.

That stands in welcome contrast to the latitude the courts have granted politicians to meddle, at least initially, in other new technologies, such as cinema, radio and television. As Robert Corn-Revere wrote in an overview of electronic free speech for the First Amendment Center, "contrary to the First Amendment tradition, the electronic media tend to be born in captivity."

Of course, the rationale for regulating broadcast media has long been that it's a special case since radio and TV stations use the "public airwaves" and therefore have a duty to tailor their content to the public interest -- as interpreted by government officials.

But the "public airwaves" argument has a dubious history. It was pretty clearly cooked up as a deliberate end-run around First Amendment protections, as something censors could hang their hats on when arguing for the power to control a new medium that promised to rival print in reach and popularity.

In his 1991 book, Freedom, Technology and the First Amendment, author Jonathan Emord wrote:

As early as the First National Radio Conference in 1922, Secretary of Commerce Hoover had said that the "ether" was a "public" medium. By the Fourth National Radio Conference in 1925, he had developed a theory that the entire broadcasting industry was one necessarily imbued with a "public" character, that is, a nature that must be under government controls to ensure that it presented programming in the "public interest." ...

In Hoover's view, the broadcaster's freedom of speech had to be suppressed to ensure the propogation of a "preferred" message, one tailored by government for the benefit of the listening public. ...

Born two centuries earlier, Hoover might have argued that newsprint and ink were national treasures that should be safeguarded by the state -- and carefully doled out only to "responsible" publishers. We're lucky Hoover wasn't born early enough to wear a tricorn hat, because the courts bought his self-serving reasoning (except for Supreme Court Justice William O. Douglas, who once wrote, "The Fairness Doctrine has no place in our First Amendment regime.").

Dubious as the "public airwaves" argument is, it doesn't apply to the online speech. The courts have returned to First Amendment sanity with their rulings regarding the Internet. Cyberspace hasn't been declared some sort of public trust subject to political whim, and regulators have been given no authority over a medium where publishers operate subject to rules similar to those applied to newspapers and magazines. It's difficult to see legal doctrine toward the Internet changing so dramatically that speech protections would be as hobbled for Websites and Vloggers as they are for radio stations.

But there's a bigger hurdle to an Internet Fairness Doctrine than the Constitution: the ease with which it can be evaded by publishing beyond the reach of the law. Even during the early days of broadcast regulation, some radio entrepreneurs escaped the clutches of the Federal Radio Commission (later the FCC) by setting up stations in Mexico. Laws stop at the border, but radio waves do not, so outlaw broadcasters ran souped-up transmitters to the delight of their audiences -- and the dismay of the "public airwaves" types. Broadcast content regulations are less onerous (for the moment) than in the past, so border radio is no big deal these days -- but it still exists.

But radio stations have to cluster near the border to be relevant, even as they evade the censors. Internet operations can be based anywhere. Try pulling up the Sydney Morning Herald some time. You'll never notice, but those servers are a long ways from here. Well, unless you're Australian, of course, in which case you're proving my point by scanning these words at The Examiner.

Even assuming some sort of Internet Fairness Doctrine could pass legal muster, how would it be applied to Websites that suddenly shifted all their content to servers in Antigua, or Holland, or Estonia? It'd be like border radio all over again, except that free speech entrepreneurs could do their business from cafes in Prague instead of dusty towns in Mexico.

This is hardly a new concept. Even China, which built censorship into its Internet connections, has trouble controlling access to forbidden content based beyond its borders.

Whether or not Rep. Henry Waxman actually has any interest in regulating online speech with a new and more overbearing than ever Fairness Doctrine, I have no doubt that some officials would love to give it a try. They wouldn't be in government if they didn't love the idea of control.

But if they ever tried, it would be one of the more widely defied and ineffective regulations ever imposed by the U.S. government.



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