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Legal Commentary

: Balkinization

The Fairness Doctrine and the Blogosphere

By Jack M. Balkin

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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.

Full post as published by Balkinization on October 14, 2008 (boomark / email).