Conservatives for the Fairness Doctrine
In many of the right’s legacy institutions, the prospect of regulating or breaking up Big Tech is regarded as an affront to any number of long-standing principles, from limited government and free markets to property rights and free speech. A more activist government stance in combating internet censorship “would be a huge mistake, and a repudiation of conservative principles for several reasons,” worries Competitive Enterprise Institute senior fellow Iain Murray. The Cato Institute’s Matt Feeney admonishes “some conservatives” who “claim to be supporters of free speech and the First Amendment all while seeking to undermine both” in their push to amend liability protections for platforms like Twitter and Facebook. Libertarian writer Yates Wilburn goes even further: Republicans singing the “siren song of big government moralism” on Big Tech have “abandoned nearly every conservative principle regarding free markets, limited government, and free speech in one fell swoop.”
But these arguments both misunderstand conservative principles and betray an ignorance of the conservative movement’s history. The resistance to any kind of political intervention in private monopolies of the public square relies heavily on the invocation of shallow Reagan-era slogans about small government and individual liberty, divorced from the traditional understanding of how or why those principles are rooted in a coherent national interest or a deeper common good. This is a distinctly modern perversion. In contrast to contemporary dogma, there is a long tradition of conservative public policy aimed at limiting the power of private communications media in the face of a changing technological landscape. In many ways, the ongoing debate over Big Tech is the reemergence of an intra-conservative rift that dates back to the 1980s: the battle over the Fairness Doctrine.
The Fairness Doctrine, officially adopted as a policy by the Federal Communications Commission in 1949, was the culmination of a half-century-long movement aimed at reining in a handful of powerful broadcast and radio corporations exercising a monopolistic control of the airwaves. Although the FCC rule exercised an enormous influence over the range and function of American media for almost four decades—and enjoyed relatively broad bipartisan support throughout that time period—the right has viewed it as an antiquated relic since it was repealed by the Reagan administration in 1987. In the current moment, it is rarely mentioned except as a libertarian boogeyman, invoked to accuse would-be Big Tech regulators and trust-busters of wanting the policy resuscitated.
But the conservative establishment was not always so monolithic on this issue. By the time the Fairness Doctrine came into the Reagan administration’s crosshairs in the late 1980s, many on the right had come to see it as a crucially important—and constitutionally sanctioned—means of resistance to an increasingly biased left-wing media ecosystem. This view, which counted among its proponents such staunch conservatives as Pat Buchanan and Phyllis Schlafly, is a testament to the historical oddity of the modern right’s libertarian orthodoxy on media power. “The movement to end the Fairness Doctrine was from a pretty specific ideological slice of the whole breadth of the conservative movement,” says Victor Pickard, a professor of media policy and political economy at the University of Pennsylvania. “Historically, many leading conservatives supported the Fairness Doctrine. It was a very narrow market libertarian movement within the conservative camp that really led the repeal.”
The central purpose of the Fairness Doctrine was to prevent an ideological monopoly over radio broadcasting through a set of FCC rules dictating that public issues be covered with “full and equal opportunity for the presentation to the public of all sides.” In practice, this meant content regulations encouraging a certain amount of balance in the political slant of shows, and even mandates that compelled politically skewed stations to give airtime to dissenting voices in extraordinary circumstances. These policies were justified by the fact that powerful broadcasting corporations were directly benefiting from exclusive government-provided licenses to the airwaves and could therefore be reasonably expected to adhere to basic standards of balance and fairness in return. “It wasn’t just this technocratic concern about managing traffic over the public airwaves,” says Pickard. “The concern was about concentrated commercial and political power, and the recognition that there were very predictable harms that would come about if we did not regulate or try to break up those concentrations.”
Despite the Reagan FCC’s repeal of the Fairness Doctrine in 1987, a half-century of Supreme Court decisions repeatedly affirmed the rule’s constitutionality in rulings that offer ample political, legal, and philosophical precedents for the modern debate over the internet, free speech, and public policy. Most significantly, the 1943 case National Broadcasting Co. v. United States provided the core legal foundation for the Fairness Doctrine by holding that the denial of a broadcasting license to a private entity for falling short of content standards did not violate said entity’s right to free speech. That decision, and a long line of subsequent ones, enumerated a legal understanding of free speech in which the broad principle of a free marketplace of ideas enshrined in the First Amendment can supersede the absolute private right against government intervention when the two come into conflict.
In Red Lion Broadcasting Co. v. Federal Communications Commission, a unanimous 1969 decision that upheld the constitutionality of the Fairness Doctrine in full, Justice Byron White made this point explicit: “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, whether it be by the government itself or a private licensee.”
This conception of free speech, which directly contradicts the libertarian argument that the First Amendment proscribes regulating or breaking up overpowerful private internet platforms, enjoyed the support of a substantial number of conservatives before Reagan. The Nixon administration repeatedly used the “public interest” regulations promulgated by the Fairness Doctrine to push back against media bias. Activists like Buchanan and Schlafly were joined in their opposition to the Reagan FCC’s deregulatory push by prominent Republican congressmen like Newt Gingrich and Trent Lott, both of whom led the charge to reinstate the Fairness Doctrine through the Fairness in Broadcasting Act of 1987, which passed Congress with a bipartisan majority but was unable to muster the two-thirds threshold necessary to avoid President Reagan’s veto.
The list of prominent pro–Fairness Doctrine conservatives ranges from figures like National Review publisher Bill Rusher to influential organizations like the National Rifle Association and Accuracy in Media. In a 1983 report, AIM bemoaned “the Reagan appointees to the FCC…openly campaigning to abolish the Fairness Doctrine,” which the prominent right-wing organization attributed to “the libertarian philosophy of FCC Chairman Mark Fowler, who seems to feel that organizations such as ABC News will do the right thing in the absence of any threat of governmental sanction if they don’t.” Even within the Reagan administration itself, high-ranking officials such as chief domestic policy adviser Gary Bauer warned the president against his libertarian instincts on the issue.
This forgotten history should make us suspicious of the accusation that contemporary efforts to reassert the sovereignty of the American nation-state over Big Tech’s pseudo-statal ambitions are a betrayal of conservative principles. To the contrary, such efforts draw from a long tradition on the right. Then, as now, disagreements over media power and public policy point to a deeper division in the right’s understanding of core political and philosophical questions: What is free speech exactly? Is it simply the absence of government intervention in political discourse? Or is it a more expansive principle that recognizes the role of a functional public square in the broader common good, embedded in a centuries-old political tradition that carries certain obligations for both public and private institutions alike?
We need not look too far outside the mainstream of American conservatism to find satisfactory answers to this question. As the right’s traditional friendliness towards the Fairness Doctrine demonstrates, a better understanding of our own political tradition can help show a way forward for the resuscitation of a comprehensive conservative approach to shaping a healthy and free public square. “This is what I think people really miss—traditional conservative thought has always understood that business doesn’t exist as an end unto itself,” says Rachel Bovard, the senior director of policy for the Conservative Partnership Institute. “The market reflects the policies we set for it. And in our common law tradition, going back hundreds of years, we’ve always relied on our public policy to make decisions surrounding technologies that began to change the parameters of the social order. We have centuries of accumulated wisdom about how to solve this problem.”
The Fairness Doctrine itself provides a useful framework for contemporary questions surrounding Big Tech. The court decisions upholding the FCC policy relied on a legal theory called the scarcity rationale, which held that the lack of widespread access to radio and television airwaves—both in terms of the scarcity of access to airwaves and the scarcity of the government-issued licenses necessary to access the airwaves—provides a constitutional justification for content requirements. “As one licensed to operate in a public domain, the licensee has assumed the obligation of presenting all sides of important public questions fairly, objectively and without bias,” the FCC argued in 1940. Enshrining this principle in Red Lion Broadcasting Co., Justice White wrote: “The First Amendment confers no right on licensees…to an unconditional monopoly of a scarce resource which the Government has denied others the use… There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.”
What are Twitter and Facebook if not media not open to all? And what are the abundant protections that tech companies enjoy under legislation like Section 230 of the 1996 Communications Decency Act—which effectively immunizes social media platforms from lawsuits by holding 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” —if not scarce government provisions? As Daniel Oliver points out in the most recent issue of the Claremont Review of Books, “tech companies didn’t achieve their monopoly positions in a free market” but benefited from “a legal and regulatory environment that gave tech companies a massive advantage over their non-tech competitors.” From the perspective of the scarcity rationale, policies like Section 230’s special liability protections are not entirely dissimilar to the special benefits enjoyed by the holders of broadcast licenses in the middle of the 20th century.
Section 230 also means that the U.S. government is protecting, if not actively endorsing, Big Tech’s content regulation practices, empowering platforms to act as arbiters of the marketplace of ideas without any of the First Amendment protections that would normally be ensured in a traditional public square. The notion that the government is obligated to provide scarce protections and procurements to tech conglomerates without asking for anything in return is completely disconnected from traditional American conceptions of limited government and free speech. “It’s not punitive for the government to decide or to change the criteria by which these companies should benefit from this privilege,” says Bovard. “Changing the balance of Section 230 is not big government. If companies don’t want to comply with it, they don’t have to. That is not punitive. No one is forcing them into this.”
This points to a blind spot in what Bovard describes as the “historical anachronism” of the libertarian orthodoxy that took hold on the heels of the Fairness Doctrine’s demise in the late 1980s. But the current moment comes with new opportunities to revisit old arguments. While the conservatives who favored tighter regulation of private ideological monopolies were in the minority in the Reagan era, the modern right’s reinvigorated interest in the older consensus surrounding media and tech regulation has reversed this dynamic. Now, defenders of the libertarian construction are the ones on the back foot. As Rep. Jim Banks told Politico in January, reining in Big Tech “is what the Republican Party base is demanding… What was a fringe issue four years ago is now, I believe, a widely accepted part of the Republican Party platform.”
The name-brand titans of Silicon Valley pose a far more potent threat to the American public square than the media conglomerates that the Fairness Doctrine aimed to regulate, and simultaneously benefit from the same kind of targeted special treatment that has repeatedly been held to justify government intervention. The right should have no constitutional qualms about expecting more from these platforms. The history of conservative support for public interest media regulation measures should also invalidate the accusation that such an effort would be un-conservative.
Libertarian opponents of tech regulation “cherry-pick at the history of conservatism,” says Joel Thayer, a tech and telecommunications attorney who serves as outside counsel for the Lincoln Network. “I just think libertarians have forgotten or want to forget exactly how conservative principles have been applied on this issue in the past, because that history is inconvenient.” This is clearly the case with the Fairness Doctrine, which Schlafly credited with the success of her career-defining defeat of the Equal Rights Amendment. “Of all the coverage on the ERA, over 95 percent of it on TV was pro-ERA and only five percent of it was against the ERA,” she said while testifying before the FCC in 1984. “If it weren’t for the Fairness Doctrine, we couldn’t have gotten even that measly five percent.”
Of course, not everyone on the right agreed with this position. Rush Limbaugh, for example, famously crusaded against attempts to reinstate the policy in the early 1990s, dubbing it the “Hush Rush Bill.” But the anti-Fairness Doctrine position of rank-and-file conservatives like Limbaugh was more pragmatic than principled; in contrast to the philosophical opposition of the libertarians in Reagan’s FCC, the talk show host’s main objection was that his influence over the airwaves had flourished in a post-Fairness Doctrine world and that it would be diminished by the reinstitution of the FCC rule—not that the rule itself was an unconscionable affront to the Constitution.
Similar objections are made by today’s opponents of political intervention in Big Tech: It will hurt conservatives more than it will help. There are versions of these material concerns that should be taken seriously. Practically speaking, the Fairness Doctrine itself is probably an unworkable framework for regulating internet platforms. But as a broader framework, the regulation’s underlying rationale provides a powerful legal, political, and constitutional basis for bringing Big Tech to heel. “It is constitutional,” Thayer says. “The question is implementation…but the Fairness Doctrine gives us principles we can apply.”
“We should put these companies in a position where they have to make a choice,” he adds. “Either you’re a common carrier, or you’re a publisher. If you’re a publisher, great, we don’t have the right to tell you anything—you’re protected by the First Amendment, and something like the Fairness Doctrine wouldn’t apply to you. But if you want the legal protections from Section 230, you have to follow the principles of something like the Fairness Doctrine.”
Debates over what that looks like in practice are entirely legitimate. What is unconvincing is the idea that the initiative itself is an affront to first principles. Even on the grounds of the classical liberal political philosophy that is often invoked by opponents of tech regulation, there is ample justification for a departure from the strict libertarian construction. Liberal titans like John Locke argued fervently against the toleration of atheism in the public square, while John Stuart Mill made the case for free speech as an ethic, maintaining that a society organized around a respect for the free and open exchange of ideas was best suited to secure the common good—not that major concentrations of private power should be guaranteed an absolute freedom from government regulation in all cases.
Resistance to reforming Big Tech is “a distortion of Lockean liberty,” says Bovard. “It actually betrays classical liberalism in ways that aren’t discussed enough. What the people who oppose regulating tech companies are arguing for is actually something that shrinks the space that individuals can freely act, and instead empowers a sort of inquisitorial agenda. That isn’t actually libertarianism or conservatism. It’s corporatism.”
Free and open political debate is a bedrock of the American way of life. While most of our purportedly enlightened allies in parliamentary democracies throughout the modern West have passed significant restrictions on the freedoms of speech and association, usually in the name of combating bigotry and extremism of one kind or another, our liberties, beleaguered as they may be, have fared relatively well compared to their counterparts. It is a testament to the far-sighted wisdom of the Framers that the First Amendment stands beyond the reach of majorities, insulated from the momentary anti-republican impulses of the popular will. On that score, conservatives of every ideological stripe can and should agree. But the Constitution is not a suicide pact. It is not blind to a prudent national interest, nor is it immune to the just limitations that the public welfare imposes on the exercise of unrestrained and destructive private power.
Nate Hochman is a 2021 Publius Fellow at the Claremont Institute and a recent graduate of Colorado College.