The answers aren’t black-and-white.
America’s “equal time rule” isn’t applicable to political speech online and the Fairness Doctrine is long dead.
With Instagram’s IGTV, Facebook Watch, and millions of TV clips from the Fox News Channel to “The Late, Late Show with James Corden” all on social media, big tech companies obviously qualify as bona fide “broadcasters.”
With Instagram’s IGTV, Facebook Watch, and millions of TV clips on social media platforms, one could argue that big tech companies qualify as “broadcasters.”
However, tech companies don’t like that classification. Broadcasting entities are sometimes expected to adhere to the equal-time rule, which requires that U.S. radio and TV broadcast stations must give equivalent time to any political candidate whose opponent receives time.
This could be why Facebook TV’s name suddenly changed to the more general Facebook Watch.
The equal-time rule was created because the Federal Communications Commission (FCC) was concerned broadcasters could manipulate the outcome of elections by only telling one side of the story – a concept that sounds even more relevant today than during its inception nearly a hundred years ago.
Unfortunately, the equal-time rule – which originated in the 1920s for radio and was updated with the Communications Act of 1934– isn’t terribly strong.
The rule applies only to political candidates. Not to organizations, political causes, ballot measures, activists, nor other citizens voicing their opinions. It appears to have been suspended only once in U.S. history, in 1960, to allow for debates between then-candidates John F. Kennedy and Richard M. Nixon.
Since the rule applies only to candidates, it would do little to help organizations such as Project Veritas and others.
In addition to its limited scope, the equal-time rule has some hefty exceptions which make it nearly useless.
For example, there are four cases in which the rule does not apply: legitimate news interviews, documentaries, scheduled newscasts, or breaking news events.
Practically all news in today’s 24/7 news cycle is “breaking” or falls under one of these categories. Therefore, Twitter and Facebook could easily exempt these topics from such a rule.
Practically all news in today’s 24/7 news cycle is “breaking”.
A rule that might have been more helpful to conservatives than the equal-time rule with regard to today’s social media landscape is the “fairness doctrine.”
The “fairness doctrine,” introduced by the FCC in 1949, required broadcasters to present “issues of public importance and to do so in a manner that was – in the FCC’s view – honest, equitable, and balanced.”
It had two components: that broadcasters cover “controversial matters of public interest” and that they provide contrasting views on their platforms. Unlike the equal-time rule, the fairness doctrine did not require equal time to guests. It simply required that both points of view were mentioned.
Like any rule, the fairness doctrine faced its challenges. In 1969, after a lengthy battle the U.S. Supreme Court upheld the FCC’s right to enforce the rule. Republicans didn’t like the 1980s application of the rule, as they believed it unfairly targeted conservative talk radio which was on the rise. As a result, President Ronald Reagan ended the fairness doctrine in 1987 with the stroke of a pen. The rule was wiped from the Federal register in 2011 after President Barack Obama stated he had no intention of wading into that fight nearly 25 years after its demise.
A lesser-known rule called the “Zapple doctrine” went a step further than the equal-time rule, and it might have better resolved the current social media conundrum.
Unlike the equal-time rule, the Zapple doctrine expanded the equal-time mandate to spokespersons of candidates and also supporters of candidates. This would include a modern-day Trump supporter wishing to express their support without fear of being banned.
Due to its broader application, the doctrine would have been the closest thing that conservative social media users could get to nirvana. However, the FCC abandoned the enforcement of Zapple in 2014 just as social media was on the rise and before extreme biases were a daily occurrence.
Congressional investigation into antitrust behavior could be the most successful mechanism to slam the brakes on tech’s bad behaviors.
With both the fairness doctrine and the Zapple doctrine now defunct, and the equal-time rule impossible to enforce on social media, it appears Congress may now know what to do.
The congressional investigation into antitrust behavior, bias against conservatives, and the pilfering of consumer data could be the most successful mechanism yet to slam the brakes on tech’s bad behaviors.
The House Judiciary’s inquiry is only one of many to come. President Donald Trump’s Department of Justice is reportedly readying an investigation into Google – a move that will invigorate his base ahead of the 2020 Presidential elections.
One top conservative attorney who is taking on Google believes the investigations into antitrust action and bad practices stands to go further than any application of FCC rules to social media.
“Specifically during political elections, extending the equal-time rule to social media platforms would be an appropriate remedy to ensure the integrity of elections. Beyond that, however, a solution that dictates guaranteed airtime to certain parties is certain to fail by virtue of the inability of big government to get it right, not to mention the inevitable politicization of the regulatory process itself,” said Harmeet Dhillon, a civil rights attorney and Vice President of the Republican National Lawyers Association.
“We should use existing laws to hold these companies accountable for lying in their advertising to consumers; violating antitrust laws; stealing people’s information; and other unfair business practices which are already subject to existing consumer protection laws,” she said. “We don’t need a big-government content-monitoring agency, provided the government enforces existing laws and allows citizens to do the same.”
“We don’t need a big-government content-monitoring agency, provided the government enforces existing laws and allows citizens to do the same.” – Harmeet Dhillon
Enforcing existing laws and breaking up big tech would indeed create more fairness and competition, which would in turn lead companies to compete for users’ business for a change. If not treated fairly on one platform, an activist could shutter his or her account and move elsewhere – something that is not entirely feasible in today’s limited marketplace.
While investigations ramp up, conservatives may have to suffer through unfair biases until such antitrust resolution occurs. With trillions of dollars on the line and a Presidential election just 16 months away, the situation may get worse before it gets better.
One can bet that big tech won’t go quietly into the dark night. In fact, they just might do everything in their power to ensure that President Trump doesn’t win a second term.
Jennifer Kerns was the communications strategist for the Colorado recalls. She previously worked for the California Republican Party and served as spokeswoman for the Proposition 8 marriage initiative.