IT'S TIME TO "get us on offense and scare the hell out of Google, Facebook, Twitter," declares Phil Kerpen, top dog at the avowedly free market American Commitment. He has concocted a strategy for conservatives, described in a memo obtained by Axios, which calls for government to treat social media platforms not like the newspapers of the 20th century, with unencumbered speech rights, but like the railroads of the 19th century--as "incumbents with market power [who] therefore pose a serious threat" to society.
Meanwhile, the "establishment" is eager to regulate new media, too. Three senators--two Democrats and a Republican-have proposed a bill to extend campaign finance disclosure rules to the internet, constraining who is allowed to buy online advertisements. Alarmed by Russian provocateurs and by the suspiciously improbable electoral triumph of Donald Trump, they aim to bring the wonders of McCain-Feingold to broader information markets.
History speaks loudly on the merits of these ideas. Twentieth century regulatory policies dedicated to furthering "the public interest" in media--the Equal Time Rule, the Fairness Doctrine, the licensing of broadcast radio and television--triggered perverse outcomes that squeezed competition, pre-empted innovation, and quashed free speech. They scorched the very values they were ostensibly designed to advance.
Ajit Pai, the Trump-appointed chair of the Federal Communications Commission (FCC), seems to understand this. He moved decisively this fall to roll back "Title II" regulation of internet service providers (ISPs), the "nuclear option" deployed in 2015 to impose "network neutrality" on the web. But Pai isn't the only player on the field, and his good work could go up in the smoke of a 4:30 a.m. tweet issued from the Mar-a-Lago bowling alley.
A DISTURBING LEGACY
IN 1974, THE U.S. Supreme Court found the Miami Herald to be free of any obligation to extend Pat Tornillo, a candidate for the state legislature who had been blasted in a Herald editorial, a chance to respond. A 1913 Florida statute had created such a "right of reply," but the Court struck it down as unconstitutional, 9-0.
The newspaper was a powerful platform that dominated the supply of news throughout its region: "The public... is said to be in peril because the 'marketplace of ideas' is today a monopoly controlled by the owners of the market," noted the Supreme Court. But mandated access, it added, would cast a chilling effect, leading editors and publishers "to avoid controversy." The impact would be counterproductive, and free speech would suffer, as "political and electoral coverage would be blunted or reduced."
Regulation, in short, was itself a threat, compromising the independence guaranteed by the U.S. Constitution. The Florida law was overturned.
The Court got that one right. The rule protecting editorial discretion has served the country well. Newspapers have been biased, sensationalistic, and often wrong--but at least they have not been regulated to death. With broadcasting, by contrast, the Court has often been confused and the First Amendment shaved. Controversial ideas have been silenced and upstart technologies banned.
Almost immediately after the Radio Act of 1927 established "public interest" radio licensing, unorthodox views became a target. Two lively stations, WCFL (owned by the Chicago Federation of Labor) and WEVD (owned by the Socialist Party) came up for license renewals in 1929. The Federal Radio Commission (superseded by the FCC in 1934) warned against "propaganda stations"--a regulatory term of art for organizations espousing opinions. Sanctions, including limits on the amount of electricity they could use and forcibly reduced hours of operation, were inflicted.
To avoid fiscal ruin, the left-wing "mouthpieces" (another term of art) backed off. Mainstream programming was adopted, and the fiery voices were extinguished. WCFL was eventually sold, I kid you not, to Amway.
Conservatives got their own skinning. For instance, right-wing broadcasters opposed to President John F. Kennedy's nuclear test ban treaty were surreptitiously monitored by operatives from the Democratic National Committee. Small stations featuring outspoken administration critics were systematically targeted for "fairness" complaints. They received requests by the hundreds demanding free time for replies. The goal was not to get on the radio but to tax political dissent, getting opposing views off.
The cynical campaign worked, and then some. Broadcast...