thesis media regulation

• Essays and Scholarship

Social Media Regulation in the Public Interest: Some Lessons from History

Examining past abuses of the ‘public interest’ standard to argue against expanding antitrust authority, the tech giants, monopoly power, and public discourse.

An essay series addressing the tech giants' power to shape public discourse

For two decades after the courts struck down the Communications Decency Act in 1997, direct government regulation of the internet was a political third rail. That era of digital salutary neglect arguably contributed to American dominance in consumer software applications; if software has eaten the world, to extend Marc Andreessen’s metaphor, the all-you-can-eat buffet line started in the United States. 1 1. Marc Andreessen, Why Software Is Eating the World , Wall St. J. (Aug. 20, 2011) https://www.wsj.com/articles/SB10001424053111903480904576512250915629460 [ https://perma.cc/AD24-3WVH ]. As a result, U.S. tech hubs have been the destination for global capital and skilled immigrants, mitigating the economic effects of the Great Stagnation as the manufacturing industry moved overseas.

Recently, however, there has been growing support for internet regulation. Remarkably for an era of heightened political polarization, representatives of both major U.S. parties have called for antitrust action against big tech companies. These critics argue that the companies’ market dominance leads to excessive political influence and poor outcomes for consumers. 2 2. See, e.g. , Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age(2018). This paper does not address these antitrust issues.

Instead we examine another plausible regulatory response to market domination: public oversight of private companies according to a public interest standard. The prospect of a new era of public interest oversight should not be dismissed out of hand. Multiple politicians from both parties have called for the federal government to take an active role in fighting various online social ills, including hate speech, gun-related content, political bias, and sexual trafficking. In theory, public interest regulation could address these ills while also dealing with market power. In practice, public interest regulation could very well fail to accomplish those goals while creating negative unintended consequences.

The first section of this essay explores the growing interest in cross-applying the public interest standard from broadcasting to the internet. The second section recounts the history of the standard and the problems it created for free speech. The third section considers the implications of our historical analysis for public and private policymaking going forward.

A Revived Public Interest Standard

Proposals to regulate social media and the internet are solutions in search of justifications. Simply put, there are few digital-era regulatory precedents for government oversight of the internet. Instead, advocates have turned to the history of broadcast and telecommunications regulation to find examples of regulatory mechanisms that might be applied to the internet. Contemporary techno-progressives are borrowing ideas from progressive broadcast reformers of the early to mid-20th century. 3 3. See, e.g. , Victor Pickard , Media and Politics in the Age of Trump , Origins, Nov. 2016, http://origins.osu.edu/article/media-and-politics-age-trump [ https://perma.cc/8LWQ-2XYZ ]; April Glaser, Bring Back the Golden Age of Broadcast Regulation , Slate (June 6, 2019), https://slate.com/technology/2019/06/youtube-facebook-hate-speech-regulation-how.html [ https://perma.cc/WS49-RQBN ]; Philip M. Napoli, What Would Facebook Regulation Look Like? Start with the FCC , Wired (Oct. 4, 2019), https://www.wired.com/story/what-would-facebook-regulation-look-like-start-with-the-fcc/ [ https://perma.cc/F9CD-DT62 ] [hereinafter What Would Facebook Regulation Look Like? ].

Most of these proposals are ultimately rooted in the idea that the internet should be regulated according to the “public interest,” an echo of wording in the Radio Act of 1927, which established what was then an unprecedented level of federal government control over a communications medium. Of course, in the broadest possible sense any government action that involves the taking of property or the restriction of liberty needs to be justified by an appeal to the public interest or commonweal. That is not the sense of the term as it is used by communications scholars, for whom the “public interest” is a way of describing a body of administrative law that evolved from the regulation of broadcasting and telecommunications. To put it in simple terms, the public interest standard is used to describe a diverse set of media and telecommunications policies—including cross-media ownership bans, station licensing, and the Fairness Doctrine—that would be constitutionally prohibited were they applied to other domains like print media.

But today there is an ongoing effort by media scholars and policy analysts to expand the reach of the public interest standard to include the internet. For example, a committee from the Stigler Center for the Study of the Economy and the State at the University of Chicago recently called for conditioning Section 230 of the Communications Decency Act of 1996—which is widely acknowledged as the crucial deregulatory legislation that helped bring about a wave of consumer internet innovation—on “compliance with various public interest requirements drawn from media and telecommunications policy traditions.” 4 4. Stigler Comm. on Digital Platforms, Final Report 191 (2019), https://research.chicagobooth.edu/-/media/research/stigler/pdfs/digital-platforms---committee-report---stigler-center.pdf [ https://perma.cc/VN7R-ZJ7Y ]. Prominent media scholar Philip M. Napoli recently wrote a book that advocated reviving the public interest criterion to guide new regulations of the internet. 5 5. Philip M. Napoli, Social Media and the Public Interest: Media Regulation in the Disinformation Age (2019) [hereinafter Social Media and the Public Interest]. Other proposals may not use the precise phrase “public interest,” but their contents are similar in form to old public interest-based concepts, as with Senator Josh Hawley’s (R-MO) proposal to enforce “political neutrality” on internet platforms. 6 6. See Ending Support for Internet Censorship Act, S. 1914, 116th Cong. (2019).

These proposals are not necessarily futile ab initio . The U.S. Supreme Court validated government regulation of the content of broadcasting because of the scarcity of the airwaves, a decision that has not been overruled. 7 7. Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969). (Although the scarcity rationale would not seem especially apt for the internet and social media, which are unconstrained by the electromagnetic spectrum.) However, Napoli identifies several other ways to justify internet regulation that have previously been accepted by the courts: Social media might be seen as a public resource, pervasive or ancillary to other regulated technologies. 8 8. Id. at 148–49. S ee also Jamie Susskind, Future Politics: Living Together in a World Transformed by Tech 43 (2018) (contending that future technology will be more pervasive). Each of these arguments could be used to justify media regulation in the public interest. 9 9. Social Media and the Public Interest, supra note 5, at 150. The public interest standard may not ultimately be embodied in new legislation regulating the internet, but it has returned to the policy agenda at a time when regulations seem likely, so it is a contender worthy of public attention. 10 10. See, e.g. , Mark MacCarthy, To Regulate Digital Platforms, Focus on Specific Business Sectors , Brookings Institution (Oct. 22, 2019), https://www.brookings.edu/blog/techtank/2019/10/22/to-regulate-digital-platforms-focus-on-specific-business-sectors [ https://perma.cc/3XLS-V5Z5 ].

We should bear in mind that public interest arguments reflect a tradition that sees the First Amendment as empowering the government to pursue public ends through public means rather than as defending individual rights against government abridgment. The idea for the former—“First Amendment collectivism,” as Napoli calls it—can be traced back to Alexander Meiklejohn’s famous remark that “what is essential is not that everyone shall speak, but that everything worth saying shall be said.” 11 11. Social Media and the Public Interest supra note 5, at 192 (quoting Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 25(1972)) . See also id . at 191–93 (elaborating on the idea of First Amendment collectivism). In this view, government should regulate speech to produce a “rich public debate,” promoting favored speech rather than simply being satisfied with whatever follows from everyone being allowed to speak as an individual right. 12 12. Owen M. Fiss, Free Speech and Social Structure , 17 Iowa L. Rev. 1405, 1405–25 (1986). The public end in view is called “democracy” or perhaps the “public interest” (the two concepts are often used interchangeably). 13 13. Social Media and the Public Interest supra note 5, at 192. Earlier First Amendment scholars of a collectivist bent recognized that these ends might require “limits on autonomy” and urged care in suppressing speech that did not enrich public debate. 14 14. Owen M. Fiss, Why the State? , 100 Harv. L. Rev. 781, 786 (1987) (“The concern is not with the frustration of would-be speakers, but with the quality of public discourse. Autonomy may be protected, but only when it enriches public debate. It might well have to be sacrificed when, for example, the speech of some drowns out the voices of others or systematically distorts the public agenda.”). In contrast, Philip Napoli emphasizes the benefits of speech regulation rather than its risks. 15 15. Napoli has noted that the state remains a threat to freedom of expression, but he does not specify there or elsewhere the risks associated with First Amendment collectivism. He focuses instead on the potential benefits of the doctrine for democracy. Social Media and the Public Interest, supra note 5, at 192. Inevitably, the public interest standard gives public officials leverage over political speech. Perhaps that leverage will be used to improve public debate, but traditional liberals are inclined to believe that such authority will more likely serve the narrow interests of elected officials and dominant interests.

Given that would-be regulators are explicitly borrowing public interest concepts from the history of broadcasting, it is worth examining how those precepts actually worked (or not, as the case may be). This essay examines four cases: Bob Shuler’s battle in the early 1930s with the Federal Radio Commission, the Roosevelt administration’s attempt to keep anti-New Deal newspapers out of radio, and two instances of bipartisan abuse of the Fairness Doctrine. These stories illustrate the gulf between the public interest as an abstract ideal and the public interest as it was actually applied by the government. This history should inform our policies going forward.

Four Case Studies

Bob shuler vs. the federal radio commission.

This study of the public interest standard begins a century ago with a surprising individual, the Reverend Robert P. Shuler, a Methodist minister and radio broadcaster from Los Angeles nicknamed “Fightin’” Bob Shuler for his cantankerous preaching. In the 1920s and early 30s, he clashed with the newly commissioned Federal Radio Commission, setting an important legal precedent for regulating the airwaves in the public interest. There are lessons to be learned from the early days of radio regulation—which followed a decade of relative laissez-faire and rapid growth—for those who would apply similar standards to the internet today.

Los Angeles in the 1920s was a boomtown, filled with oil derricks and liquor smugglers. As the oil bubble burst in 1927, Shuler was a key player in exposing a major political scandal involving the Julian Petroleum Corporation. Julian executives defrauded local investors of $100–$200 million (nearly $3 billion in 2019 dollars) with the help of local businessmen and politicians. Grand juries indicted several of those involved, but the slow pace of the prosecutions led the Supreme Court of California to dismiss the charges en masse for failure to provide a speedy trial.

Shuler blamed both the District Attorney of Los Angeles County, Asa Keyes, and Los Angeles City Prosecutor Lloyd Nix for the failure, implying on air that Keyes was in the pocket of the indicted businessmen and that Nix was negligent. Shuler’s broadcast attacks forced Keyes to resign; the disgraced former district attorney would indeed later be convicted of taking a bribe from a Julian executive. Nix, also forced to resign, would eventually extract a measure of revenge on Shuler, but not before the imbroglio peaked with the killing of one of the indicted businessmen by a defrauded investor who carried a printed copy of one of Shuler’s broadcasts in his pocket bearing the title “Julian Thieves in Politics.” Nix claimed during an interview on another radio station that Shuler had as good as pulled the trigger by inciting public outrage over the acquittals in the first place.

Shortly after the Julian scandal resignations, Shuler had created such a political backlash against Los Angeles Mayor George Cryer for his ties to organized crime that Cryer opted not to run for reelection in 1929. The new mayor, John C. Porter, was supported by Shuler, who had picked him for office after seeing him on the grand jury that had indicted District Attorney Keyes for bribery. In addition, eight out of nine Shuler-backed candidates won seats on the city council. 16 16. Charles Edward Orbison, “Fighting Bob” Shuler and KGEF: The Silencing of a Radio Crusader 44, 95 (Aug. 1975) (unpublished M.S. thesis) https://digital.library.unt.edu/ark:/67531/metadc798063/m2/1/high_res_d/1002773405-Orbison.pdf [ https://perma.cc/D6JU-39VR ]; Jules Tygiel, The Great Los Angeles Swindle 280 (Univ. of Cal. Press 1996) (1994). But Shuler had won that influence by making enemies out of almost every major institution in the city, including the Chamber of Commerce, the Bar Association, and multiple judges he had antagonized by accusing them of being soft on organized crime. (Shuler would be convicted of two counts of contempt of court for criticizing a judge.) Shuler may have been the most influential person in the city in 1930, but he was also the most disliked. It is hard to imagine Shuler’s anti-corruption campaigns succeeding without the radio station KGEF. His enemies, perceiving this as well, used a new regulatory tool to make that thought a reality.

During the 1920s, the boom in Los Angeles had been matched only by the rapid expansion of radio broadcasting, expanding from a niche interest early in the decade to being an appliance in a majority of households in California by 1930. 17 17. U.S. Census Bureau, Fifteenth Census of the United States: 1930, Population, Volume VI, Families 171 (1933). Congress passed the Radio Act of 1927, which authorized the new Federal Radio Commission (which would become the Federal Communications Commission in 1934) to impose order on the industry. The Act gave the Federal Radio Commission (FRC) authority to determine station frequency allotment, a decision freighted with consequence given that applicants were expected to have raised the capital necessary for equipment and operations prior to applying for a spot on the spectrum. Hundreds of thousands, even millions of dollars rode on any given licensing decision; regulatory capture was a natural outcome, with applicants pulling strings with commissioners and congressmen for preferential treatment. The system rewarded the well-connected and the well-financed.

Furthermore, the Radio Act of 1927 charged the FRC with the responsibility to regulate the airwaves in the “public interest, convenience, or necessity.” Simultaneously, Section 29 of the Act prohibited censorship or any interference with “the right of free speech by means of radio communications.” 18 18. The Radio Act of 1927, Pub. L. No. 69-632 (1927). As we will see, there was an inherent tension between those two charges, for how could the FRC decide that one radio station licensee’s broadcast speech was more in the “public interest” than another applicant’s speech without it being an act of censorship? Even if the question of censorship were set aside, the very concept of a singular “public interest” was an open invitation to majoritarian suppression of minority voices.

The new FRC immediately ran into trouble untangling the competing claims of applicants for the most desirable portions of the broadcast spectrum (a problem compounded by congressional pressure to divide the number of licenses equally among five geographic zones regardless of actual demand or relative population levels). Based on the legal fiction of spectrum scarcity, the FRC tended to favor well-capitalized station affiliates of the emerging major networks over independent outfits while working to reduce the total number of station licenses, preferring a smaller number of powerful stations over a larger number of local stations. 19 19. As Thomas Hazlett has noted, the preference for artificial scarcity in the number of stations dated back to the mid-1920s when the Radio Conference voted down the move to a wider range of frequencies to prevent competition. And a few years later, one of the FRC’s first rulings was to prevent another attempt at widening the allowable spectrum. Hazlett estimates that doing so limited AM radio to just five percent of the potential broadcasting spectrum. Thomas Hazlett, The Rationality of U.S. Regulation of the Broadcast Spectrum , 33 J.L. & Econ. 133 (1990). See also Bruce M. Owen, Economics and Freedom of Expression: Media Structure and the First Amendment(1975); Tim Wu, The Master Switch: The Rise and Fall of Information Empires 83–84 (2011).

In addition, the FRC rewarded stations that promised to avoid political radicalism and to promote majoritarian values. For example, in 1933 stations WIBO and WPCC in Chicago had their licenses revoked; their spectrum was granted to station WJKS in Gary, Indiana, both for sake of geographical balance and because WJKS’s programming was “well designed to meet the needs of the foreign population,” by which the FRC meant programs “stress[ing] loyalty to the community and the Nation” and “instruct[ing] in citizenship and American ideals and responsibilities.” 20 20. FCC v. Nelson Bros. Bond & Mortg. Co., 289 US 266, 271 (1933). Meanwhile radical political groups with radio stations, such as WCFL (owned by the Chicago Federation of Labor) and WEVD (owned by the Socialist Party of America; the call sign referenced the recently deceased Eugene Victor Debs), struggled with heightened regulatory scrutiny after the FRC labeled them “propaganda” stations serving only a narrow interest and not the general public interest. 21 21. Robert McChesney, Labor and the Marketplace of Ideas: WCFL and the Battle for Labor Broadcasting , 1927-1934 , 134 Journalism Monographs 14, 22–23 (1992). However, in both cases the FRC’s efforts at asserting its authority to regulate radio licensees based on whether their programming was in the “public interest” was at least partially thwarted—albeit not without difficulty—given the ability of each group to rally significant national pressure campaigns on their behalf, such as WEVD convincing New York Evening Post publisher Oswald Villard and educator John Dewey to speak out on the issue. 22 22. Nathan Godfried, Legitimizing the Mass Media Structure: The Socialists and American Broadcasting, 1926-1932 , in Culture, Gender, Race, and U.S. Labor History 123, 123–49 (Ronald Kent, Sara Markham, David Roediger & Herbert Shapiro eds., 1993).

The FRC would find greater success going after radio stations owned by individuals with fewer elite connections. The most famous involved homeopathic practitioner John Brinkley, who used the station KFKB (“Kansas Folks Know Best”) to peddle his patent medicines and surgical “cures” for infertility, which involved implanting goat glands in the testes. The outrageousness of Brinkley’s medical fraud made him an easy target for public interest action; the case continues to attract significant scholarly attention today. When the FRC denied KFKB a license renewal, Brinkley took the case to the Court of Appeals of the District of Columbia complaining that the denial—which all involved agreed was predicated on the content of his programming—violated Section 29 of the Radio Act of 1927, prohibiting censorship. The court ruled that no censorship was involved because the FRC had based its decision on the basis of “past conduct” rather than exercising prior restraint. 23 23. KFKB Broad. Ass’n v. Fed. Radio Comm’n, 47 F.2d 670, 672 (D.C. Cir. 1931).

It was a very narrow definition of censorship, one that applied only to radio and not to newspapers. Indeed, the U.S. Supreme Court would rule just four months later in the landmark case Near v. Minnesota 24 24. Near v. Minnesota, 283 U.S. 697 (1931). that newspapers could not be gagged by state laws even on the basis of their prior content. When Minnesota passed a law targeting a newspaper that had criticized the state government, it was a violation of the First Amendment, but when California passed a “radio slander bill” that was “admittedly aimed at the activities of [the] Rev. ‘Bob’ Shuler,” it was not. 25 25. The Nat’l Ass’n of Broads., Radio Slander Bill Approved , Broads.’ News Bull. 122 (May 16, 1931), https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1931-Q2.pdf [ https://perma.cc/Q3G8-4WZ6 ]. Simply put, under the public interest standard free speech and press protections were significantly weaker for radio broadcasters than for newspaper publishers.

To return to the case of Bob Shuler and KGEF in Los Angeles, Shuler had neither the elite friends of WEVD, the institutional support of WCFL, nor the approved programming of WJKS. And the court to which he would appeal his own case, the D.C. Court of Appeals, had just issued a precedent in regard to Brinkley that would undermine Shuler’s ability to make an effective First Amendment plea. Shuler was in trouble, but that was not immediately obvious when the FRC first announced a special hearing into the license renewal of KGEF in the fall of 1930. After all, at the time KGEF ranked fourth (of 20) in a poll of the most popular stations in Los Angeles and it had a regular listening audience of some 600,000 people. 26 26. Orbison, supra note 16, at 31. Little more than a year previously he had unseated the mayor, toppled the corrupt district attorney, and forced the city prosecutor to resign, moves praised even by many of Shuler’s critics as necessary reforms to the city government. But Shuler’s influence was predominantly built on the radio, not through newspapers. And radio stations needed government licensure through the FRC, a license granted, in part, based on whether past programming had fulfilled a vague notion of the “public interest” or, as the case may be, a very specific vision of the public interest. That was all the leverage that Shuler’s political enemies needed.

Earlier, shortly before the FRC hearing, ex-Mayor George Cryer had tried to punish Shuler via ordinary channels, suing him for defamation after Shuler accused Cryer of abusing the mayor’s office. However, the jury acquitted Shuler; headlines about the failed attempt at retribution must have heaped insult on injury. Cryer had another chance with the FRC hearing; he was one of several dozen former Shuler opponents who testified at the hearing. 27 27. Id. at 36–38. But the most determined of those involved was Lloyd Nix, the former city prosecutor that Shuler had pushed to resign over the Julian scandal.

Technically, Nix was not the instigator of the hearing—that honor went to a local restaurant supplier who averred to be simply a concerned citizen who wanted to stick up for his slandered friends—but Nix volunteered his time to serve as attorney for the complainant. Nix also convinced a distinguished East Coast communications attorney to travel to Los Angeles to serve as co-counsel and even paid his substantial hotel expenses out of pocket. Nix’s efforts were rewarded when the complaint over KGEF’s license renewal resulted in the FRC making two unprecedented decisions about the handling of the hearing. In every prior case, FRC hearings of this type had been held in Washington, D.C., but the FRC held this hearing in Los Angeles, which allowed Nix to call dozens of witnesses to testify in person. Even more surprising was the FRC’s decision to allow the complainants’ attorneys to conduct the proceedings. Typically, the FRC’s examiner would question witnesses and generally act like a prosecutor. But in this hearing, Nix would effectively prosecute Shuler while the FRC examiner acted as judge. 28 28. Id. at 44, 75–80.

Throughout the FRC hearing and later court appeals, Shuler’s attorneys made the mistake of assuming that appeals to the First Amendment would find purchase. But both the hearing examiner and the D.C. Court of Appeals adopted the narrow definition of censorship as limited to prior restraint. According to that logic, since this was a license renewal and not an initial application, it would not be censorship to deny Shuler’s license on the basis of his controversial programming. Much of the hearing consisted of antipathetic witnesses recounting Shuler’s attacks on their character and policy. Neutral observers might have thought that they were watching a trial for defamation or libel, except that the man conducting the proceedings, Nix, had a clear conflict of interest and the burden of proof rested definitively on Shuler, who had to affirmatively prove that his statements advanced the public interest.

This he could not do, so everyone involved was surprised when the FRC examiner, Ellis Yost, held that Shuler should have his license renewed. However, his reason for doing so was revealing. Yost acknowledged that Shuler had been “extremely indiscreet” in his broadcasts by “reflecting upon the character of a citizen, based solely on rumors and unverified reports.” 29 29. The Nat’l Ass’n of Broads., KGEF License Renewal Recommended , Broads.’ News Bull. 85 (Aug. 15, 1931), https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1931-Q3.pdf [ https://perma.cc/2NCT-LB7Y ]. However, Shuler’s broadcasts only accounted for three hours a week compared to the other 20 hours a week the station gave mostly free of charge to groups like the Union Rescue Mission, the Boy Scouts of America, and the Los Angeles Conservatory of Music. 30 30. Id .; Orbison, supra note 16, at 29–30. Yost was fine with censoring Shuler on the basis of his programming content; he simply thought it unfair that these other groups should be punished for Shuler’s excesses.

That might have been that, but Nix and the complainant appealed the examiner’s ruling to the full Federal Radio Commission, which overruled Yost and denied KGEF its license renewal. Shuler then appealed the FRC’s decision to the D.C. Circuit Court of Appeals, which echoed the FRC’s reasoning in its ruling. The FRC and the circuit court believed that Shuler’s offenses were so onerous that allowing them to compose even a small fraction of KGEF’s programming violated the public interest. Specifically, the commission pointed to Shuler’s obstruction of “the administration of justice” (his contempt of court charges), “offend[ing] the religious susceptibilities of thousands” (he criticized the Catholic Church), inspiring “political distrust and civic discord” (toppling the Cryer administration), and “offend[ing] youth and innocence by the free use of words suggestive of sexual immorality” (Shuler once said the word “pimp” on the air). Ultimately, Shuler was condemned because he had used the airwaves as “a theater for the display of individual passions and the collision of personal interests.” 31 31. Trinity Methodist Church v. Fed. Radio Com., 62 F.2d 850, 853 (D.C. Cir. 1932). In other words, Shuler had treated KGEF as an outlet for advancing his own beliefs and had failed to prove to the commission or the court that doing so represented the public interest. As a result, he would be denied access to the airwaves.

Shuler’s hearing was fundamentally political in nature. No matter how crude his conduct, Shuler had used KGEF to intervene in local politics and lost his station as a result. If this had happened in any other medium—print or newspaper—it would have been protected speech. His accusers would have been required to prove their complaints of defamation and claim compensation for a tort in an actual court of law. The managing director of the National Association of Broadcasters—the primary industry association—proposed filing an amicus brief if the Supreme Court decided to hear Shuler’s appeal (which it did not), calling the case “a discrimination against broadcasting in favor of newspapers” and citing Near v. Minnesota . The American Civil Liberties Union did file an amicus brief for KGEF, as it did in the cases of WCFL and WEVD, though it made no difference in the final result. 32 32. Letter from Philip Loucks, Managing Dir., Nat’l Ass’n of Broads., to the officers and directors of the Nat’l Ass’n of Broads., (Jan. 23, 1933) https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1932-Q1.pdf [ https://perma.cc/ZDF8-5MTD ]; The Nat’l Ass’n of Broads., Intervene in Shuler Case , Broads.’ News Bull. 325 (Feb. 11, 1933), https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1932-Q4.pdf [ https://perma.cc/Q3G8-4WZ6 ].

Shuler’s case also serves as a reminder that the conceit of a singular “public interest” is exactly that. Was it in the public interest of the citizens of Los Angeles to have one of the 18 stations in the town owned by a muckraking, albeit reform-minded, broadcaster? Shuler’s popularity with a weekly listening audience of 600,000 suggested a certain kind of vote by radio dial democracy. Lloyd Nix, George Cryer, Asa Keyes, and their friends clearly disagreed. Would the calculus have been different if Shuler had spoken for only two hours a week on the air rather than three, or if he had forced the resignations of only one official instead of half a dozen? No firm answer could have been given to any of these questions since the FRC had no firm guidelines. And, of course, if KGEF had been a newspaper, these questions would never have needed to be asked in the first place. The FRC had been given an impossible mandate: It was the overseer of a system of government-issued radio licenses to be distributed in artificially limited numbers according to the vague-by-design public interest standard and enforced via an opaque and arbitrary process that was supposed to simultaneously avoid censorship while still making decisions based on broadcast content.

In other cases, the FRC would rule that advertisements for contraceptives, betting lines, and mildly provocative innuendo from starlet Mae West were quite obviously not in the public interest. In 1939, the FRC considered formal guidelines prohibiting “favorable references to hard liquor,” “excessive suspense on children’s programs,” and “excessive playing of recorded music to fill air-time”; 33 33. Christopher H. Sterling & John Michael Kittross, Stay Tuned: A History of American Broadcasting 209 (1978). the FRC would not officially adopt the guidelines—though there are many cases at the time of individual stations penalized for violating these preferences 34 34. See, e.g., Frank McNinch, Chairman, FCC, Subsequent Punishment: Commission Attitude on Complaints, Address Before the National Association of Broadcasters (Feb. 15, 1938), in Radio Censorship, 97, 111–12 (H.B. Summers ed. 1939). —but they served as a reminder that the public interest standard was defined by majoritarian cultural values. In the FRC’s view, license-holders should advance Victorian mores and moral self-improvement, not frivolity, consumption, and sexual license. The Commission also kicked off decades of conflict between religious groups for a shrinking share of free sustaining airtime. 35 35. Paul Matzko, The National Council of Churches versus Right-Wing Radio: How the Mainline Muted the New Christian Right, in The Lively Experiment: Religious Toleration in America, from Roger Williams to the Present 267, 267–68 (Chris Beneke & Chris S. Grenda eds., 2015); Paul Matzko, Radio Politics, Origin Myths, and the Creation of New Evangelicalism , 48 Fides et Historia 61 (2016).

The New Dealers vs the Newspapermen

In terms of the politics of the public interest, political right and left alike complained about the FRC enforcing a species of consensus liberalism. For example, the FRC praised stations that promoted “the national preparedness movement” by liaising with the American Legion; meanwhile pacifistic programming was labeled propaganda. And the problem would only worsen as the decade advanced. After the start of President Franklin Delano Roosevelt’s New Deal reforms, a commissioner at the newly renamed Federal Communications Commission (FCC) sent a letter to stations telling them that it was “their patriotic, if not bounden and legal duty” to reject any advertisers “disposed to defy, ignore, or modify the codes established by the N.R.A. [National Recovery Administration].” After all, station licenses were not the actual property of the licensee. Given that they were “using valuable facilities loaned to them temporarily by the government,” they had an obligation to support rather than undermine federal policy. 36 36. Mitchell Dawson, Censorship on the Air , 31 Am. Mercury 257, 267–68 (1934).

That episode of unsubtle, pro-New Deal pressure is also a reminder that the urge to use the public interest standard to advance political interests would be as great a temptation on the national level as on the local. The Roosevelt administration had credited the president’s landslide election victory in 1936 to his effective use of radio. Jim Farley, then the chairman of the Democratic National Committee (DNC), believed that radio was necessary to do “the work of overcoming the false impression created by the tons of written propaganda put out by foes of the New Deal,” an impression that was “washed away as soon as the reassuring voice of the President of the United States started coming through the ether into the family living room.” 37 37. Jim Farley, Behind the Ballots: Personal History of a Politician 319 (1938), quoted in Gwenyth L. Jackaway, Media at War: Radio’s Challenge to the Newspapers, 1924-1939, at 137(1995). As a new mass medium, radio allowed politicians like FDR to bypass preexisting media power structures—in this case print journalism—and appeal directly to voters. It was a presidential “fake news” defense but set in the 1930s.

Despite his dominant election victory in 1936, Roosevelt was worried by the growing number of newspapers buying radio stations (a third of the total by 1939) given that the percent of newspapers declaring support for his candidacy dropped from 41 percent in 1932 to 37 percent in 1936 and down to only 25 percent in 1940. 38 38. Daniel R. Ernst, The Shallow State: The Federal Communications Commission and the New Deal , 4 U. Pa. J.L. & Pub. Aff. 403, 451 (2019). Conservative-owned newspapers were running editorials criticizing New Deal programs and accusing FDR of creeping authoritarianism. FDR’s response did little to persuade his critics otherwise. During the ‘36 election, the administration had gone through back channels to urge the FCC to deny or delay radio station licenses to several newspapers that supported his political opponents. Still frustrated with critical newspaper coverage in 1938, the administration leaked that Roosevelt was contemplating firing the entire slate of FCC commissioners for their inaction. 39 39. Richard W. Steele, Propaganda in an Open Society: The Roosevelt Administration and the Media, 1933-1941, at 177 (1985); Drew Pearson, FDR Disgusted with Radio Board; Plans to Fire All Members , St. Petersburg Times (Nov. 3, 1938), at 4.

Roosevelt did not carry out that threat, but the next year he appointed a new FCC Chairman, ardent New Dealer James “Larry” Fly. In December 1940, frustrated once again by sinking newspaper support for his candidacy, FDR asked Fly if he would “let me know when you propose to have a hearing on newspaper ownership of radio stations.” 40 40. Erik Barnouw, A History of Broadcasting in the United States: The Golden Web, Volume II, 1933 to 1953, at 170 (1968) (quoting from the James L. Fly papers). Fly’s successor as chairman, Paul Porter, would later say, “This was a fetish of [Roosevelt’s] ... and he was constantly putting the blow torch on Larry.” 41 41. Susan L. Brinson, The Red Scare, Politics, and the Federal Communications Commission, 1941–1960, at 45 (2004). The president’s request put Fly in an awkward position. He was committed to the New Deal and loyal to the president, but he was also an ardent civil libertarian who would lose his job several years later partly because he opposed the FBI’s request for warrantless wiretapping authority. Roosevelt also made it clear that if Fly “got in trouble” on the radio ownership issue, the proposal would be disavowed by the administration. And Fly had other priorities as commissioner that he lavished more political capital and attention on, particularly the push for regulation of chain broadcasting. But in March of 1941 Fly did accede to the president’s request and announced FCC hearings into newspaper ownership of radio stations. 42 42. Ernst, supra note 38, at 452.

The hearings were meant to determine whether the “joint association of newspapers and broadcast stations tends ... to prejudice the free and fair presentation of public issues ... cause editorial bias ... or to inject editorial policy or attitude into the public service rendered.” The predetermined answer was, of course, yes to all of the above, but Fly simply did not have the political capital to fight the newspaper industry. Instead, after 17 days of hearings the FCC stopped the proceedings. Even if the hearings did not lead to a formal newspaper ownership ban, at the start of the hearings Fly had placed a temporary ban on the issuance of powerful FM licenses to newspapers, limiting them to the weaker AM frequencies. And when the hearings ended, Fly did not remove the ban, leaving newspaper FM applications in regulatory limbo for the next two and a half years until Fly’s successor officially declared an end to the investigation under congressional pressure. 43 43. Decision and Order on Motion to Vacate Orders No. 79 and 79-A, 8 F.C.C. 589, 589–91 (1941).

All of the parties involved in this fight—Fly, Roosevelt, and the newspapermen—claimed that they were the actual defenders of the public interest and that it was the other parties who were subverting the will of the people. 44 44. Jackaway, supra note 37, at 143. In private, however, they could be more blatant about the pragmatic considerations involved. For example, when the president accused Chairman Fly once again of dawdling on the newspaper ownership question, Fly responded that he needed to orchestrate the hearings so as to avoid the appearance of being motivated by “punitive political considerations towards the press.” 45 45. Ernst, supra note 38, at 452. That was, of course, the actual motivation, but the president had learned a lesson about the importance of keeping up democratic appearances after the embarrassing failure of his Supreme Court packing scheme a few years earlier.

In the case of both Roosevelt’s newspaper ban and Bob Shuler’s KGEF fight a decade earlier, the FRC/FCC offered a new arena for the politically well-connected to circumvent judicial or legislative due process in order to gain political advantage. On two occasions in the late 1930s, pro-New Deal congressmen sponsored bills that would have ordered the FCC to enact the newspaper ownership ban, but the administration lacked the necessary political support for the measure. 46 46. Id . at 451. Pressuring the FCC—an administrative agency headed by a presidential appointee—was a cleaner, simpler way of getting the president what he wanted. Whether or not that was in the public interest, it was certainly in FDR’s own best interests.

The Fairness Doctrine vs the Radio Right

The death of FDR in 1945 and Republican control of Congress after the 1946 midterm elections led to a decade and a half of salutary neglect towards broadcasting on the part of the FCC. Attempts at further public interest-based regulation were generally honored in the breach. Concerns over network domination of radio broadcasting faded as the networks shifted their attention to television. The percentage of radio stations controlled by network affiliates dropped precipitously as most new licenses went to small-scale, independent station owners. It was, in a sense, a return to the radio landscape of the late 1920s and, like then, it entailed a resurgence of political radicalism from both the left and right on the airwaves. Cash-strapped independent station owners were willing to air programs from a new wave of conservative broadcasters. 47 47. Sterling & Kittross, supra note 33, at 293–94. Indeed, by the early 1960s there were a dozen right-wing broadcasters airing on a hundred or more stations nation-wide, forming a kind of ad hoc syndicated network of stations airing conservative shows. 48 48. For a detailed exploration of the counter-Radio Right censorship campaign, seePaul Matzko, The Radio Right (forthcoming 2020). See also Heather Hendershot, What’s Fair on the Air? Cold War Right-Wing Broadcasting and the Public Interest(2011).

Meanwhile, a new generation of public interest advocates—young, idealistic lawyers fueled by New Frontier zeal—had been nominated to the FCC by President John F. Kennedy. Commissioners like Newton Minow, William Henry, and Kenneth Cox believed that broadcasters had forgotten their obligation to educate and uplift the public. Of course, their definition of what counted as educational and uplifting did not include conservative ideas or advocacy, or at least not in the proportion that they were currently being communicated over the airwaves. Furthermore, the Kennedy administration had its own complaints about the constant attacks on its legislative agenda by conservative radio hosts. Surely it was not in the public interest to allow the “Radio Right” to undermine trust in the administration? This alliance between well-intentioned public interest advocates and administration officials using public interest rhetoric to advance narrowly partisan interests would lead to the most successful episode of U.S. government censorship of the past half century. They singled out conservative broadcasters for targeted audits by the Internal Revenue Service and created front organizations that would launder administration talking points and generate complaints about stations for the FCC. Ultimately, they pressured hundreds of radio stations into dropping conservative programming altogether. 49 49. For more on the IRS’s targeted audits of conservative broadcasters, seeJohn A. Andrew III, Power to Destroy: The Political Uses of the IRS from Kennedy to Nixon25–75 (2002). For older work on the targeted use of the FCC’s Fairness Doctrine by former CBS news producer Fred Friendly, seeFred Friendly, The Good Guys, the Bad Guys, and the First Amendment: Free Speech vs. Fairness in Broadcasting (1976). Invoked throughout this paper, Friendly’s papers are housed at Columbia University and he conducted interviews with several of the prime actors in the Democratic National Committee censorship operation.

But the details of the Kennedy administration’s censorship campaign most pertinent to our discussion of the public interest standard revolve around the partisan deployment of a newly enhanced set of regulations known as the Fairness Doctrine. A detailed examination of the evolution of the Fairness Doctrine would require a much longer treatment, but suffice it to say that the rule was rooted in the public interest standard. As already discussed, in the 1920s and 1930s the FRC defined stations that broadcast only one point of view—whether socialist, religious, or conservative—as “propaganda” stations, unlike stations that promoted broadly acceptable politics.

That general suspicion of stations controlled by political advocates had crystallized into the FCC’s Mayflower ruling during Fly’s chairmanship. Station WAAB in Massachusetts was owned by the Yankee Network, a second-tier regional network that frequently aired critiques of the New Deal and Roosevelt administration. 50 50. For an extended description of the Mayflower ruling and the Yankee Network case, seeMatzko, Radio Politics, Origin Myths, and the Creation of New Evangelicalism , supra note 35, at 6. When WAAB was up for license renewal in 1939, the Mayflower Broadcasting Corp., owned by a disgruntled former Yankee employee, filed a competing claim for the license. The FCC threatened to award the license to Mayflower until Yankee promised to drop its offensive editorializing habits. As Fly wrote, “A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to the support of principles he happens to regard most favorably. In brief, the broadcaster cannot be an advocate.” It was awfully convenient, of course, for the Roosevelt administration that the Mayflower ruling punished a station supporting the political opposition, coming as it did in 1941, the same year that the Commission launched its investigation of newspaper ownership of radio. By the end of the decade, however, the FCC realized that the Mayflower decision was having a chilling effect on radical political speech. Radio station owners were avoiding editorializing in general in order to avoid the semblance of advocacy. This was not the outcome that sincere public interest reformers had hoped for, so in 1949 the FCC released a clarification of the Mayflower rule that allowed airing “the licensee’s personal viewpoint” as long as it was “part of the more general presentation of views or comments” on issues of public importance. 51 51. Report on Editorializing by Broadcast Licensees,13 F.C.C. 1246, 1254-55 (1949), quoted in Giraud Chester, Garnet R. Garrison & Edgar Willis, Television and Radio129 (1971).

The Mayflower doctrine would be revised again in 1959 to include an equal time requirement for political candidates, one that would be given the imprimatur of Congress, which was worried about bipartisan balance in television coverage during the upcoming 1960 election. The FCC also added a requirement to notify people when they’d been attacked on the air and the rules were renamed the “Fairness Doctrine.” However, it was not until 1963 that any attempt at enforcing the Fairness Doctrine would be made. That year, in the middle of a fight with conservative broadcasters over the Nuclear Test Ban Treaty, President Kennedy appointed a new FCC chairman, E. William Henry, and told him, “It is important that stations be kept fair.” 52 52. Handwritten note, Interview by E. William Henry with Fred Friendly (undated) (on file with Columbia University, folder 6, box 81, Fred Friendly Papers (“FFP”)). Two months later, Henry would announce a “clarification” of the Fairness Doctrine reiterating that stations were not licensed “exclusively for the private interest” of their owners but to air programs that dealt with “issues of interest to his community, and in doing so ... be fair.” 53 53. Statement of E. William Henry, Chairman, FCC (July 16, 1963) (on file with University of Wisconsin, Madison, folder “Editorializing, 1963-1965,” box 21, E. William Henry Papers).

The clarification signaled the FCC’s intent to take Fairness Doctrine complaints from listeners into account when renewing station licenses. Shortly thereafter, the White House would secretly organize the Citizens Committee for a Nuclear Test Ban to combat criticism of the treaty by demanding response time from stations under the threat of lodging a Fairness Doctrine complaint with the FCC. 54 54. For more on the Citizens Committee for a Nuclear Test Ban, see Erin L. Richardson, SANE and the Limited Test Ban Treaty of 1963: Mobilizing Public Opinion to Shape U.S. Foreign Policy (Nov. 2009) (unpublished M.A. thesis) ( https://etd.ohiolink.edu/!etd.send_file?accession=ohiou1257556741&disposition=inline [ https://perma.cc/AH7Q-WJY6 ]); Ronald Terchek, The Making of the Test Ban Treaty 84–85 (1970). And when a small station in Cullman, Alabama, offered a response time slot to the Committee—but only if they paid for the airtime—the FCC that fall issued an update known as the Cullman Doctrine that obligated stations to provide response time gratis if the respondent said they could not pay. 55 55. Responsibility Under the Fairness Doctrine, 40 F.C.C. 576 (1970) (response dated Sept. 18, 1963). In the 1960s, the enhanced Fairness Doctrine rules were without exception enforced against stations airing conservative programs. After JFK’s assassination and during the election of 1964, the Democratic National Committee used Fairness Doctrine complaints to intimidate radio stations into dropping broadcasters who supported Republican presidential nominee Barry Goldwater and to secure free airtime for the Lyndon Johnson campaign, some 1,700 free broadcasts in the final weeks before the election. 56 56. For an excerpt from DNC Chairman John Bailey’s report on the Fairness Doctrine / monitoring of the Radio Right, see Memorandum from Wayne Phillips to Fred Friendly (Oct. 17, 1974) (on file with Columbia University, folder 6, box 81, FFP). See also Confidential Memorandum from Martin Firestone to Wayne Phillips (Oct. 28, 1964) (on file with Columbia University, folder 6, box 81, FFP).

Nixon and CBS News

Although the Kennedy administration was the first to use the Fairness Doctrine to advance their political interests, the temptation to do so was a bipartisan impulse. Not long after the election of 1968, members of the Nixon administration began scheming about how they might use the Fairness Doctrine to intimidate television networks that portrayed administration policies in a negative light, particularly in their coverage of the Vietnam War.

For example, during the intense antiwar demonstrations of October 1969, President Richard M. Nixon told his staff to take “specific action relating to what could be considered unfair network news coverage,” saying it not once but 21 times. This scattershot response to displeasing coverage was not very effective, so Jeb Magruder, one of Nixon’s operatives working for the Committee to Re-Elect the President (CRP, later mockingly nicknamed “CREEP” by the media), argued for replacing Nixon‘s “shot-gun” method with a more targeted, “rifle”-like approach. Magruder’s inspiration was the Kennedy administration, which, in his words, “had no qualms about using the power available to them to achieve their objectives.” 57 57. Memorandum from J.S. Magruder on The Shot-gun versus the Rifle to H.R. Haldeman (Oct. 17, 1969) (on file with Columbia University, folder 2, box 81, FFP). Magruder’s plan involved, among other measures, monitoring broadcasts in order to “make official complaints” via the FCC, which was then chaired by recent Nixon appointee and former Republican National Committee chairman Dean Burch. 58 58. Id.

The first test for Magruder’s plan came when recently retired NBC News anchor Chet Huntley said of Nixon in an interview, “The shallowness of the man overwhelms me; the fact that he is President frightens me.” 59 59. Thomas Thompson, Chet Heads for the Hills , Life, July 17, 1970, at 33, 36. Nixon was furious at the slight, so Magruder promptly released a “plan on press objectivity,” the ultimate goal of which was to “tear down the institution” of the press and “generate a public re-examination of the role of the media in American life.” 60 60. Memorandum from Jeb S. Magruder containing a tentative plan on press objectivity to Mr. Haldeman & Mr. Klein (July 17, 1970) (on file with Columbia University, folder 2, box 81, FFP) (hereinafter Magruder Tentative Press Plan); Memorandum from L. Higby to Mr. Magruder (July 16, 1970) (on file with Columbia University, folder 2, box 81, FFP). The networks, worried about the effect on public relations, forced Huntley to apologize, but the Nixon administration had bigger plans. They wanted to “plant a column” with a sympathetic outlet calling for “a blue-ribbon media ‘watchdog’ committee to report to the public on cases of biased reporting.” 61 61. Magruder Tentative Press Plan, supra note 60. They would then have a Republican senator write a public letter to the FCC proposing that newsmen should be licensed since “the airwaves belong to the public,” which “should be protected from the misuse of these airwaves by individual newsmen.” 62 62. Memorandum from L. Higby to Mr. Magruder (July 16, 1970) (on file with Columbia University, folder 2, box 81, FFP). The Nixon administration wanted to fully weaponize the public interest standard to spare the president public embarrassment and to undermine opposition to its legislative agenda.

However, Magruder and the rest of the CRP team found that the mere threat of regulatory scrutiny was often enough to compel compliance. After the Huntley controversy and various regulatory tweaks by Dean Burch, CRP operative Chuck Colson found that the network television heads were “accommodating, cordial and almost apologetic” in private meetings. 63 63. Memorandum from Charles Colson to H.R. Haldeman (Sept. 25, 1970) (on file with Columbia University, folder 2, box 81, FFP). CBS told Colson that every administration had asked for more favorable coverage since “every Administration had felt the same way”; Nixon’s operatives had actually “been slower in coming to them to complain” than their predecessors had been. 64 64. Id. By September 1970, the Nixon administration had bullied the networks into a submissive state that lasted another year or so. Broadcast television resistance had mostly been neutered; it would be print media—with its stronger legal protections and lack of a public interest standard—that would take the lead in challenging the administration over the next several years.

After the 1972 election, the White House renewed its efforts to control network coverage, which had taken a negative turn in keeping with the crumbling situation in Vietnam. Clay T. Whitehead, the head of the White House Office of Telecommunications Policy, proposed changes to the Communications Act of 1934. When station licenses were up for renewal, according to a speech Whitehead delivered that winter, their owners would be required to demonstrate that they were “substantially attuned to the needs and interests of the community” and that they had offered a reasonable opportunity for the “presentation of conflicting views on controversial issues.” 65 65. Dr. Whitehead and the First Amendment , Wash. Post (Dec. 22, 1972), at A22. Local station managers and network officials would be held responsible for “all programming, including programs that come from the network.” Those that did not correct imbalances or bias in network political coverage would be “held fully accountable by the broadcaster’s community at license renewal time.” 66 66. Restrained Freedom , Time, Jan. 1, 1973, at 63. This policy would have had some bite. If a station could not demonstrate meaningful service to all elements of the community, the license would be denied renewal by the FCC. That stick was proffered along with two carrots: The license period for stations would be extended, and challenges to license renewal would become harder to sustain. 67 67. Dr. Whitehead and the First Amendment, supra note 65.

Earlier in American history, it had been the political left that had raised concerns about a private monopoly over the airwaves. Now, from the political right, Whitehead traced the problems in media bias to “excessive concentration of control over broadcasting,” presumably by the networks. 68 68. Address by Clay T. Whitehead, Director, Office of Telecommunications Policy, Executive Office of the President, Before Sigma Delta Chi, Indianapolis Chapter (Dec. 18, 1972), in William E. Porter, Assault on the Media: The Nixon Years300, 301 (1976). Such control, he argued, was as bad when it came from network headquarters in New York City as it was when exercised by the government from Washington, D.C. Whitehead had taken up the anti-monopoly cause and ended up with something like the “right to hear” interpretation of the First Amendment by the Supreme Court in Red Lion Broadcasting Co. v. FCC in 1969; rather than thinking of the First Amendment as a negative restriction against constraints on speech, the Court viewed the First Amendment as a positive means to promote underrepresented speech, even if doing so meant legal favor for certain kinds of speech over others. This would be done by preventing monopoly control over information; from the perspective of the Nixon administration, that meant breaking apart a perceived monopoly of outlets and journalists whose politics favored the political left. Nixon’s team wanted to force broadcasters to present points of view favorable to the administration: “The Fairness Doctrine became the Holy Writ; and the ‘King Richard version’ called for local stations to enforce it on pain of being put out of business if they did not.” 69 69. Joseph C. Spear, Presidents and the Press: The Nixon Legacy 151 (1984). See also Porter, supra note 68, at172–74 (1976).

This time the news media outlets were not as quick to capitulate as before. A Washington Post editorial captured the spirit of the harsh response that met Whitehead’s speech: “[T]he administration is endangering not simply the independence of network news organizations, but the fundamental liberties of the citizens of this country as well.” 70 70. Dr. Whitehead and the First Amendment , supra note 65. NBC president Julian Goodman joined in, writing, “Some federal government officials are waging a continuing campaign aimed at intimidating and discrediting the news media, and the public has expressed very little concern.” 71 71. CQ Press, Historic Documents of 1973, at 56(1974). And Robert G. Fichtenberg, chairman of the freedom of information committee of the American Society of Newspaper Editors, called the proposed licensing standards “one of the most ominous attacks yet on the people’s right to a free flow of information and views.” 72 72. Id. at 57. The Nixon administration’s 1972 proposals were not included in subsequent legislation nor were they publicly mentioned again by officials.

By the end of that year, Nixon and CRP were too busy trying to handle the fallout from the Watergate scandal to lean on the networks over coverage of the Vietnam War. Still, their early efforts to control the networks in 1969 and 1970 had, as Charles Colson privately reported to H.R. Haldeman, intimidated the network heads: “They are very much afraid of us and are trying hard to prove they are ‘good guys.’” 73 73. Memorandum from Charles Colson to H.R. Haldeman, supra note 63; Thomas W. Hazlett, The Political Spectrum 152 (2017). The effects of the Whitehead plan are more difficult to assess. Even though it was later withdrawn, the proposals may have affected the judgment and actions of network news executives in much the same fashion as the earlier campaign clearly had. Nonetheless, the Nixon administration’s use of the Fairness Doctrine was, in its own way, nearly as successful as the Kennedy administration’s efforts a decade earlier, though Kennedy targeted small, independent radio stations while Nixon went after the major television networks. Both were designed to control criticism of the government without falling afoul of the Constitution’s ban on direct censorship.

The final rotten fruit of Nixon’s use of FCC regulations to cripple his political opponents was a ban on newspapers owning more than a single television station in any major media market. Katharine Graham, the owner of the Washington Post—which had played a vital role in exposing the Watergate scandal—believed that the rule was meant to intimidate her into silence by threatening her ownership of two television stations in Florida. She would later write that “of all the threats to the company during Watergate ... [this was] the most effective.” 74 74. Brooks Boliek & Katy Bachman, Nixon’s Newspaper War , Politico(Aug. 8, 2014), https://www.politico.com/story/2014/08/another-nixon-reminder-media-ownership-rules-109825 [ https://perma.cc/5H9A-UWFP ]. Graham sold off one of the stations in order to avoid the threat of heightened regulatory scrutiny, but Nixon’s tactic might have worked on a less stalwart or less wealthy person, potentially stifling the coverage that ultimately led to his downfall.

Nixon’s cross-media ownership rule fulfilled the promise of Roosevelt’s cross-ownership proposal 30 years earlier. Roosevelt wanted to punish conservative newspaper owners by barring them from owning too many radio stations. Nixon wanted to punish liberal newspaper owners by barring them from owning too many television stations. Both Roosevelt and Nixon used the public interest regulatory apparatus in order to censor speech they found inconvenient. Bear in mind that the text of the cross-media ownership rule said nothing about regulating broadcast content. It is an important reminder that even regulations that purport to be “content-neutral” can be used to mask censorial purpose.

There is a line of jurisprudential reasoning running through all four episodes, but there are other fundamental themes that connect them as well. Each case reveals the insoluble tension between an obligation to regulate broadcasting in the public interest while simultaneously avoiding censorship. Each case reveals just how foolhardy the pursuit of a singular public interest is, as if there exists some Platonic ideal of a unitary, homogenous public for technocratic regulators to identify and altruistically serve. Each case is a reminder of just how easily public interest mechanisms can be used to advance partisan or private interests; indeed, it is when well-intentioned public interest reformers have had the most influence that the risk of regulatory capture by baser political operatives has been most acute. It is not at all obvious that the public interest standard in broadcasting has served the public interest.

When the Fairness Doctrine was finally taken to the Supreme Court in Red Lion Broadcasting Co. v. FCC (1969)—a case secretly manufactured by an operative working for the Democratic National Committee—the Court upheld the Fairness Doctrine on public interest grounds, citing Shuler’s case, Trinity Methodist Church, South v. FRC, and the Mayflower decision among the precedents. 75 75. DNC operative Wayne Phillips provided significant financial aid and technical advice to Fred Cook, the freelance journalist who sued the Red Lion station owner. See, e.g. , Memorandum from Fred Cook to Wayne Phillips (Jan. 25, 1965) (on file with Syracuse University Libraries, folder 7, box 1, Fred Cook Papers (“FCP”)); Memorandum on Dr. Billy James Hargis, His Christian Crusade, His Christian Echoes National Ministry, and Connections with other Groups (Oct. 10, 1962) on file with Syracuse University, folder 13, box 1, FCP); Letter from Wayne Phillips (Oct. 24, 1974) (on file with Columbia University, folder 3, box 82, FCP). It is interesting, however, that the Court was much more concerned about the possibility of censorship than the courts had been in those prior cases, when they had simply stipulated that the FRC/FCC could not be guilty of censorship so long as they avoided prior restraint and adhered to the public interest standard. By contrast, Justice Byron White wrote that evidence of “self-censorship” by stations avoiding Fairness Doctrine complaints would “indeed be a serious matter.” White’s concerns over censorship were assuaged when the FCC’s attorneys told the Court that “the fairness doctrine in the past has had no such overall effect” and that self-censorship was “at best speculative.” 76 76. Red Lion Broad. Co. v. FCC , 395 U.S. 367, 393 (1969). If the Court had known that the explicit purpose of the enhanced Fairness Doctrine rules was to encourage stations to self-censor and to drop conservative programming for the benefit of the Kennedy and Johnson administrations, they might not have been so blasé, but that was information the Court was not privy to.

As noted earlier, the Red Lion decision remains an active precedent. 77 77. Thomas W. Hazlett, Sarah Oh & Drew Clark, The Overly Active Corpse of Red Lion,9 Nw. J. Tech. & Intell. Prop. 51, 51–52 (2010). The Fairness Doctrine was overturned via the political process, not through the courts. Which means that if reformers can successfully assert that the internet falls under the public interest standard, Red Lion could be used to defend expansive internet speech regulations. So far proponents have been unable to make the public interest standard stick. The last attempt to apply the standards to internet content providers was the Communications Decency Act of 1996, which the Supreme Court struck down in Reno v. ACLU in 1997. 78 78. 521 U.S. 844 (1997). The Court explicitly rejected Red Lion because “the special factors recognized in some of the Court’s cases as justifying regulation of the broadcast media”—namely, the scarcity rationale—were "not present in cyberspace.” Without the scarcity principle, broadcast public interest standards could not be applied to internet regulation. That seemed final at the time, but when the courts close a door, sometimes they leave open a window.

As noted earlier, media scholar Philip Napoli argues that there is an alternative to the scarcity rationale that would justify the extension of the public interest standard to the internet. Napoli believes that the broadcast spectrum, like the air or the water, is a public resource "owned by the people.” As such, it is “public property subject to complete regulation by the federal government.” 79 79. What Would Facebook Regulation Look Like? , supra note 3; Gerald Torres, Who Owns the Sky? , 19 Pace Envtl. L. Rev. 227, 247 (2001). And so Napoli proposes that aggregated internet user data be defined as a public resource, which would provide “a grounding for the imposition of content-related public interest obligations in a manner similar to the way that the public resource character of the broadcast spectrum justifies a range of content-related public interest obligations.” 80 80. Philip Napoli, User Data as Public Resource (June 2019) (working paper) (manuscript available at https://perma.cc/Q7QF-M6XL ). Napoli’s novel public resource approach has yet to be tested in court, but it serves as a reminder that the jury is still out on whether public interest standards could be applied to the internet.

The Carter and Reagan administrations abandoned the doctrine as part of their general efforts to deregulate the economy. Yet the interpretation of the public interest as fairness in speech might have been revived in later administrations and, under Red Lion , might have passed constitutional muster. But for that to happen, the doctrine had to offer a net benefit to a political interest. The Kennedy and Nixon episodes discussed earlier suggested that neither of the major political parties could expect net benefits from a renewed broadcasting standard. Of course, broadcasters had paid the costs of the old doctrine and had little reason to expect a different outcome under a new version. Political calculation, not the courts, brought the Fairness Doctrine to an end.

Policy Implications

To revive the public interest standard and apply it to the internet, policymakers first need to deal with the basic flaw of those rules, namely the way in which they can be manipulated to advance private or partisan interests at a cost to freedom of speech. It is not obvious that they have fully grappled with that flaw. In June 2019, Senator Josh Hawley introduced the Ending Support for Internet Censorship Act. 81 81. Ending Support for Internet Censorship Act, supra note 6. Operating from the mistaken belief that Section 230 of the Communications Decency Act of 1996 requires that tech companies provide “a forum free of political censorship” in order to enjoy an exemption from publisher liability, Hawley proposed giving the Federal Trade Commission (FTC) certification authority over content moderation by large internet platforms. 82 82. Press Release, Senator Josh Hawley, Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies (June 19, 2019), https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-section-230-immunity-big-tech-companies [ https://perma.cc/TE9T-T54Z ]. Under Hawley’s plan, every two years tech companies of a certain size would have to prove to the satisfaction of at least four of the five members of the FTC that their content moderation had been politically neutral. The bill further specifies that “information content providers” (websites) should “submit complaints or evidence that they have been subject to politically biased content moderation” and testify to that effect at certification hearings. If platforms fail to prove their neutrality, they would lose Section 230 liability protection and face a wave of lawsuits. Most tech companies would be much less valuable without Section 230 protections, giving government regulators tasked with serving the public interest immense leverage over internet companies, not unlike how prior administrations exercised leverage over broadcast networks through the FCC and its licensing process.

How might that leverage work? The bill states that a certification of neutrality must be approved by “at least 1 more than a majority of the [five] Commissioners.” 83 83. Ending Support for Internet Censorship Act, supra note 6, at §§ 2-3(b)(iv)(i). To be precise, at least one member of both parties would have to approve the certification. This requirement might seem to serve the cause of free speech. After all, if a tech company sought to suppress online speech by a Democrat or Republican, the FTC could deny it a certification of neutrality through the vote of at least one Democratic or Republican member. Unlike the Fairness Doctrine, both parties could be assured that the neutrality standard would not be used against their partisans because leaders of both parties would have an effective veto over actions by the companies.

However, this supermajority rule—although an effort to mitigate majoritarian suppression of online speech—is paired with a problematic affirmative obligation. Online platforms are by default unprotected by Section 230 until the FTC certifies them as neutral and thus protected. This would make the entire review process particularly susceptible to filibustering. Given that four of five votes would be needed to certify, the two minority party commissioners, voting in unison, could block certification. It is not hard to imagine the political possibilities that could be reaped from this system. Any two commissioners could exercise enormous political and financial leverage over online platforms.

Consider the following scenario. In May 2019, the Trump administration invited conservatives who felt that they had been censored by social media platforms to submit complaints to a White House website. Three months later those complaints were then used to justify drafting an executive order titled “Protecting Americans from Online Censorship,” which proposed doing via executive power what Hawley had proposed doing via legislation, that is, removing Section 230 protection from biased internet platforms. 84 84. Brian Fung, White House Proposal Would Have FCC and FTC Police Alleged Social Media Censorship , CNN (Aug. 10, 2019), https://www.cnn.com/2019/08/09/tech/white-house-social-media-executive-order-fcc-ftc/index.html [ https://perma.cc/9NN2-LKP8 ]; Makena Kelly, White House Launches Tool to Report Censorship on Facebook, YouTube, Instagram, and Twitter , The Verge (May 15, 2019), https://www.theverge.com/2019/5/15/18626785/white-house-trump-censorsip-tool-twitter-instagram-facebook-conservative-bias-social-media [ https://perma.cc/QWN5-BFB5 ]. The executive order was never issued, but if, in some alternate universe, Hawley’s bill had been enacted earlier that summer, the president would then have had a powerful tool for advancing his partisan interests under the guise of advancing the public interest. He could have encouraged his ardent supporters to submit a wave of complaints to the FTC. If just two of the three Republican commissioners could be suborned, the administration would have been able to deny certification to any online platform, using neutrality as a pretext for dampening criticism of Trump during a crucial period in his presidency. That did not happen, of course, but it is not hard to imagine how the FTC’s neutrality authority could be abused for partisan gain.

But the question is not just whether the companies might suppress speech under partisan or ideological pressure from the FTC. Under Hawley’s bill the companies would be fundamentally dependent on an agency of the federal government to operate (assuming that the protections against liability afforded by Section 230 are essential to the firms). These private companies are, at present, not covered by the First Amendment. Partisans could demand sub silentio that content moderators suppress disfavored speech in return for a neutrality certification. Hence, the leverage the agency would have over the company might well translate into censorship with no recourse to the courts. Furthermore, non-mainstream political speech might find it difficult to secure enthusiastic defenders from representatives of either party. Neutrality violations that hurt these radical speakers might very well be compatible with certification. Indeed, private content moderators, left to guess whether they should suppress speakers disliked by both parties, might do so in order to safely obtain a certificate of neutrality rather than out of any particular partisan affiliation.

The historical episodes we have discussed demonstrate the problem of mainstream apathy towards the suppression of radical speech. Bob Shuler, although a Republican, had alienated both the Republican and Democratic parties on the local level, leaving him with few political allies to speak for him when the FRC revoked his radio station license. Socialist radio station owners fought similar pressures from both Republican and Democratic FRC commissioners in the 1930s. Right-wing broadcasters in the 1960s, targeted by the Kennedy administration and the DNC with the Fairness Doctrine, quickly found that Richard Nixon had no interest in helping radical conservatives who had attacked his China policy.

Hawley’s Ending Support for Internet Censorship Act is likely a stillborn effort to regulate content online. And perhaps other proposals will avoid these free speech issues, but history suggests otherwise. If the government is empowered to advance the public interest online, it will necessarily affect the moderation decisions of private companies. Given our current polarized politics, a handful of newly empowered public officials are likely to view Facebook similarly to how Richard Nixon saw CBS News: as an opportunity to extract political rents.

That comparison is more relevant than you might think. Both CBS News (in the past) and Facebook (in the present) engage in content discrimination; there are no constitutional grounds to protest their actions. While elected officials have a natural interest in controlling what is said about them, they cannot effectively punish their online critics. Regulations that do not impose content discrimination, either explicitly or implicitly, fall outside our analysis, but we wonder whether such regulations are likely. Given the history of partisan abuse of the public interest standard in broadcasting, the burden of proof should rest with those advocating for a public interest standard for the internet to show that their rules would not impose new restrictions on free speech.

We believe that the implications of this history reach beyond public policy. Social media companies have responded to criticism by moderating content on their platforms, but they have also legitimized speech suppression through quasi-judicial institutions. 85 85. Social Media and the Public Interest, supra note 5, at165. For example, Facebook is about to launch an independent oversight board to hear user appeals to decisions made by its content moderators. 86 86. See Brent Harris, Establishing Structure and Governance for an Independent Oversight Board , Facebook Newsroom (Sept. 17, 2019), https://newsroom.fb.com/news/2019/09/oversight-board-structure [ https://perma.cc/P36C-CZS7 ]. Given that they are private institutions, both Facebook’s moderation policy and the board’s judgments would not be obligated to observe First Amendment protections for speech. 87 87. John Samples, Why the Government Should Not Regulate Content Moderation by Social Media , Cato Inst. (Apr. 9, 2019), https://www.cato.org/publications/policy-analysis/why-government-should-not-regulate-content-moderation-social-media [ https://perma.cc/79J2-UEUN ]. Facebook’s CEO has stated that his company considers free speech a “paramount value.” 88 88. Mark Zuckerberg, Remarks at Georgetown University: Standing for Voice and Free Expression (Oct. 17, 2019), https://www.facebook.com/notes/mark-zuckerberg/standing-for-voice-and-free-expression/10157267502546634 [ https://perma.cc/KA3A-AE9T ]. However, social media companies retain the power to police their platforms.

Such authority, though fully justified, opens up significant risks to free speech. Elected and unelected government officials have an interest in what is taken down or left up on social media. They might gain leverage over the platforms through some sort of licensing scheme as proposed by Senator Hawley. Even absent that degree of control, the possibility of government intervention places pressure on Silicon Valley; in order to avoid direct government regulation, online platforms might embrace industry-wide self-regulation standards that suppress political or radical speech. As we have seen, if a government agency has the power to regulate social media in the public interest, such leverage over the platforms is all the more likely to be effective.

How then should we respond to new efforts to regulate social media?  History cannot tell us with precision what the correct path forward is, but the history recounted here does suggest that novel regulations imposed on new communication technologies tend to spawn free speech challenges. Given the risk of regulatory capture of a new internet regulatory agency by political incumbents who could use their power to suppress dissident speech, we propose contesting any such regulations through the courts on First Amendment grounds. Internet searches and platform curation, like the editorial judgment of a newspaper, deserve constitutional protection from government encroachment. 89 89. Miami Herald v. Tornillo recognized that the First Amendment protects editorial judgement. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). See also Eugene Volokh & Donald Falk, First Amendment Protection for Search Engine Search Results (Apr. 20, 2012), https://ssrn.com/abstract=2055364 [ https://perma.cc/7XCZ-CH74 ]. In their white paper commissioned by Google, Volokh and Falk argue that search engine results “are all, at their core, editorial judgements about what users are likely to find interesting and valuable. And all these exercises of editorial judgement are fully protected by the First Amendment.” Id. at 4–5. First Amendment concerns would also preclude the internet equivalent of platform licensing. We may even need explicit constitutional protections favoring private regulation of technology and opposing government censorship of the internet. 

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© 2020, John Samples and Paul Matzko. 

Cite as:  John Samples & Paul Matzko, Social Media Regulation in the Public Interest: Some Lessons from History , 20-09 Knight First Amend. Inst. (May 4, 2020), https://knightcolumbia.org/content/social-media-regulation-in-the-public-interest-some-lessons-from-history [ https://perma.cc/8FWM-X9RN ].

1 Marc Andreessen, Why Software Is Eating the World , Wall St. J. (Aug. 20, 2011) https://www.wsj.com/articles/SB10001424053111903480904576512250915629460 [ https://perma.cc/AD24-3WVH ].

2 See, e.g. , Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age (2018).

3 See, e.g. , Victor Pickard , Media and Politics in the Age of Trump , Origins, Nov. 2016, http://origins.osu.edu/article/media-and-politics-age-trump [ https://perma.cc/8LWQ-2XYZ ]; April Glaser, Bring Back the Golden Age of Broadcast Regulation , Slate (June 6, 2019), https://slate.com/technology/2019/06/youtube-facebook-hate-speech-regulation-how.html [ https://perma.cc/WS49-RQBN ]; Philip M. Napoli, What Would Facebook Regulation Look Like? Start with the FCC , Wired (Oct. 4, 2019), https://www.wired.com/story/what-would-facebook-regulation-look-like-start-with-the-fcc/ [ https://perma.cc/F9CD-DT62 ] [hereinafter What Would Facebook Regulation Look Like? ].

4 Stigler Comm. on Digital Platforms, Final Report 191 (2019), https://research.chicagobooth.edu/-/media/research/stigler/pdfs/digital-platforms---committee-report---stigler-center.pdf [ https://perma.cc/VN7R-ZJ7Y ].

5 Philip M. Napoli, Social Media and the Public Interest: Media Regulation in the Disinformation Age (2019) [hereinafter Social Media and the Public Interest].

6 See Ending Support for Internet Censorship Act, S. 1914, 116th Cong. (2019).

7 Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).

8 Id. at 148–49. S ee also Jamie Susskind, Future Politics: Living Together in a World Transformed by Tech 43 (2018) (contending that future technology will be more pervasive).

9 Social Media and the Public Interest, supra note 5, at 150.

10 See, e.g. , Mark MacCarthy, To Regulate Digital Platforms, Focus on Specific Business Sectors , Brookings Institution (Oct. 22, 2019), https://www.brookings.edu/blog/techtank/2019/10/22/to-regulate-digital-platforms-focus-on-specific-business-sectors [ https://perma.cc/3XLS-V5Z5 ].

11 Social Media and the Public Interest supra note 5, at 192 (quoting Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 25 (1972)) . See also id . at 191–93 (elaborating on the idea of First Amendment collectivism).

12 Owen M. Fiss, Free Speech and Social Structure , 17 Iowa L. Rev. 1405, 1405–25 (1986).

13 Social Media and the Public Interest supra note 5, at 192.

14 Owen M. Fiss, Why the State? , 100 Harv. L. Rev. 781, 786 (1987) (“The concern is not with the frustration of would-be speakers, but with the quality of public discourse. Autonomy may be protected, but only when it enriches public debate. It might well have to be sacrificed when, for example, the speech of some drowns out the voices of others or systematically distorts the public agenda.”).

15 Napoli has noted that the state remains a threat to freedom of expression, but he does not specify there or elsewhere the risks associated with First Amendment collectivism. He focuses instead on the potential benefits of the doctrine for democracy. Social Media and the Public Interest, supra note 5, at 192.

16 Charles Edward Orbison, “Fighting Bob” Shuler and KGEF: The Silencing of a Radio Crusader 44, 95 (Aug. 1975) (unpublished M.S. thesis) https://digital.library.unt.edu/ark:/67531/metadc798063/m2/1/high_res_d/1002773405-Orbison.pdf [ https://perma.cc/D6JU-39VR ]; Jules Tygiel, The Great Los Angeles Swindle 280 (Univ. of Cal. Press 1996) (1994).

17 U.S. Census Bureau, Fifteenth Census of the United States: 1930, Population, Volume VI, Families 171 (1933).

18 The Radio Act of 1927, Pub. L. No. 69-632 (1927).

19 As Thomas Hazlett has noted, the preference for artificial scarcity in the number of stations dated back to the mid-1920s when the Radio Conference voted down the move to a wider range of frequencies to prevent competition. And a few years later, one of the FRC’s first rulings was to prevent another attempt at widening the allowable spectrum. Hazlett estimates that doing so limited AM radio to just five percent of the potential broadcasting spectrum. Thomas Hazlett, The Rationality of U.S. Regulation of the Broadcast Spectrum , 33 J.L. & Econ. 133 (1990). See also Bruce M. Owen, Economics and Freedom of Expression: Media Structure and the First Amendment (1975); Tim Wu, The Master Switch: The Rise and Fall of Information Empires 83–84 (2011).

20 FCC v. Nelson Bros. Bond & Mortg. Co., 289 US 266, 271 (1933).

21 Robert McChesney, Labor and the Marketplace of Ideas: WCFL and the Battle for Labor Broadcasting , 1927-1934 , 134 Journalism Monographs 14, 22–23 (1992).

22 Nathan Godfried, Legitimizing the Mass Media Structure: The Socialists and American Broadcasting, 1926-1932 , in Culture, Gender, Race, and U.S. Labor History 123, 123–49 (Ronald Kent, Sara Markham, David Roediger & Herbert Shapiro eds., 1993).

23 KFKB Broad. Ass’n v. Fed. Radio Comm’n, 47 F.2d 670, 672 (D.C. Cir. 1931).

24 Near v. Minnesota, 283 U.S. 697 (1931).

25 The Nat’l Ass’n of Broads., Radio Slander Bill Approved , Broads.’ News Bull. 122 (May 16, 1931), https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1931-Q2.pdf [ https://perma.cc/Q3G8-4WZ6 ].

26 Orbison, supra note 16, at 31.

27 Id. at 36–38.

28 Id. at 44, 75–80.

29 The Nat’l Ass’n of Broads., KGEF License Renewal Recommended , Broads.’ News Bull. 85 (Aug. 15, 1931), https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1931-Q3.pdf [ https://perma.cc/2NCT-LB7Y ].

30 Id .; Orbison, supra note 16, at 29–30.

31 Trinity Methodist Church v. Fed. Radio Com., 62 F.2d 850, 853 (D.C. Cir. 1932).

32 Letter from Philip Loucks, Managing Dir., Nat’l Ass’n of Broads., to the officers and directors of the Nat’l Ass’n of Broads., (Jan. 23, 1933) https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1932-Q1.pdf [ https://perma.cc/ZDF8-5MTD ]; The Nat’l Ass’n of Broads., Intervene in Shuler Case , Broads.’ News Bull. 325 (Feb. 11, 1933), https://www.americanradiohistory.com/Archive-NAB-Publications/NAB-Broadcaster-News/NAB-Broadcaster's-News-1932-Q4.pdf [ https://perma.cc/Q3G8-4WZ6 ].

33 Christopher H. Sterling & John Michael Kittross, Stay Tuned: A History of American Broadcasting 209 (1978).

34 See, e.g., Frank McNinch, Chairman, FCC, Subsequent Punishment: Commission Attitude on Complaints, Address Before the National Association of Broadcasters (Feb. 15, 1938), in Radio Censorship, 97, 111–12 (H.B. Summers ed. 1939).

35 Paul Matzko, The National Council of Churches versus Right-Wing Radio: How the Mainline Muted the New Christian Right, in The Lively Experiment: Religious Toleration in America, from Roger Williams to the Present 267, 267–68 (Chris Beneke & Chris S. Grenda eds., 2015); Paul Matzko, Radio Politics, Origin Myths, and the Creation of New Evangelicalism , 48 Fides et Historia 61 (2016).

36 Mitchell Dawson, Censorship on the Air , 31 Am. Mercury 257, 267–68 (1934).

37 Jim Farley, Behind the Ballots: Personal History of a Politician 319 (1938), quoted in Gwenyth L. Jackaway, Media at War: Radio’s Challenge to the Newspapers, 1924-1939, at 137 (1995).

38 Daniel R. Ernst, The Shallow State: The Federal Communications Commission and the New Deal , 4 U. Pa. J.L. & Pub. Aff. 403, 451 (2019).

39 Richard W. Steele, Propaganda in an Open Society: The Roosevelt Administration and the Media, 1933-1941, at 177 (1985); Drew Pearson, FDR Disgusted with Radio Board; Plans to Fire All Members , St. Petersburg Times (Nov. 3, 1938), at 4.

40 Erik Barnouw, A History of Broadcasting in the United States: The Golden Web, Volume II, 1933 to 1953, at 170 (1968) (quoting from the James L. Fly papers).

41 Susan L. Brinson, The Red Scare, Politics, and the Federal Communications Commission, 1941–1960, at 45 (2004).

42 Ernst, supra note 38, at 452.

43 Decision and Order on Motion to Vacate Orders No. 79 and 79-A, 8 F.C.C. 589, 589–91 (1941).

44 Jackaway, supra note 37, at 143.

45 Ernst, supra note 38, at 452.

46 Id . at 451.

47 Sterling & Kittross, supra note 33, at 293–94.

48 For a detailed exploration of the counter-Radio Right censorship campaign, see Paul Matzko, The Radio Right (forthcoming 2020). See also Heather Hendershot, What’s Fair on the Air? Cold War Right-Wing Broadcasting and the Public Interest (2011).

49 For more on the IRS’s targeted audits of conservative broadcasters, see John A. Andrew III, Power to Destroy: The Political Uses of the IRS from Kennedy to Nixon 25–75 (2002). For older work on the targeted use of the FCC’s Fairness Doctrine by former CBS news producer Fred Friendly, see Fred Friendly, The Good Guys, the Bad Guys, and the First Amendment: Free Speech vs. Fairness in Broadcasting (1976). Invoked throughout this paper, Friendly’s papers are housed at Columbia University and he conducted interviews with several of the prime actors in the Democratic National Committee censorship operation.

50 For an extended description of the Mayflower ruling and the Yankee Network case, see Matzko, Radio Politics, Origin Myths, and the Creation of New Evangelicalism , supra note 35, at 6.

51 Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1254-55 (1949), quoted in Giraud Chester, Garnet R. Garrison & Edgar Willis, Television and Radio 129 (1971).

52 Handwritten note, Interview by E. William Henry with Fred Friendly (undated) (on file with Columbia University, folder 6, box 81, Fred Friendly Papers (“FFP”)).

53 Statement of E. William Henry, Chairman, FCC (July 16, 1963) (on file with University of Wisconsin, Madison, folder “Editorializing, 1963-1965,” box 21, E. William Henry Papers).

54 For more on the Citizens Committee for a Nuclear Test Ban, see Erin L. Richardson, SANE and the Limited Test Ban Treaty of 1963: Mobilizing Public Opinion to Shape U.S. Foreign Policy (Nov. 2009) (unpublished M.A. thesis) ( https://etd.ohiolink.edu/!etd.send_file?accession=ohiou1257556741&disposition=inline [ https://perma.cc/AH7Q-WJY6 ]); Ronald Terchek, The Making of the Test Ban Treaty 84–85 (1970).

55 Responsibility Under the Fairness Doctrine, 40 F.C.C. 576 (1970) (response dated Sept. 18, 1963).

56 For an excerpt from DNC Chairman John Bailey’s report on the Fairness Doctrine / monitoring of the Radio Right, see Memorandum from Wayne Phillips to Fred Friendly (Oct. 17, 1974) (on file with Columbia University, folder 6, box 81, FFP). See also Confidential Memorandum from Martin Firestone to Wayne Phillips (Oct. 28, 1964) (on file with Columbia University, folder 6, box 81, FFP).

57 Memorandum from J.S. Magruder on The Shot-gun versus the Rifle to H.R. Haldeman (Oct. 17, 1969) (on file with Columbia University, folder 2, box 81, FFP).

59 Thomas Thompson, Chet Heads for the Hills , Life, July 17, 1970, at 33, 36.

60 Memorandum from Jeb S. Magruder containing a tentative plan on press objectivity to Mr. Haldeman & Mr. Klein (July 17, 1970) (on file with Columbia University, folder 2, box 81, FFP) (hereinafter Magruder Tentative Press Plan); Memorandum from L. Higby to Mr. Magruder (July 16, 1970) (on file with Columbia University, folder 2, box 81, FFP).

61 Magruder Tentative Press Plan, supra note 60.

62 Memorandum from L. Higby to Mr. Magruder (July 16, 1970) (on file with Columbia University, folder 2, box 81, FFP).

63 Memorandum from Charles Colson to H.R. Haldeman (Sept. 25, 1970) (on file with Columbia University, folder 2, box 81, FFP).

65 Dr. Whitehead and the First Amendment , Wash. Post (Dec. 22, 1972), at A22.

66 Restrained Freedom , Time, Jan. 1, 1973, at 63.

67 Dr. Whitehead and the First Amendment, supra note 65.

68 Address by Clay T. Whitehead, Director, Office of Telecommunications Policy, Executive Office of the President, Before Sigma Delta Chi, Indianapolis Chapter (Dec. 18, 1972), in William E. Porter, Assault on the Media: The Nixon Years 300, 301 (1976).

69 Joseph C. Spear, Presidents and the Press: The Nixon Legacy 151 (1984). See also Porter, supra note 68, at 172–74 (1976).

70 Dr. Whitehead and the First Amendment , supra note 65.

71 CQ Press, Historic Documents of 1973, at 56 (1974).

72 Id. at 57.

73 Memorandum from Charles Colson to H.R. Haldeman, supra note 63; Thomas W. Hazlett, The Political Spectrum 152 (2017).

74 Brooks Boliek & Katy Bachman, Nixon’s Newspaper War , Politico (Aug. 8, 2014), https://www.politico.com/story/2014/08/another-nixon-reminder-media-ownership-rules-109825 [ https://perma.cc/5H9A-UWFP ].

75 DNC operative Wayne Phillips provided significant financial aid and technical advice to Fred Cook, the freelance journalist who sued the Red Lion station owner. See, e.g. , Memorandum from Fred Cook to Wayne Phillips (Jan. 25, 1965) (on file with Syracuse University Libraries, folder 7, box 1, Fred Cook Papers (“FCP”)); Memorandum on Dr. Billy James Hargis, His Christian Crusade, His Christian Echoes National Ministry, and Connections with other Groups (Oct. 10, 1962) on file with Syracuse University, folder 13, box 1, FCP); Letter from Wayne Phillips (Oct. 24, 1974) (on file with Columbia University, folder 3, box 82, FCP).

76 Red Lion Broad. Co. v. FCC , 395 U.S. 367, 393 (1969).

77 Thomas W. Hazlett, Sarah Oh & Drew Clark, The Overly Active Corpse of Red Lion, 9 Nw. J. Tech. & Intell. Prop. 51, 51–52 (2010).

78 521 U.S. 844 (1997).

79 What Would Facebook Regulation Look Like? , supra note 3; Gerald Torres, Who Owns the Sky? , 19 Pace Envtl. L. Rev. 227, 247 (2001).

80 Philip Napoli, User Data as Public Resource (June 2019) (working paper) (manuscript available at https://perma.cc/Q7QF-M6XL ).

81 Ending Support for Internet Censorship Act, supra note 6.

82 Press Release, Senator Josh Hawley, Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies (June 19, 2019), https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-section-230-immunity-big-tech-companies [ https://perma.cc/TE9T-T54Z ].

83 Ending Support for Internet Censorship Act, supra note 6, at §§ 2-3(b)(iv)(i).

84 Brian Fung, White House Proposal Would Have FCC and FTC Police Alleged Social Media Censorship , CNN (Aug. 10, 2019), https://www.cnn.com/2019/08/09/tech/white-house-social-media-executive-order-fcc-ftc/index.html [ https://perma.cc/9NN2-LKP8 ]; Makena Kelly, White House Launches Tool to Report Censorship on Facebook, YouTube, Instagram, and Twitter , The Verge (May 15, 2019), https://www.theverge.com/2019/5/15/18626785/white-house-trump-censorsip-tool-twitter-instagram-facebook-conservative-bias-social-media [ https://perma.cc/QWN5-BFB5 ].

85 Social Media and the Public Interest, supra note 5, at 165.

86 See Brent Harris, Establishing Structure and Governance for an Independent Oversight Board , Facebook Newsroom (Sept. 17, 2019), https://newsroom.fb.com/news/2019/09/oversight-board-structure [ https://perma.cc/P36C-CZS7 ].

87 John Samples, Why the Government Should Not Regulate Content Moderation by Social Media , Cato Inst. (Apr. 9, 2019), https://www.cato.org/publications/policy-analysis/why-government-should-not-regulate-content-moderation-social-media [ https://perma.cc/79J2-UEUN ].

88 Mark Zuckerberg, Remarks at Georgetown University: Standing for Voice and Free Expression (Oct. 17, 2019), https://www.facebook.com/notes/mark-zuckerberg/standing-for-voice-and-free-expression/10157267502546634 [ https://perma.cc/KA3A-AE9T ].

89 Miami Herald v. Tornillo recognized that the First Amendment protects editorial judgement. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). See also Eugene Volokh & Donald Falk, First Amendment Protection for Search Engine Search Results (Apr. 20, 2012), https://ssrn.com/abstract=2055364 [ https://perma.cc/7XCZ-CH74 ]. In their white paper commissioned by Google, Volokh and Falk argue that search engine results “are all, at their core, editorial judgements about what users are likely to find interesting and valuable. And all these exercises of editorial judgement are fully protected by the First Amendment.” Id. at 4–5.

John Samples is a Vice President at the Cato Institute.

Paul Matzko is Assistant Editor for Tech and Innovation at Libertarianism. 

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A Law & Economics Approach to Social-Media Regulation

The thesis of this essay is that policymakers must consider what the nature of social media companies as multisided platforms means for regulation. The balance struck by social media companies acting in response to the incentives they face in the market could be upset by regulation that favors the interests of some users over others. Promoting the use of technological and practical means to avoid perceived harms by users themselves would preserve the benefits of social media to society without the difficult tradeoffs of regulation. Part I will introduce the economics of multisided platforms like social media, and how this affects the incentives of these platforms. Social-media platforms, acting within the market process, are best usually best positioned to balance the interests of their users, but there could be occasions where the market process fails due to negative externalities. Part II will consider these situations where there are negative externalities due to social media and introduce the least-cost avoider principle. Usually, social-media users are the least-cost avoiders of harms, but sometimes social media are better placed to monitor and control harms. This involves a balance, as the threat of collateral censorship or otherwise reducing opportunities to speak and receive speech could result from social media regulation. Part III will then apply the insights from Part I and II to the areas of privacy, children’s online safety, and speech regulation.

I. Introduction

Policymakers at both the state and federal levels have been actively engaged in recent years with proposals to regulate social media, whether the subject is privacy, children’s online safety, or concerns about censorship, misinformation, and hate speech. [1] While there may not be consensus about precisely why social media is bad, there is broad agreement that the major online platforms are to blame for at least some harms to society. It is also generally recognized, though often not emphasized, that social media brings great value to its users. In other words, there are costs and benefits, and policymakers should be cautious when introducing new laws that would upset the balance that social-media companies must strike in order to serve their users well.

This essay will propose a general approach, informed by the law & economics tradition, to assess when and how social media should be regulated. Part I will introduce the economics of multisided platforms, and how they affects social-media platforms’ incentives. The platforms themselves, acting within the market process, are best usually best-positioned to balance the interests of their users, but there could be occasions where the market process fails due to negative externalities. Part II will consider such externalities and introduce the least-cost avoider principle. Usually, social-media users are the least-cost avoiders of harms, but platforms themselves are sometimes better placed to monitor and control harms. This requires a balance, as social-media regulation raises the threat of collateral censorship or otherwise reducing opportunities to speak and receive speech. Part III will apply the insights from Part I and II to the areas of privacy, children’s online safety, and speech regulation.

The thesis of this essay is that policymakers must consider social-media companies’ status as multisided platforms means for regulation. The balance struck by social-media companies acting in response to the market incentives they face could be upset by regulation that favors the interests of some users over others. Promoting the use of technological and practical means to avoid perceived harms would allow users to preserve the benefits of social media without the difficult tradeoffs of regulation.

II. The Economics of Social-Media Platforms

Mutually beneficial trade is a fundamental bedrock of the market process. Entrepreneurs—including those that act through formal economic institutions like business corporations—seek to discover the best ways to serve consumers. Various types of entities help connect those who wish to buy products or services to those who are trying to sell them. Physical marketplaces are common around the world: those places set up to facilitate interactions between buyers and sellers. If those marketplaces fail to serve the interests of those who use them, others will likely arise.

Social-media companies are a virtual example of what economists call multi-sided markets or platforms. [2] Such platforms derive their name from the face that they serve at least two different types of customers and facilitate their interaction. Multi-sided platforms have “indirect network effects,” described by one economist as a situation where “participants on one side value being able to interact with participants on the other side… lead[ing] to interdependent demand.” [3] In some situations, a platform may determine it can only raise revenue from one side of the platform if demand on the other side of the platform is high. In such cases, the platform may choose to offer one side free access to the platform to boost such demand, which is subsidized by participants on the other side of the platform. [4] This creates a positive feedback loop in which more participants on one side of the platform leads to more participants on the other.

In this sense, social-media companies are much like newspapers or television in that, by solving a transaction cost problem, [5] these platforms bring together potential buyers and sellers by providing content to one side and access to consumers on the other side. Recognizing that their value lies in reaching users, these platforms sell advertising and offer access to content for a lower price, often at the price of zero (or free). In other words, advertisers subsidize the access to content for platform users.

Therefore, most social-media companies are free for users. Revenue is primarily collected from the other side of the platform— i.e ., from advertisers. In effect, social-media companies are attention platforms: They supply content to users, while collecting data for targeted advertisements for businesses who seek access to those users. To be successful, social-media companies must keep enough (and the right type of) users engaged so as to maintain demand for advertising. Social-media companies must curate content that users desire in order to persuade them to spend time on the platform.

But unlike newspapers or television, social-media companies primarily rely on their users to produce content rather than creating their own. Thus, they must also consider how to attract and maintain high-demand content creators, as well as how to match user-generated content to the diverse interests of other users. If they fail to serve the interests of high-demand content creators, those users may leave the platform, thus reducing time spent on the platform by all users, which thereby reduces the value of advertising. Similarly, if they fail to match content to user interests, those users will be less engaged on the platform, reducing its value to advertisers.

Moreover, this means that social-media companies need to balance the interests of advertisers and other users. Advertisers may desire more data to be collected for targeting, but users may desire less data collection. Similarly, advertisers may desire more ads, while users may prefer fewer ads. Advertisers may prefer content that keeps users engaged on the platform, even if it is harmful for society, whether because it is false, hateful, or leads to mental-health issues for minors. On the other hand, brand-conscious advertisers may not want to run ads next to content with which they disagree. Moreover, users may not want to see certain content. Social-media companies need to strike a balance that optimizes their value, recognizing that losing participants on either side would harm the other.

Usually, social-media companies acting within the market process are going to be best-positioned to make decisions on behalf of their users. Thus, they may create community rules that restrict content that would, on net, reduce user engagement. [6] This could include limitations on hate speech and misinformation. On the other hand, if they go too far in restricting content that users consider desirable, that could reduce user engagement and thus value to advertisers. Social-media companies therefore compete on moderation policies, trying to strike the appropriate balance to optimize platform value. A similar principle applies when it comes to privacy policies and protections for minors: social-media companies may choose to compete by providing tools to help users avoid what they perceive as harms, while keeping users on the platform and maintaining value for advertisers.

There may, however, be scenarios where social media produces negative externalities [7] that are harmful to society. A market failure could result, for instance, if platforms have too great of an incentive to allow misinformation or hate speech that keeps users engaged, or to collect too much (or the wrong types of) information for targeted advertising, or to offer up content that is harmful for minors and keeps them hooked to using the platform.

In sum, social-media companies are multi-sided platforms that facilitate interactions between advertisers and users by curating user-generated content that drives attention to their platforms. To optimize the platform’s value, a social-media company must keep users engaged. This will often include privacy policies, content-moderation standards, and special protections for minors. On the other hand, incentives could become misaligned and lead to situations where social-media usage leads to negative externalities due to insufficient protection of privacy, too much hate speech or misinformation, or harms to minors.

III. Negative Social-Media Externalities and the Least-Cost-Avoider Principle

In situations where there are negative externalities from social-media usage, there may be a case for regulation. Any case for regulation must, however, recognize the presence of transaction costs, and consider how platforms and users may respond to changes in those costs. To get regulation right, the burden of avoiding a negative externality should fall on the least-cost avoider.

The Coase Theorem, derived from the work of Nobel-winning economist Ronald Coase [8] and elaborated on in the subsequent literature, [9] helps to explain the issue at hand:

• The problem of externalities is bilateral;
• In the absence of transaction costs, resources will be allocated efficiently, as the parties bargain to solve the externality problem;
• In the presence of transaction costs, the initial allocation of rights does matter; and
• In such cases, the burden of avoiding the externality’s harm should be placed on the least-cost avoider, while taking into consideration the total social costs of the institutional framework.

In one of Coase’s examples, the noise from a confectioner using his machinery is a potential cost to the doctor next door, who consequently can’t use his office to conduct certain testing. Simultaneously, the doctor moving his office next door is a potential cost to the confectioner’s ability to use his equipment. In a world of well-defined property rights and low transaction costs, the initial allocation of a right would not matter, because the parties could bargain to overcome the harm in a beneficial manner— i.e. , the confectioner could pay the doctor for lost income or to set up sound-proof walls, or the doctor could pay the confectioner to reduce the sound of his machines. [10] But since there are transaction costs that prevent this sort of bargain, it is important whether the initial right is allocated to the doctor or the confectioner. To maximize societal welfare, the cost should be placed on the entity that can avoid the harm at the lowest cost. [11]

Here, social-media companies create incredible value for their users, but they also arguably impose negative externalities in the form of privacy harms, misinformation and hate speech, and harms particular to minors. In the absence of transaction costs, the parties could simply bargain away the harms associated with social-media usage. But since there are transaction costs, it matters whether the burden to avoid harms is placed on the users or the social-media companies. If the burden is wrongly placed, it may end up that the societal benefits of social media will be lost.

For instance, imposing liability on social-media companies risks collateral censorship, which occurs when platforms decide that liability risk is too large and opt to over-moderate or not host user-generated content, or to restrict access to such content either by charging higher prices or excluding those who could be harmed (like minors). [12] By wrongly placing the burden to avoid harms on social-media platforms, societal welfare will be reduced.

On the other hand, there may be situations where social-media companies are the least-cost avoiders. For instance, they may be best-placed to monitor and control harms associated with social-media usage when it is difficult or impossible to hold those using their platforms accountable for harms they cause. [13] For instance, if a social-media company allows anonymous or pseudonymous use, with no realistic possibility of tracking down users who cause harms, illegal conduct could go undeterred. In such cases, placing the burden on social-media users could lead to social media imposing uncompensated harms on society.

Thus, it is important to determine whether the social-media companies or their users are the least-cost avoiders. Placing the burden on the wrong party or parties would harm societal welfare, either by reducing the value of social media or by creating more uncompensated negative externalities.

IV. Applying the Lessons of Law & Economics to Social-Media Regulation

Below, I will examine the areas of privacy, children’s online safety, and content moderation, and consider both the social-media companies’ incentives and whether the platforms or their users are the least-cost avoiders.

As discussed above, social-media companies are multi-sided platforms that provide content to attract attention from users, while selling information collected from those users for targeted advertising. This leads to the possibility that social-media companies will collect too much information in order to increase revenue from targeted advertising. In other words, as the argument goes, the interests of the paying side of the platform will outweigh the interests of social-media users, thereby imposing a negative externality on them.

Of course, this assumes that the collection and use of information for targeted advertisements is considered a negative externality by social-media users. While this may be true for some, for others, it may be something they care little about or even value, because targeted advertisements are more relevant to them. Moreover, many consumers appear to prefer free content with advertising to paying a subscription fee. [14]

It does seem likely, however, that negative externalities are more likely to arise when users don’t know what data is being collected or how it is being used. Moreover, it is a clear harm if social-media companies misrepresent what they are collecting and how they are using it. Thus, it is generally unobjectionable—at least, in theory—for the Federal Trade Commission or another enforcer to hold social-media companies accountable for their privacy policies. [15]

On the other hand, privacy regulation that requires specific disclosures or verifiable consent before collecting or using data would increase the cost of targeted advertising, thus reducing its value to advertisers, and thereby further reducing the platform’s incentives of to curate valuable content for users. For instance, in response to the FTC’s consent agreement with YouTube charging that it violated the Children’s Online Privacy Protection Act (COPPA), YouTube required channel owners producing children’s content to designate their channels as such, along with automated processes designed to identify the same. [16] This reduced content creators’ ability to benefit from targeted advertising if their content was directed to children. The result was less content created for children with poorer matching as well:

Consistent with a loss in personalized ad revenue, we find that child-directed content creators produce 13% less content and pivot towards producing non-child-directed content. On the demand side, views of child-directed channels fall by 22%. Consistent with the platform’s degraded capacity to match viewers to content, we find that content creation and content views become more concentrated among top child-directed YouTube channels.

Alternatively, a social-media company could raise the price it charges to users, as it can no longer use advertising revenue to subsidize users’ access. This is, in fact, exactly what has happened in Europe, as Meta now offers an ad-free version of Facebook and Instagram for $14 a month. [18]

In other words, placing the burden on social-media companies to avoid the perceived harms from the collection and use of information for targeted advertising could lead to less free content available to consumers. This is a significant tradeoff, and not one that most social-media consumers appear willing to make voluntarily.

On the other hand, it appears that social-media users could avoid much of the harm from the collection and use of their data by using available tools, including those provided by social-media companies. For instance, most of the major social-media companies offer two-factor authentication, privacy-checkup tools, the ability to browse the service privately, to limit audience, and to download and delete data. [19] Social-media users could also use virtual private networks (VPNs) to protect their data privacy while online. [20] Finally, users could just not post private information or could limit interactions with businesses (through likes or clicks on ads) if they want to reduce the amount of information used for targeted advertising.

B. Children’s Online Safety

Some have argued that social-media companies impose negative externalities on minors by serving them addictive content and/or content that results in mental-health harms. [21] They argue that social-media companies benefit from these harms because they are able to then sell data from minors to advertisers.

While it is true that social-media companies want to attract users through engaging content and interfaces, and that they make money through targeted advertising, it is highly unlikely that they are making much money from minors themselves. Very few social-media users under 18 have considerable disposable income or access to payment-card options that would make them valuable to advertisers. Thus, regulations that raise the costa to social-media companies of serving minors, whether through a regulatory duty of care [22] or through age verification and verifiable parental consent, [23] could lead social-media companies to invest more excluding minors than in creating vibrant and safe online spaces for them.

Federal courts considering age-verification laws have noted there are costs to companies, as well as users, in obtaining this information. In Free Speech Coalition Inc. v. Colmenero , [24] the U.S. District Court in Austin, Texas, considered a law that required age verification before viewing online pornography, and found that the costs of obtaining age verification were high, citing the complaint that stated “several commercial verification services, showing that they cost, at minimum, $40,000.00 per 100,000 verifications.” [25] But just as importantly, the transaction costs in this example also include the subjective costs borne by those who actually go through with verifying their age to access pornography. As the court noted, “the law interferes with the Adult Video Companies’ ability to conduct business, and risks deterring adults from visiting the websites.” [26] Similarly, in NetChoice v. Griffin , [27] the U.S. District Court for Western District of Arkansas found that a challenged law’s age-verification requirements were “costly” and would put social-media companies covered by the law in the position of needing to take drastic action to either implement age verification, restrict access for Arkansans, or face the possibility of civil and criminal enforcement. [28]

On the other hand, social-media companies—responding to demand from minor users and their parents—have also exerted considerable effort to reduce harmful content being introduced to minors. For instance, they have invested in content-moderation policies and their enforcement, including through algorithms, automated tools, and human review, to remove, restrict, or add warnings to content inappropriate for minors. [29] On top of that, social-media companies offer tools to help minors and their parents avoid many of the harms associated with social-media usage. [30] There are also options available at the ISP, router, device, and browser level to protect minors while online. As the court put it in Griffin , “parents may rightly decide to regulate their children’s use of social media—including restricting the amount of time they spend on it, the content they may access, or even those they chat with. And many tools exist to help parents with this.” [31]

In other words, parents and minors working together can use technological and practical means to make marginal decisions about social-media usage at a lower cost than a regulatory environment that would likely lead to social-media companies restricting use by minors altogether. [32]

C. Content Moderation

There have been warring allegations about social-media companies’ incentives when it comes to content moderation. Some claim that salacious misinformation and hate speech drives user engagement, making platforms more profitable for advertisers; others argue that social-media companies engage in too much “censorship” by removing users and speech in a viewpoint-discriminatory way. [33] The U.S. Supreme Court is currently reviewing laws from Florida and Texas that would force social-media companies to carry speech. [34]

Both views fail to take into account that social-media companies are largely just responding to the incentives they face as multi-sided platforms. Social-media companies are solving a Coasean speech problem, wherein some users don’t want to be subject to certain speech from other users. As explained above, social-media companies must balance these interests by setting and enforcing community rules for speech. This may include rules against misinformation and hate speech. On the other hand, social-media companies can’t go too far in restricting high-demand speech, or they will risk losing users. Thus, they must strike a delicate balance.

Laws that restrict the “editorial discretion” of social-media companies may fail the First Amendment, [35] but they also reduce the companies’ ability to give their customers a valuable product in light of user (and advertiser) demand. For instance, the changes in the moderation standards of X (formerly Twitter) in the last year since the purchase by Elon Musk have led to many users and advertisers exiting the platform due to a perceived increase in hate speech and misinformation. [36]

Social-media companies need to be free to moderate as they see fit, free from government interference. Such interference includes not just the forced carriage of speech, but in government efforts to engage in censorship-by-proxy, as has been alleged in Murthy v. Missouri . [37] From the perspective of the First Amendment, government intervention by coercing or significantly encouraging the removal of disfavored speech, even in the name of misinformation, is just as harmful as the forced carriage of speech. [38] But more importantly for our purposes here, such government actions reduce platforms’ value by upsetting the balance that social-media companies strike with respect to their users’ speech interests.

Users can avoid being exposed to unwanted speech by averting their digital eyes from it— i.e ., by refusing to interact with it and thereby training social-media companies’ algorithms to serve speech that they prefer. They can also take their business elsewhere by joining a social-media network with speech-moderation policies more to their liking. Voting with one’s digital feet (and eyes) is a much lower-cost alternative than either mandating the carriage of speech or censorship by government actors.

V. Conclusion

Social-media companies are multisided platforms that must curate compelling content while restricting harms to users in order to optimize their value to the advertisers that pay for access. This doesn’t mean they always get it right. But they are generally best-positioned to make those decisions, subject to the market process. Sometimes, there may be negative externalities that aren’t fully internalized. But as Coase taught us, that is only the beginning of the analysis. If social-media users can avoid harms at lower cost than social-media companies, then regulation should not place the burden on social-media companies. There are tradeoffs in social-media regulation, including the possibility that it will result in a less-valuable social-media experience for users.

[1] See e.g. Mary Clare Jalonick, Congress eyes new rules for tech, social media: What’s under consideration , Associated Press (May 8, 2023), https://www.wvtm13.com/article/whats-under-consideration-congress-eyes-new-rules-for-tech-social-media/43821405# ;  Khara Boender, Jordan Rodell, & Alex Spyropoulos, The State of Affairs: What Happened in Tech Policy During 2023 State Legislative Sessions? , Project Disco (Jul. 25, 2023), https://www.project-disco.org/competition/the-state-of-affairs-statetech-policy-in-2023 (noting laws passed and proposed addressing consumer data privacy, content moderation, and children’s online safety at the state level).

[2] See e.g. Jean-Charles Rochet & Jean Tirole, Platform Competition in Two-Sided Markets , 1 J. Euro. Econ. Ass’n 990 (2003).

[3] David S. Evans, Multisided Platforms in Antitrust Practice , at 3 (Oct. 17, 2023), forthcoming , Michael Noel, Ed., Elgar Encyclopedia on the Economics of Competition and Regulation , available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4606511 .

[4] For instance, many nightclubs hold “Ladies Night” where ladies get in free in order to attract more men who pay for entrance.

[5] Transaction costs are the additional costs borne in the process of buying or selling, separate and apart from the price of the good or service itself — i.e. the costs of all actions involved in an economic transaction. Where transaction costs are present and sufficiently large, they may prevent otherwise beneficial agreements from being concluded.

[6] See David S. Evans, Governing Bad Behavior by Users of Multi-Sided Platforms , 27 Berkeley Tech. L. J. 1201 (2012); Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 HARV. L. REV. 1598 (2018).

[7] An externality is a side effect of an activity that is not reflected in the cost of that activity — basically, what occurs when we do something whose consequences affect other people. A negative externality occurs when a third party does not like the effects of an action.

[8] See R.H. Coase, The Problem of Social Cost, 3 J. L. & Econ. 1 (1960)

[9] See Steven G. Medema, The Coase Theorem at Sixty, 58 J. Econ. Lit. 1045 (2020).

[10] See Coase, supra note 9, at 8-10.

[11] See id. at 34 (“When an economist is comparing alternative social arrangements, the proper procedure is to compare the total social product yielded by these different arrangements.”).

[12] See Felix T. Wu, Collateral Censorship and the Limits of Intermediary Liability , 87 Notre Dame L. Rev. 293, 295-96 (2011); Geoffrey A. Manne, Ben Sperry & Kristian Stout, Who Moderates the Moderators: A Law & Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet , 49 Rutgers Computer & Tech. L J. 26, 39 (2022); Ben Sperry, The Law & Economics of Children’s Online Safety: The First Amendment and Online Intermediary Liability , Truth on the Market (May 12 2023), https://truthonthemarket.com/2023/05/12/the-law-economics-of-childrens-online-safety-the-firstamendment-and-online-intermediary-liability .

[13] See Geoffrey A. Manne, Kristian Stout & Ben Sperry, Twitter v. Taamneh and the Law & Economics of Intermediary Liability , Truth on the Market (Mar. 8, 2023), https://truthonthemarket.com/2023/03/08/twitter-v-taamneh-and-the-law-economics-of-intermediary-liability ; Ben Sperry , Right to Anonymous Speech, Part 2: A Law & Economics Approach , Truth on the Market (Sep. 6, 2023), https://truthonthemarket.com/2023/09/06/right-to-anonymous-speech-part-2-a-law-economics-approach .

[14] See, e.g., Matt Kaplan, What Do U.S. consumers Think About Mobile Advertising? , InMobi (Dec. 15, 2021), https://www.inmobi.com/blog/what-us-consumers-think-about-mobile-advertising (55% of consumers agree or strongly agree that they prefer mobile apps with ads rather than paying to download apps); John Glenday, 65% of US TV viewers will tolerate ads for free content, according to report , The Drum (Apr. 22, 2022), https://www.thedrum.com/news/2022/04/22/65-us-tv-viewers-will-tolerate-ads-free-content-according-report (noting that a report from TiVO found 65% of consumers prefer free TV with ads to paying without ads). Consumers often prefer lower subscription fees with ads to higher subscription fees without ads as well. See e.g . Toni Fitzgerald, Netflix Gets it Right: Study Confirms People Prefer Paying Less With Ads , Forbes (Apr. 25, 2023), https://www.forbes.com/sites/tonifitzgerald/2023/04/25/netflix-gets-it-right-study-confirms-more-people-prefer-paying-less-with-ads/ .

[15] See 15 U.S.C. § 45.

[16] See Garrett A. Johnson, Tesary Lin, James C. Cooper, & Liang Zhong, COPPAcalypse? The YouTube Settlement’s Impact on Kids Content , at 6-7, SSRN (Apr. 26, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4430334 .

[17] Id. at 1.

[18] See Sam Schechner, Meta Plans to Charge $14 a Month for Ad-Free Instagram or Facebook , Wall Street J. (Oct. 3, 2023), https://www.wsj.com/tech/meta-floats-charging-14-a-month-for-ad-free-instagram-or-facebook-5dbaf4d5 .

[19] See Christopher Lin, Tools to Protect Your Privacy on Social Media , NetChoice (Nov. 16, 2023), https://netchoice.org/tools-to-protect-your-privacy-on-social-media/ .

[20] See e.g. Chris Stobing, The Best VPN Services for 2024 , PC Mag (Jan. 4, 2024), https://www.pcmag.com/picks/the-best-vpn-services .

[21] See e.g. Jonatahan Stempel, Diane Bartz & Nate Raymond, Meta’s Instagram linked to depression, anxiety, insomnia in kids – US state’s lawsuit , Reuters (Oct. 25, 2023), https://www.reuters.com/legal/dozens-us-states-sue-meta-platforms-harming-mental-health-young-people-2023-10-24/ (describing complaint from 33 states alleging Meta “knowingly induced young children and teenagers into addictive and compulsive social media use”).

[22] See e.g . California Age-Appropriate Design Code Act, AB 2273 (2022), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2273AADC ; Kids Online Safety Act, S. 1409, 118th Cong. (2023), as amended and posted by the Senate Committee on Commerce, Science, and Transportation on July 27, 2023, available at  https://www.congress.gov/bill/118th-congress/senate-bill/1409 (last accessed Dec. 19, 2023).

[23] See e.g. Arkansas Act 689 of 2023, the “Social Media Safety Act.”

[24] Free Speech Coal. Inc. v. Colmenero , No. 1:23-CV-917-DAE, 2023 U.S. Dist. LEXIS 154065 (W.D. Tex., Aug. 31, 2023), available at https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172751222/gov.uscourts.txwd.1172751222.36.0.pdf .

[25] Id. at 10.

[27] NetChoice LLC. v. Griffin , Case No. 5:23-CV-05105 (W.D. Ark., Aug. 31, 2023), available at https://netchoice.org/wpcontent/uploads/2023/08/GRIFFIN-NETCHOICE-GRANTED.pdf .

[28] See id. at 23.

[29] See id. at 18-19.

[30] See id. at 19-20.

[31] Id. at 15.

[32] For more, see Ben Sperry, A Coasean Analysis of Online Age-Verification and Parental-Consent Regimes , at 23 (ICLE Issue Brief, Nov. 9, 2023), https://laweconcenter.org/wp-content/uploads/2023/11/Issue-Brief-Transaction-Costs-of-Protecting-Children-Under-the-First-Amendment-.pdf .

[33] For an example of a hearing where Congressional Democrats argue the former and Congressional Republicans argue the latter, see Preserving Free Speech and Reining in Big Tech Censorship , Libr. of Cong. (Mar. 28, 2023), https://www.congress.gov/event/118th-congress/house-event/115561 .

[34] See Moody v. NetChoice , No. 22-555 (challenging Florida’s SB 7072); NetChoice v. Paxton , No. 22-277 (challenging Texas’s HB 20).

[35] See e.g . Brief of International Center for Law & Economics as Amicus Curiae in Favor of Petitioners in 22-555 and Respondents in 22-277, Moody v. NetChoice, NetChoice v. Paxton, In the Supreme Court of the United States (Dec. 7, 2023), available at https://www.supremecourt.gov/DocketPDF/22/22-277/292986/20231211144416746_Nos.%2022-277%20and%2022-555_Brief_corrected.pdf . .

[36] See e.g . Ryan Mac & Tiffany Hsu, Twitter’s U.S. Ad Sales Plunge 59% as Woes Continue , New York Times (Jun. 5, 2023), https://www.nytimes.com/2023/06/05/technology/twitter-ad-sales-musk.html (“Six ad agency executives who have worked with Twitter said their clients continued to limit spending on the platform. They cited confusion over Mr. Musk’s changes to the service, inconsistent support from Twitter and concerns about the persistent presence of misleading and toxic content on the platform.”); Kate Conger, Tiffany Hsu & Ryan Mac, Elon Musk’s Twitter Faces Exodus of Advertisers and Executives , New York Times (Nov. 1, 2022), https://www.nytimes.com/2022/11/01/technology/elon-musk-twitter-advertisers.html (“At the same time, advertisers — which provide about 90 percent of Twitter’s revenue — are increasingly grappling with Mr. Musk’s ownership of the platform. The billionaire, who is meeting advertising executives in New York this week, has spooked some advertisers because he has said he would loosen Twitter’s content rules, which could lead to a surge in misinformation and other toxic content.”).

[37] See Murthy v. Missouri , No.23A-243; see also Missouri v. Biden, No. 23-30445, slip op. (5th Cir. Sept. 8, 2023).

[38] See Ben Sperry, Knowledge and Decisions in the Information Age: The Law & Economics of Regulating Misinformation on Social Media Platforms , (ICLE White Paper Sept. 22, 2023), forthcoming 59 Gonz. L. Rev. (2023), available at https://laweconcenter.org/resources/knowledge-and-decisions-in-the-information-age-the-law-economics-of-regulating-misinformation-on-social-media-platforms/ .

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The regulation of media and communications in the borderless networked society.

1. Media and Borders

2. networks, 3. pandemics and environmental crises, 4. regulation, 5. interdisciplinarity as it connects to law and regulation, author contributions, institutional review board statement, informed consent statement, data availability statement, acknowledgments, conflicts of interest.

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Chapdelaine, P.; Manzerolle, V. The Regulation of Media and Communications in the Borderless Networked Society. Laws 2021 , 10 , 78. https://doi.org/10.3390/laws10040078

Chapdelaine P, Manzerolle V. The Regulation of Media and Communications in the Borderless Networked Society. Laws . 2021; 10(4):78. https://doi.org/10.3390/laws10040078

Chapdelaine, Pascale, and Vincent Manzerolle. 2021. "The Regulation of Media and Communications in the Borderless Networked Society" Laws 10, no. 4: 78. https://doi.org/10.3390/laws10040078

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Internet regulation as media policy: Rethinking the question of digital communication platform governance

Flew, Terry , Martin, Fiona , & Suzor, Nicolas (2019) Correction to: Internet regulation as media policy: Rethinking the question of digital communication platform governance. Journal of Digital Media and Policy , 10 (1), pp. 33-50.

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This article identifies the current global ‘techlash’ towards the major digital and social media platforms as providing the context for a renewed debate about whether these digital platform companies are effectively media companies (publishers and broadcasters of media content), and implications this has for twenty-first-century media policy. It identifies content moderation as a critical site around which such debates are being played out, and considers the challenges arising as national and regionally based regulatory options are considered for digital platforms that are ‘born global’. It considers the shifting balance between the ‘social contract’ of public interest obligations and democratic rights of free speech and freedom of expression.

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Flew, Terry Suzor, Nicolas http://purl.org/au-research/grants/arc/DP190100222 Export: EndNote | Dublin Core | BibTeX Repository Staff Only: item control page Browse research TEQSA Provider ID: PRV12079 (Australian University) CRICOS No. 00213J ABN 83 791 724 622 Accessibility Right to Information Mobile Close Open Menu In Favor of the Public Interest: Social Media Should be Regulated Jan 31, 2020 Stay updated on news, events, and more Join our mailing list In response to the question " Is there an ethical responsibility to regulate the Internet? ", the following essay was selected as a winner of Carnegie Council's 2019 international student essay contest. Subscribe to the carnegie ethics newsletter for more on the ethics of emerging technology, essay by rita valkovskaya. Social media presents a number of dangers that require urgent and immediate regulation, including online harassment; racist, bigoted and divisive content; terrorist and right-wing calls for radicalization; as well as unidentified use of social media for political advertising by foreign and domestic actors. To mitigate these societal ills, carefully crafted policy that balances civil liberties and the need for security must be implemented in line with the latest cybersecurity developments. According to Section 230 of the Communications Decency Act (CDA), private online service providers are free from liability for content posted on their sites, with some exceptions for child pornography, human trafficking, and other federal offenses. Social media freedom has empowered state and non-state actors with the means and know how to co-opt the media landscape. For example, in 2016 Russia used Facebook to micro-targets ads at Americans in order to sway the presidential election. This environment has also allowed "lone-wolf" attackers to use social media to broadcast violence. In 2019, the New Zealand mosque mass shooter live-streamed the attacks. Self-regulation by social media companies has thus far failed to address the growing threat to safety and democracy through suspect online content. The lack of control and regulation will continue to leave media content in a frightening vacuum, as foreign powers like Russia, and domestic and international extremists become ever more skilled at using social media to advance their agendas. The introduction and evolution of AI technology that is now capable of creating "deep fake" video content, using bots to micro-target populations with ads, and participate in human-like conversations, presents imminent future dangers of exponentially multiplying the current threats. Historically, in line with widely accepted journalistic standards of impartiality and accuracy, print publication editors at major news organizations applied a strict standard of ethical journalism before publishing content. As a result, they had the editorial power to prevent harmful content from reaching major audiences. Until the 1980's the "Big Three" media channels dominated American television, providing similar oversight in television. The interpretation of news by beloved newscasters like Walter Cronkite and Peter Jennings had the trust of the American public. Today, the editorial monopoly previously held by major news networks and print publications is being contested by numerous Internet sources. Falling print subscription rates have resulted in the collapse of the print publishing industry, with many major newspapers closing their doors or significantly diminishing the scope of coverage. Individuals, foreign interests, and anyone with a social media account and the ability to "crack" the code of social media distribution is capable of reaching audiences as large as major news sources like The New York Times or NBC News. According to James Lewis of the Center for Strategic and International Studies (CSIS), this new Internet and media structure creates "an absence of mediation" that is present in traditional media in the form of editors, or in a library in the form of a librarian. As a result, he argues, "fiction and fact blend easily." The biggest social media companies (Facebook, YouTube, Twitter) have both precipitated and exploited this growing media vacuum. According to a 2018 Pew Research study, roughly two-thirds of Americans get their news on social media, with Facebook accounting for 43 percent and YouTube for 21 percent of content. In his book Social Media and the Public Interest, Philip Napoli argues that coders and engineers are now on par with editors and journalists when it comes to crafting and disseminating media content. In the U.S., free speech has historically been adamantly protected, and potential infringement on it via social media regulation is anathema to anti-regulators. However, social media presents increasingly more dangers than traditional First Amendment expressions like spoken word. In the online sphere, "natural" forms of social regulation have become obsolete. Anonymity of Internet postings limits the ability of society to "penalize" the actor who chooses to use socially suspect language or ideas. For example, in real life, in-person harassment may cause physical retaliation, while repetition of controversial and fringe ideas can cause social ostracism, affecting the future expression of such anti-social behaviors. Online, anti-social personalities meet their equals and unite in their transgressions. Security is the foundation of a free society, and is foundational for the freedom to vote in a fair and free environment. Today many Americans feel a lack of adequate security when faced with revelations of foreign interference in domestic elections, or instances of terrorists and extremists using social media platforms to conduct operations to murder and maim. The sheer size of the social media market in news delivery, as well as the numerous instances of social media being used for harmful ends, are powerful reasons why the freedom of social media must be limited with carefully crafted, democratically discussed regulations. Without it, our society is giving the reigns of our security, the direction of our value system, and a healthy functioning of our election cycle, to uncontrollable and unpredictable forces, or worse yet, to malicious actors who act with ill intent against the public interest. I propose the following first steps to achieve effective social media regulation: 1. The government must create a clear set of standards for social media communication, and compel compliance The development of new laws and policy should be the outcome of engagement with the private sector, the security community, as well as international actors in order to design a system upon consensus and multi-disciplinary, balanced set of views. For example, 2018 legislation proposed in the U.S. Senate aimed to protect the right of the population not to be targeted and misled by social media micro-targeted content and political ads placed by foreign powers. The "Honest Ads Act" proposes compelling social media companies to disclose their advertising methods. The "Bot Disclosure Accountability Act" proposes the creation of limits on the use of automation behind ads on social media. Further legislation must be developed in order to assure transparency behind ads and memes and allow readers of social media to become educated consumers, making educated choices based on disclosures about who placed the ads and content, and who provided the funding for the content. 2. The government must actively engage in multilateral negotiations with international partners to establish a base standard of behavior in the social sphere, and define what constitutes a cyber-information attack or cyber attacks Russia has weaponized the information sphere to spread disinformation during the 2016 elections in the U.S., and has used these tactics during military action in Georgia and Ukraine, in order to confuse public opinion and win military conflicts. In order to prevent further attacks, the U.S. must define the "red lines" that foreign actors must not cross, or else risk some specified retaliation from the United States. 3. The United States should follow and evaluate the outcomes of social media regulation already executed in other countries, and base domestic regulation on best practices For example, Singapore's recent legislation criminalized fake news, as defined within the discretion of the government. Violators who don't comply with government requests are penalized with hefty fines. Germany now regulates social media content via the Network Enforcement Act, aka NetzDG, by mandating that social media providers comply with government guidelines on blocking hate speech, defamation, and other illegal content. Fines go up to $56 million per violation. 4. The government should continue to provide research funding for private firms, the government, and academic institutions to advance the use of machine learning and AI in the spheres of social media "clean-up" Using automated regulation is a cumbersome and nascent exercise. Current use of AI to delete offensive content has the potential of making mistakes, and is too labor intensive to moderate every single social media message posted online. As a result, significant funding into this field is crucial in order to balance targeted content removal with constitutional free speech protections. A successful example of automated content regulation is Google's Redirect Method, which uses an AI algorithm to guide the users to content opposing extremism if they seek out offensive content like terrorists messaging. In the U.S., where media access is varied and free and journalistic integrity continues to be a celebrated standard, there is a false feeling of security in regards to the quality, fairness, and truthfulness of information that people consume. Because the media is not used as a tool of government control as in a dictatorial state, it is easy to forget that the media can have powerful effects on their psyche, emotions, consumer choices, choices of jobs, and social behaviors. Continuing without regulation out of fear of undue government control over free speech results in embracing the steady flow of harmful content generated haphazardly by multiple parties on social media, as a continuing threat the public interest. Rita Valkovskaya is a Master of Public Administration student at Syracuse University's Maxwell School of Citizenship and Public Affairs focusing on security, emerging technologies, and Russian and Eurasian affairs. She is a graduate of Georgetown University's School of Foreign Service. She currently works as a graduate researcher at the Syracuse University Institute for Security Policy and Law, where she conducts research into the Russian technology sector. Rita's future goals are to influence policy in order to serve and better the local and global community. With a former professional background in luxury manufacturing and entrepreneurship, Rita combines her passion for global affairs and security with a deep understanding of business, global supply chains, and the power of image creation in the media. In her free time, Rita loves to hike, kayak, explore the outdoors, and travel. You may also like MAR 19, 2024 • Podcast 2054, with Elliot Ackerman and Admiral James Stavridis Ackerman & Admiral Stavridis join "The Doorstep" for a talk on AI, geopolitics, and a dark future that we must do all we can to avoid. Hosted by Nikolas K. Gvosdev & Tatiana Serafin FEB 23, 2024 • Article What Do We Mean When We Talk About "AI Democratization"? With numerous parties calling for "AI democratization," Elizabeth Seger, director of the CASM digital policy research hub at Demos, discusses four meanings of the term. By Elizabeth Seger MAR 13, 2023 • Podcast C2GTalk: How can companies ensure carbon dioxide removal has a positive impact? with Amy Luers New thinking is needed to ensure high-quality nature-based carbon dioxide removal (CDR) offers genuine and long-lasting benefits to the climate and biodiversity, says Amy Luers, ... Hosted by Mark Turner Ethics Empowered Using the power of ethics to build a better world Sign up for news & events [email protected] 212-838-4122 170 East 64th Street New York, NY 10065 Privacy Policy Accessibility Policy Paper Information Paper Submission Journal Information About This Journal Editorial Board Current Issue Author Guidelines International Journal of Applied Sociology p-ISSN: 2169-9704    e-ISSN: 2169-9739 2021;  11(1): 21-31 doi:10.5923/j.ijas.20211101.03 Received: Feb. 24, 2021; Accepted: Mar. 24, 2021; Published: Apr. 15, 2021 Effectiveness of Media Regulation in Botswana Seunghoon Lee 1 , 2 1 MBA Graduate Class of 2017, Graduate School of Business, Seoul National University, Republic of Korea 2 M.Com., MPA (Master of Professional Accounting) Graduate Class of 2009, University of Sydney Business School, Sydney NSW, Australia Email: Copyright © 2021 The Author(s). Published by Scientific & Academic Publishing. Background: Media plays a crucial role in the society. It keeps people well informed about what takes place locally and abroad. For there to be an efficient media system that can stand out to be counted on matters of integrity and accountability, there has to be measures that are put in place to ensure that the regulations are effective and working. Research Objectives: This research has attempted to find how the level of media regulation in Botswana. It specifically talks about the duties of the Media Council and how effective it has been in implementing its functions within the country. The research gives a detailed background about the importance of the media regulation. Methodology: The selected methods of data collection and how data was eventually collected from the targeted group is clearly shown. There is a rich description and an in-depth analysis of the collected data about Media regulation in Botswana. There is also an enhanced discussion that is purely based on the findings of the research regarding media regulation in Botswana. Setting and location: Botswana. Findings and conclusion: It is evident that media plays a crucial role in keeping the society well informed about what goes on both within the country and across the world. However, for there to be a viable media industry, there has to be a positive will from the government. Media freedom can ensure that the players carry out the duties without restrictions and without favoritism. Keywords: Media regulation, Media self-regulation, Media in Botswana, Social co Cite this paper: Seunghoon Lee, Effectiveness of Media Regulation in Botswana, International Journal of Applied Sociology , Vol. 11 No. 1, 2021, pp. 21-31. doi: 10.5923/j.ijas.20211101.03. Article Outline 1. introduction, 2. literature review & theoretical framework, 3. methodology. Gender representation Level of qualification Current employment status Current work Related work area Work tenure Media regulation in Botswana The role of Botswana Press Council Major Causes of Unethical Journalism in Botswana Government support of Botswana Press Council Major issues that affect the performance of BPC Suggestions to overcome the major issues that affect the performance of BPC 4. Discussion 5. recommendations and conclusions. [1]   Akpabio, E., & Seamogano M. (2018) "Failure of media self-regulation? Documenting stakeholders’ attitude to the Botswana Media Complaints/Appeals Committees." 6.2: 144-157. [2]   Asal, V. (2016) "Killing the Messenger: Regime Type as a Determinant of Journalist Killing, 1992–2008." 14.1 (2016): 24-43. [3]   Balule, B. T. (2016). "Promoting and safeguarding media pluralism in Botswana: an assessment of legal risks." 42.1 (2016): 84-104. [4]   Braun, V., & Clarke, V. (2013). . SAGE. [5]   Leavy, P. (2017). . Guilford Publications. [6]   Singh, K. (2007). . Sage Publications India Pvt Ltd. [7]   Dijck, J. van, Poell, T., & Waal, M. de. (2018). . Retrieved from 208. [8]   Dunne, S. (2017). (PhD.). Dublin City University, Dublin. [9]   Fombad, C. M., & Tachilisa, B. B. (2018). . Kluwer Law International BV. . Paper presented at the [10]   Frederickson, H. G., & Walling, J. D. (2019). Research and knowledge in administrative ethics. In (pp. 63-84). Routledge. [11]   Good, K. (2017). "Democracy and development in Botswana." 35.1 (2017): 113-128. [12]   Hallin. DC, Mancini, P. (2004) : Three Models of Media and Politics, NY, Cambridge University Press. [13]   Hughes, S. (2017). "Expanding influences research to insecure democracies: How violence, public insecurity, economic inequality and uneven democratic performance shape journalists’ perceived work environments." 18.5 (2017): 645-665. [14]   Jankey, O. M., Ngwenya, B. N., & Refilwe P. S. (2017). 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[21]   Maundeni, Z., Masilo, B., & Patience, P. (2017). "Political Reforms for Prosperity and Political Resistance in Botswana." 2.4 (2017): 99. [22]   Mills, A. J., Wiebe, E., Durepos, G., & Weatherbee, M. (2010). . California: SAGE Publications. [23]   Moahi, K. (2016) "An analysis of Botswana-China relations in the Botswana print media." (2016). [24]   Mogalakwe, M., & Nyamnjoh, F. (2017) "Botswana at 50: democratic deficit, elite corruption and poverty in the midst of plenty." (2017): 1-14. [25]   Mosweu, T., & Ngoepe, M. (2019). Governance of Liquid Communications in the Botswana Public Sector: Neither Restricted by Time nor Space. In (pp. 53-69). IGI Global. [26]   Munce, S. E., & Onwuegbuzie, A. J. (2019). Mixed Methods Analysis. , 129. [27]   Muneri, C. T. (2018). . New York: Springer. [28]   Petronio, S. (2015) "Communication privacy management theory." (2015): 1-9. [29]   Sebudubudu, D. (2017) "Factors that impede democratic consolidation in Botswana." 13.1 (2017): 137-153. [30]   Shekhar, P., Prince, M., Finelli, C., Demonbrun, M., & Waters, C. (2019). Integrating. [31]   Shimeles, B. (2017). (Masters). Addis Ababa University, Ethiopia. [32]   Should we, can we, and how? , (1), 81-97. [33]   Zhang, Y., & Wildemuth, B. M. (n.d.). . 12. [34]   Alsius, S. (ed.) (2010): , Generalitat de Catalunya, Barcelona. [35]   Bussiek, H. (2008). Self-Regulation of the Media in the SADC -Region Experiences with Media Councils in Southern Africa. Retrieved January 13, 2020 from https://4m.cn/piASq. [36]   Hallin, D.C. and Mancini, P. (2004). Comparing media systems: Three models of media and politics. Cambridge University Press. [37]   Livingstone, S. (2012) Challenges to comparative research in a globalizing media landscape. In: Esser F and Hanitzsch T (eds) . New York; Oxon: Routledge, pp. 415–430. [38]   Robbins, S. P., & Judge, T. A. (2010). Essentials of Organizational Behavior. Boston, MA: Pearson Education, Inc. SUGGESTED TOPICS The Magazine Newsletters Managing Yourself Managing Teams Work-life Balance The Big Idea Data & Visuals Reading Lists Case Selections HBR Learning Topic Feeds Account Settings Email Preferences Are We Entering a New Era of Social Media Regulation? Dipayan Ghosh The attack on the Capitol could mark a point of no return. The violence at the U.S. Capitol — and the ensuing actions taken by social media platforms — suggest that we may be at a turning point as far as how business leaders and government bodies approach social media regulation. But what exactly will this look like, and how will platforms balance supporting free speech with getting a handle on the rampant misinformation, conspiracy theories, and promotion of fringe, extremist content that contributed so significantly to last week’s riots? The author argues that the key is to understand that there are fundamental structural differences between traditional media and social media, and to adapt approaches to regulation accordingly. The author goes on to suggest several areas of both self-regulation and legislative reform that we’re likely to see in the coming months in response to both recent events and ongoing concerns with how social media companies operate. After years of controversy over President Trump’s use of social media to share misleading content and inflame his millions of followers, social media giants Facebook and Twitter finally took a clear stand last week, banning Trump from their platforms — Facebook indefinitely, and Twitter permanently. Could this indicate a turning point in how social media companies handle potentially harmful content shared on their platforms? And could it herald a new era of social media reforms, through both government policies and self-regulation? Dipayan Ghosh is co-director of the Digital Platforms & Democracy Project at the Mossavar-Rahmani Center for Business and Government at the Harvard Kennedy School. He was a technology and economic policy advisor in the Obama White House, and formerly served as an advisor on privacy and public policy issues at Facebook. He is the author of Terms of Disservice (2020). Follow him on Twitter @ghoshd7. Partner Center Bibliography More Referencing guides Blog Automated transliteration Relevant bibliographies by topics Automated transliteration Relevant bibliographies by topics Referencing guides U.K. government revisits social media regulation after far-right riots An anti-immigration riot in Rotherham, England, on Aug. 4. Hollie Adams/Reuters The British government is considering changes to the Online Safety Act designed to regulate social media companies, following a week of racist rioting driven by false information online. Why it’s important The act, passed in October but not set to be enforced until early next year, allows the government to fine social media companies up to 10% of global turnover if they are found in breach. At present, companies would only face a fine if they fail to police illegal content, such as incitements to violence or hate speech. Proposed changes could see Ofcom sanction companies if they allow “legal but harmful” content such as misinformation to flourish. Britain’s recently-elected Labour government inherited the legislation from the Conservatives, who spent many months tweaking the bill in an attempt to balance the right to free speech with concerns over online harms. On Friday, pollster YouGov published a survey of more than 2,000 adults, which found two thirds (66%) believe social media companies should be held responsible for posts inciting criminal behaviour. A further 70% of respondents said social media companies were not strongly regulated enough, and 71% said they did not do enough to counter misinformation while the riots were ongoing. Cabinet Office minister Nick Thomas Symonds said on Friday that the government would revisit the law’s framework. “There are obviously aspects of the Online Safety Act that haven’t come into effect yet. We stand ready to make changes if necessary,” he said on Sky News. Sadiq Khan, the Mayor of London, told the Guardian on Thursday that the Online Safety Act needed to be amended in the wake of the riots. “I think what the government should do very quickly is check if it is fit for purpose. I think it’s not fit for purpose,” he told the newspaper. Disorder spread across Britain last week, after widely-shared online posts wrongly identified the suspected killer of three young girls in a July 29 knife attack as a Muslim migrant. As rioters clashed with police in some towns and cities, X owner Elon Musk also used his platform to share misleading information with his millions of followers, including one post suggesting civil war was “inevitable” in Britain. Prime Minister Keir Starmer’s spokesperson said there was “no justification” for such comments. Report an editorial error Report a technical issue Follow related authors and topics Britain Follow You must be logged in to follow. Log In Create free account Government Follow You must be logged in to follow. Log In Create free account United Kingdom Follow You must be logged in to follow. Log In Create free account Authors and topics you follow will be added to your personal news feed in Following . Interact with The Globe 332 IMAGES (PDF) A new model for media regulation PPT Media regulation Media Regulation PPT Media regulation regulation A regulation is simply a COMMENTS PDF A Law & Economics Approach to Social Media Regulation result from social media regulation. Part III will then apply the insights from Part I and II to the areas of privacy, children's online safety, and speech regulation. The thesis of this essay is that policymakers must consider what the nature of social media companies as multisided platforms means for regulation. The balance struck by so- PDF Media Regulation: Why, How and to What End? Undoubtedly, commercial and technology progress are continuously changing our perception, still both print and digital media play a vital role in opinion building. The administration and regulatory mechanisms are sort of adopted at various levels to improve the role of media, however the focal thrust of this paper is based on how the regulatory ... Social Media Regulation in the Public Interest: Some Lessons from Prominent media scholar Philip M. Napoli recently wrote a book that advocated reviving the public interest criterion to guide new regulations of the internet. 5 5. Philip M. Napoli, Social Media and the Public Interest: Media Regulation in the Disinformation Age (2019) [hereinafter Social Media and the Public Interest]. PDF Regulation of Media Content in Kenya: In Search of a Paradigm in the The regulation of media content and practice should be based on a well defined system and policy. Two different systems are applied in regulating the media industry, that is, Statutory regulation system and Statutory media self-regulation system. This paper intends to establish the suitable media regulatory system for Kenya. A Law & Economics Approach to Social-Media Regulation The thesis of this essay is that policymakers must consider social-media companies' status as multisided platforms means for regulation. The balance struck by social-media companies acting in response to the market incentives they face could be upset by regulation that favors the interests of some users over others. Full article: A theory of media freedom For example current proposals for social media regulation raise questions about whether the institutional autonomy of social media should be shared as an objective. ... 20, J Lichtenberg, 'Foundations and Limits of Freedom of the Press' in J Lichtenberg (ed), Democracy and the Mass Media: A Collection of Essays (Cambridge University Press ... Laws Building on the scholarship of Canadian media theorist Marshall McLuhan3 and others, as a point of departure to explore the regulation of new media, this Special Issue tackles several of these pressing questions in a post-colonialist (see Chrystall 2021), post-truth environment.Various theories about media, networks and borders at the intersection of law and regulation will, so we hope, better ... Media Governance: A New Concept for the Analysis of Media Policy and However, media governance is characterized as a new concept suited for the analysis of media policy and regulation. This concept is argued to be not only of heuristic value by offering an integrated view on rules in the media sector but also adaptive to various theoretical approaches. In particular, the article shows the merits of connecting ... From Censorship to Policy: Rethinking Media Content Regulation and Debates about media content regulation have tended to be dominated by pro-censorship and anti-censorship arguments. This paper argues for a shift in understanding towards a more policy-oriented and empirical approach, which recognises that the field has been characterised not so much by the 'prohibition model', but by complex and multifaceted techniques of institutional governance, and ... PDF Masters Thesis The thesis investigates the need for regulation of media content and compares, in contrast, how the free market has simply transferred responsibility of regulation from that of the government, to that of private corporations, and put the onus of ensuring that one's choices are informed, into the hands of the individual. Internet regulation as media policy: Rethinking the question of digital Flew, Terry, Martin, Fiona, & Suzor, Nicolas (2019) Internet regulation as media policy: Rethinking the question of digital communication platform governance. Journal of Digital Media and Policy, 10(1), pp. 33-50. Practices, Policies and Regulation in African Journalism: Mapping a In general, media regulation in Africa is seen as an essential element for the consolidation of democracies. After their transitions to independence in the 1960s, many African countries mirrored institutional models for media policy and regulation from the former colonial powers. ... A selection of essays in this issue explores the impact of ... PDF Press regulation in South Africa: an analysis of the Press ... 5.2.4 The negative mythologisation of the Media Appeals Tribunal 69 5.2.5 A fixation on the press regulatory mechanism 72 5.2.6 A conflation with media diversity and transformation, and a stagnation 77 of the debate 5.2.7 The ANږs claim of an oppositional agenda on the part of the media 82 6. Conclusion 85 References 86 Appendices Social Media Should be Regulated Germany now regulates social media content via the Network Enforcement Act, aka NetzDG, by mandating that social media providers comply with government guidelines on blocking hate speech, defamation, and other illegal content. Fines go up to $56 million per violation. 4. The government should continue to provide research funding for private ... Essays on Regulation of Media, Entertainment, and Telecommunications media ownership concentration and measuring its effects provides necessary context to policy discussions. Describing the complexities of the legal environment does the same. But alongside my economic and legal analysis of the regulation of the media, entertainment, and telecommunications industries, I also recognize the perspectives and Why to regulate Netflix: the cross-national politics of the audiovisual Firstly, the article explores the key outlines that the academic literature highlights in order to understand the regulation of online platforms in the media sectors. Secondly, it provides a cross-national portrayal of policy initiatives towards the VOD streamers, focusing on the EU Member States, Australia, Canada, Mexico and South Africa. ... Effectiveness of Media Regulation in Botswana The research gives a detailed background about the importance of the media regulation. Methodology: The selected methods of data collection and how data was eventually collected from the targeted group is clearly shown. There is a rich description and an in-depth analysis of the collected data about Media regulation in Botswana. How has Social Media affected media regulation? Regulatory action in social media is typically focused upon disclosure of interest, protection of children, codes of practice and the prohibition of offensive material (Van Dijck, 2013). This will be investigated as follows. First, the impact of social media upon media regulation will be discussed. Secondly, the approaches to self-regulation ... Practices, Policies and Regulation in African Journalism: Mapping a In general, media regulation in Africa is seen as an essential element for the consolida-tion of democracies. After their transitions to independence in the 1960s, many African countries mirrored institutional models for media policy and regulation from the former colonial powers. In several countries, press freedom received constitutional ... Are We Entering a New Era of Social Media Regulation? Summary. The violence at the U.S. Capitol — and the ensuing actions taken by social media platforms — suggest that we may be at a turning point as far as how business leaders and government ... Mass media regulation Mass media regulations are a form of media policy with rules enforced by the jurisdiction of law. Guidelines for media use differ across the world. This regulation, via law, rules or procedures, can have various goals, for example intervention to protect a stated "public interest", or encouraging competition and an effective media market, or establishing common technical standards. The Historicity of Media Regulation in Zambia; Examining the Proposed Introduction. Media regulatory frameworks the world over usually occur within specific social-political contexts that vary according to the prevailing political system (Mattoni and Ceccobelli Citation 2018; Hulin Citation 2014).Thus, it is as commonplace to find repressive regulatory regimes in authoritarian states as it is to find more accommodating ones in liberal democracies. Dissertations / Theses: 'Regulation of mass media' This thesis would argue that, taken as a whole, the de-regulation of UK media ownership in 1996 has delivered relatively few enhancements to the economic efficiency or prospects of the UK media industry while, at the same time, has engendered a considerable welfare loss through lower safeguards for pluralism. Jan. 6 defendant detained for allegedly threatening Garland, Trump A Jan. 6 defendant was taken into custody this week after allegedly making social media posts threatening people involved in former President Trump's legal battles, and FBI agents who ... U.K. government revisits social media regulation after far-right riots The act, passed in October but not set to be enforced until early next year, allows the government to fine social media companies up to 10% of global turnover if they are found in breach. assignment essay homework paper phd report resume review speech thesis