Here’s an interesting op-ed piece in the Boston Globe, by a fellow named Josh Bernoff. The premise is that in this social media age, most people are exposed to what they want to hear, largely due to algorithms that feed “both sides” the facts and opinions they are predisposed to believe. This, in turn, has deepened our divisions and led to our highly divided polity, with the brain dead on one side and the rational folks on the other. (Bernoff doesn’t quite describe the divide that way, but we know the truth)
Bernoff, presents his proposal as a way of at least partially reinstating the Fairness Doctrine, the destruction of which by the Reagan Administration is responsible for right wing talk radio and Fox News, among other horrible things.
Let me step back and say that if you tried to reinstate the Fairness Doctrine today, even solely on broadcast media, the current Supreme Court would declare it unconstitutional. Bernoff’s proposal might just pass muster with this court, though I wouldn’t bet my life savings on it.
He basically proposes a trade off. Facebook, Twitter and their ilk get to keep their Section 230 protections, which basically prevent them from being sued for the content they publish, so long as they agree to something in return:
Last year, Facebook generated $70 billion in advertising revenue; YouTube, around $15 billion; and Twitter, $3 billion. Now the FCC should require them to set aside 10 percent of their total ad space to expose people to diverse sources of content. They would be required to show free ads for mainstream liberal news sources to conservatives, and ads for mainstream conservative news sites to liberals. (They already know who’s liberal and who’s conservative — how do you think they bias the news feed in the first place?) The result would be sort of a tax, paid in advertising, to compensate for the billions these companies make under the government’s generous Section 230 liability shield and counteract the toxicity of their algorithms.
Why do this with ads, rather than inserting posts directly into the social media news feed? Dropping an unexpected post into a news feed — not from a friend and not labeled an advertisement — would feel like an unwelcome intrusion to many users. Besides, media companies already know that ads work: A healthy chunk of the social media titans’ ad revenue already comes from ads that generate clicks into media sites.
These ads would also create a dynamic that would strengthen engagement across the political spectrum. MSNBC, offered free ad units targeted to conservatives, would not provide its new audience with the same old liberal content, because no conservative would ever click on that. Instead, it would have to figure out how to create and advertise content attractive and interesting to those outside its natural audience. Fox News would grapple with the same conundrum from the opposite side of the political spectrum. While I wouldn’t expect such content to appear in those networks’ marquee broadcasts, there could certainly be a place for it in a section of their websites. For example, a media site might post links to articles like “The three priorities liberals and conservatives agree on’’ and “A startling way to move beyond the health care impasse.’’ We’d see more media on shared values, rather than the red-meat issues that divide us.
It might work.
To step back a bit. Section 230 provides protections to the evil Zuckerberg et.al., that mainstream media (even Fox, witness its rush to fact check Lou Dobbs when voting machine manufacturer Smartmatic threatened to sue) does not have. Not only can a newspaper publisher be sued for libel if it libels someone, it can be sued for libel if it passes along someone else’s libel, in the form of an ad, for instance. That was the basis for the suit in New York Times Co. v. Sullivan, the landmark case in which the rational Supreme Court of long ago ruled that a public figure had to prove actual malice to prevail in a libel action. The plaintiff in that case took issue with an ad that the Times printed, not content the Times itself had written. The court did not question that the Times could be liable for the contents of an ad that it simply printed. It simply ruled that there is a higher standard when a public figure is doing the suing.
At the current time, due to Section 230, if I clearly libel someone on Facebook, I can be sued, but, unlike the New York Times, Facebook cannot. It saves them a lot of money in two ways: besides not paying libel judgments, they can basically spend little or no time moderating content.
So, unless the present Supreme Court were to impose the equivalent of Section 230 as a matter of constitutional law (and that’s entirely possible) it would have to step aside and let this trade off become law.
It would be far better if we could 1) get rid of Section 230 altogether, or substantially modify it, and 2) reimpose the Fairness Doctrine, but as I said earlier, it’s almost a certainty that the current court would, at the behest of Fox among others, rule the Fairness Doctrine unconstitutional.So, Bernoff’s suggestion might be worth a try. One caveat: how do you define “mainstream” news sources in a way that passes constitutional muster? If Fox gets to advertise to me for free, why shouldn’t OAN or Newsmax?
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