Fairness Doctrine Likely in Sohn Spotlight Despite Diminishing Prospects

Senate Commerce Committee Republicans’ questioning of Democratic FCC nominee Gigi Sohn at a planned Wednesday confirmation hearing (see 2111230066) is likely to partially focus on her views on the fairness doctrine in a bid to suggest her joining the commission would increase the chances the agency would seek to bring back the long-rescinded rules, lawmakers and officials told us. Sohn backers question the likely GOP focus on that issue, arguing that while she and others in the past preferred bringing back the rules, such erstwhile supporters see virtually no momentum in its favor under a 3-2 Democratic majority.

Sohn in 1994 co-wrote a pro-fairness doctrine Washington Post opinion piece with now-Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman amid Congress’ consideration of the Fairness in Broadcasting Act, then the most recent legislative attempt to undo the FCC’s 1987 repeal of the broadcasting rules. Sohn at the time was Media Access Project deputy director and Schwartzman executive director.

Sohn didn’t comment last week on her current fairness doctrine views. Officials we spoke with noted recent public comments indicate she no longer favors bringing the rules back given perceptions they would be ineffective in the current media landscape. FCC Chairwoman Jessica Rosenworcel earlier this year restated her own opposition to bringing back the fairness doctrine for similar reasons amid pressure from House Commerce Committee Republicans (see 2106110057).

Senate Commerce Republicans are already voicing misgivings over Sohn’s stances on a range of communications policy issues, though the one they have publicly focused on thus far has been her support for bringing back the FCC’s 2015 net neutrality rules and accompanying reclassification of broadband as a Communications Act Title II service (see 2111160001). Aides to some committee Republicans told us they expect a broader range of criticisms at the Wednesday hearing, with some senators specifically preparing fairness doctrine questions.

House Communications Subcommittee Chairman Mike Doyle, D-Pa., told us he wouldn’t be surprised by a GOP bid to paint Sohn’s potential confirmation as paving the way for the doctrine’s return given the way Republicans emphasized the issue during a February subpanel hearing on broadcasting and cable companies’ role in spreading disinformation (see 2102240064). “It’s what they always do,” he said. “They invent or say whatever they want to say to just be obstructionist. We’ve seen this play a thousand times before.”

Doyle noted no Democratic Hill lawmaker is currently pursuing pro-fairness doctrine legislation. Then-Rep. Tulsi Gabbard, D-Hawaii, bowed the Restore the Fairness Doctrine Act during the last Congress, but House Communications never pursued advancing the measure amid Democrats’ reluctance to revisit the issue, lobbyists told us. Gabbard, who didn’t run for re-election last year, didn’t comment.

Rep. Anna Eshoo, D-Calif., similarly criticized the renewed GOP focus on the fairness doctrine earlier this year, in the wake of the disinformation hearing. “To quote Shakespeare, ‘methinks they doth protest too much,’” especially given the comparatively muted GOP response to former President Donald Trump’s 2020 push for an FCC Communications Decency Act Section 230 proceeding that could have produced a fairness doctrine for social media platforms, Eshoo said: The Republicans “had a field day” inaccurately calling a letter she co-wrote to 12 major providers asking them to justify carrying Fox News, Newsmax and One America News Network (see 2102220068) as pro-fairness doctrine.

House Commerce ranking member Cathy McMorris Rodgers of Washington, Communications ranking member Bob Latta of Ohio and other committee Republicans defended their concerns about a potential fairness doctrine push even after Rosenworcel restated her opposition to the policy. “We’re encouraged that [Rosenworcel] said” she doesn’t want to bring the rules back, but “we’re going to keep making sure that she holds firm” to that commitment, McMorris Rodgers told us. She noted concerns that any new Democratic commissioners could seek to sway Rosenworcel’s position.

Rep. Jeff Duncan, R-S.C., told us he filed his Reassuring that the U.S. Has Wide And Scrupulous Rhetorical Insight to Garnish Honest Thought Act (HR-1409) in February to make a point about the fairness doctrine’s redundancy rather than with an eye toward seeing the measure pass. HR-1409 would bar the FCC from “repromulgating” the repealed rules (see 2103010060). “It’s been proven the fairness doctrine is not necessary” in today’s media landscape, he said. “What really works are market forces and if the content that a station provides is of interest to” audiences, “they will tune in and stations will be able to sell” ads.

'Conversation Stopper'

Fairness doctrine supporters and opponents told us they don’t see its return as a realistic possibility and don’t view Sohn as favoring it either. “I do not regret my strong support of the fairness doctrine in the past, but the changing media landscape has made it unnecessary and unworkable today,” Schwartzman emailed us. “Broadcasting remains extremely powerful.” There’s “a continuing need for the equal opportunities requirement and for sponsorship disclosure, especially for political advertising, but not for the” overall rules, he said.

Some senators are “very likely” to raise the specter of the doctrine during Sohn’s confirmation hearing, but not because it is a legitimate concern, Free Press co-CEO Jessica Gonzalez said in an interview. The doctrine “very particularly applied to broadcasters” and “we’re in a different media environment” than existed at the time of the rule’s 1987 repeal. The fairness doctrine is “a standard bogeyman,” said University of Minnesota assistant professor-media law Christopher Terry.

Numerous media law experts say the only future for the doctrine is its ongoing use as a political messaging weapon. “It makes for a nice boogeyman to generate a negative reaction toward a nominee” or policy, said Duke University public policy professor Philip Napoli. “It has served a political rhetoric function … because it is so reviled at this point.”

The fairness doctrine has become “a conversation stopper,” said University of Pennsylvania media policy professor Victor Pickard. “As soon as the phrase is introduced, it’s over. You’re going to have knee-jerk reactions against it.” Any push for the rules’ return faces too many headwinds, including the fact broadcasters “would sprint to courts to battle against this thing” and the current Supreme Court would invalidate it quickly, said DePauw University communications professor Jeff McCall.

A fairness doctrine aimed at social media might stand better odds, but there would be huge implementation issues as well as questions about legal framework since broadcasters use shared public resources -- airwaves -- that social media doesn’t, Napoli said. While there is concern about the public rhetorical sphere and how it’s managed by social media, the U.S. relies on the marketplace to sort out what gets said, what’s fair and what’s not, McCall said.

Future Regulation?

The fairness rules “never really worked” because they ultimately chilled the atmosphere for coverage of a broad range of controversial issues, and a social media fairness doctrine would face similar issues of “managing the unmanageable,” McCall said. Pickard said while there’s a growing bipartisan push to regulate social media, it’s unlikely to advance much further. He said addressing issues like concentrations of power in news media and social media would likely have to come from an entirely new approach, such as a public media system not owned by commercial interests.

Legislators concerned that Sohn could push for a new fairness doctrine aren’t being “intellectually honest,” Gonzalez said. A recent Wall Street Journal opinion piece suggesting Sohn would seek to censor media ignored important context, painting Sohn’s past statements on lack of candor allegations against Sinclair Broadcasting as targeting that company’s content, Gonzalez said.

“There are a lot better ways to go after” Sohn, said TechFreedom General Counsel Jim Dunstan in an interview. “There are a lot of things to be concerned about” with Sohn as a commissioner, but “I’m not concerned that she’s going to bring back the fairness doctrine.” Dunstan as a broadcast attorney was involved in successful efforts to do away with the original doctrine 34 years ago. “Everyone is for fairness,” he said. “But look at the old fairness doctrine. It didn’t work great.”

Dunstan believes Sohn will push for increased regulation of broadcasters, but “the furthest” he could imagine her going would be trying to resurrect failed efforts from the Tom Wheeler-led FCC to study newsroom diversity. Free Press in 2020 pushed for the FCC to require disclosures on broadcasters to address COVID-19 misinformation, but Gonzalez told us that while that effort made sense in the pandemic’s early stages, it’s not something the group would call for now.

The “tech-lash” has made the idea of some form of federal content regulation more palatable to some on the fringes, but such proposals would likely fall apart in the face of any First Amendment challenge, Dunstan said. The FCC has “repeatedly declined to go into content” issues since the George W. Bush administration, Gonzalez said.