Fairness Doctrine 2.0: The Ever-Expanding Definition of Neutrality Under the First Amendment

46 Pages Posted: 19 Jun 2018

Date Written: 2018


Since the early days of dial-up service, prominent voices have urged government regulation of speech on the Internet. A cross-section of policymakers and pundits are now calling for a change in the status quo, while others warn that recent developments could spur a departure from the “hands-off” policy of the FCC.

During the net neutrality debates, many critics feared that the Open Internet Order would lead to greater FCC control of the Internet, with some even going further: warning that the agency would implement some form of a new Fairness Doctrine for the medium. Despite the Restoring Internet Freedom’s essential repeal of the Open Internet Order, these concerns have been given credence by calls for crackdowns on fake news and extremism; for platform, search, and app neutrality; and for government intervention to stop the censorship policies of Silicon Valley companies.

This Article begins by surveying several developments that give rise to this alarmism. It examines whether the FCC would have the statutory authority to regulate content on the Internet. It then considers several policy proposals before assessing the constitutionality of any regulatory intervention. It argues that greater regulation of online political content will chill free speech, spawn unintended consequences, and run afoul of the Constitution. It argues that an attempt to enforce any type of Fairness Doctrine for the Internet will be too difficult to administer, leading to suffocating litigation; unfair application to ISPs, platforms, and websites; and an intellectually diminished Internet.

Keywords: First Amendment, Telecommunications, Media, Net Neutrality, Fairness Doctrine, Media Law, Communications Law, Telecommunications Law, Constitutional Law

JEL Classification: K10, K19, K23, K39

Suggested Citation

Jayne, Mike, Fairness Doctrine 2.0: The Ever-Expanding Definition of Neutrality Under the First Amendment (2018). First Amendment Law Review, Vol. 16, No. Spring, 2018, Available at SSRN: https://ssrn.com/abstract=3187787

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