Could the Supreme Court’s Fairness Doctrine Ruling Provide Precedent for Net Neutrality

A recent Bloomberg piece discussed the famous Red Lion case that upheld the Fairness Doctrine, and how the legal precedent could impact the Net Neutrality debate.


Of course, if the ISPs are in the information business, it doesn’t immediately follow that net neutrality is compelled speech. Back in 1969, the Supreme Court decided a case called Red Lion Broadcasting Co. v. FCC. In the decision, the court upheld the FCC’s “fairness doctrine,” which required broadcast networks to provide equal time for both sides of controversial political and social issues.

The court’s rationale was that bandwidth was inherently limited. The government was giving out that bandwidth through its broadcast licenses. In so doing, the government was justified in imposing certain speech on broadcasters in the service of “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.”

With the emergence of cable television and then the Internet, the Red Lion doctrine faded almost into obsolescence. The fairness doctrine looked like a relic of the days when there were three national television networks that dominated news provision. In the era when anyone could say anything on the Internet, bandwidth no longer seemed to be limited.

The net-neutrality debate provides an occasion to revive the Red Lion decision. Does the public have a right to equal access to information on the Internet? If it does, that right must come from a combination of limited access and the right to know.

To learn more about the Red Lion case, the abuses of the Fairness Doctrine by the Kennedy and Johnson administrations and how the rule was dismantled, read The Right Frequency.

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