Technology, Freedom of Speech, and Rush Limbaugh

One of the great pillars of modern liberal democracy is its protection of the right to free expression.  The first act of any authoritarian government will be to censor critical voices:  the Chinese Communist Party thus exercises ever-tightening control over both legacy media and the internet; Putin has put all major media channels under his control, or the control of his cronies.  In a classic coup d’etat, like the one that took place in Myanmar earlier this month, the first acts of the plotters is to take over radio and television to control the flow of information.

This means that modern free speech protections are aimed primarily at government actions to control speech.  In classic American First Amendment thought, the government can’t be trusted to control speech; governments have no monopoly over the truth or wise policy.  The Oliver Wendell Holmes solution is to create a marketplace of voices, under the assumption that, over time, good information will drive out bad information in a process of democratic deliberation.  A similar idea underlies European thinking on free speech, such as the priority that Jürgen Habermas gives to the “public sphere” in democratic theory.
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Like any product market, the marketplace for ideas works best if it is large, decentralized, and competitive.  Like the principle of “one person, one vote,” the market for speech should encapsulate a similar principle of “one person, one voice.”

This principle, however, has been continually challenged by evolving technology, as Timothy Garton Ash pointed out in his book Free Speech.  The rise of radio, and later television, in the first half of the 20^th century created a one-to-many form of communication that enormously amplified the voice of whoever controlled that communications channel. Fascist demagogues like Mussolini and Hitler used radio intensively in their rise to power; Communist dictators made similar use of television.  For this reason, post-World War II liberal democracies enshrined freedom of speech in their basic laws, and paid special attention to the governance of radio and TV. In an age of limited over-the-air bandwidth, they could exercise powerful control through their ability to license and regulate.

If they were doing their jobs properly, democratic governments sought to avoid overt politicization of their regulatory capacity.  Rather, they drew boundaries around the fringes of discourse, ruling limited categories of speech out of bounds.  In Europe, this included views like neo-Nazi propaganda that was deemed a direct threat to democratic principles.  The United States was always more absolutist in its application of free speech rules, regarding only active incitement of violence or criminal activity as beyond the pale.  For broadcast media, however, the rules were stricter:  pornography, depictions of certain forms of violence, and other material deemed harmful to public interest were strictly regulated.

There were a variety of approaches to the regulation of political speech. Many European countries set up public broadcasters like the BBC in Britain or ZDF in Germany that were governed by independent boards.

These broadcasters’ mandates were to protect broad public interest rather than the interests of the particular political party in power at the time.  They were required to be nonpartisan in their coverage of news and political events.  They were, of course, subject to political bias in the choices of what to cover and what to ignore; on the whole, however, many of the public broadcasters in northern Europe succeeded in maintaining their independence and public support up to the present day.

Things worked differently in the United States.  The U.S. also sought to create a public broadcaster, the Corporation for Public Broadcasting, and to build a network of public radio and TV stations.  But these public broadcasters were captured by the left early on, and came to be viewed with increasing distrust by the right as the nation grew more polarized. Unlike northern Europe, there is no overwhelming consensus today in the U.S. that NPR represents a trusted, non-partisan source of news and information.

The Federal Communications Commission sought to regulate political speech through something called the “Fairness Doctrine.”  Licensed broadcasters were required to present “balanced” coverage of political events.  This policy was applied in the 1960s against a Christian radio station which then as today was spouting conspiracy theories about alleged plots by the CIA and FBI. Conservatives sued on grounds that the Fairness Doctrine violated First Amendment free speech protections.  The case went up to the Supreme Court, which ruled in 1969 in Red Lion Broadcasting v. FCC that the Fairness Doctrine was indeed consistent with the First Amendment given limited over-the-air spectrum, the uniqueness of broadcasting, public interest, and the state’s fiduciary responsibility.

This made the Fairness Doctrine itself a target of conservatives, who argued that it would stifle rather than encourage free speech, by deterring broadcasters from airing controversial content in the first place for fear of provoking an FCC action. The Fairness Doctrine was eventually rescinded by the FCC itself under Republican chairman Denis Patrick in 1987, in a 4–0 vote. The Democrats in Congress have subsequently tried unsuccessfully to reinstate the doctrine on several occasions but faced strong opposition from Republican administrations, including a veto by President Reagan and a threatened veto by President George H. W. Bush.

Following the passing of Rush Limbaugh last Wednesday, a number of commentators have lamented the rescinding of the Fairness Doctrine and linked his enormous success to its demise. I believe this is profoundly mistaken. Much as I detest Limbaugh’s hyperpartisan language and the poison he injected into American politics, no one was forcing his 15 million daily listeners to tune in.  Conservative talk radio emerged in the 1980s at a moment when legacy media was indeed dominated by a liberal consensus; there was a huge unmet demand for conservative voices which was largely met through an underused communications channel, AM radio.

With the rise of conservative talk radio, speech in the United States became freer, even as it turned more toxic and divorced from traditional journalistic standards of credibility.  This shift was not initially controlled by oligarchs pulling strings behind the scenes; rather, it represented the blooming of a hundred flowers as talk show hosts found ready audiences in dozens of cities around the country.  The problem was the audiences themselves, who demonstrated an unquenchable thirst for vitriolic content.

At present, the greatest challenges to free speech in established liberal democracies like the U.S. do not come from the government.  Nor do they come from grassroots demands for conservative content. Rather, they come from private actors who have been able to make use of technology to artificially amplify certain voices over others.  This power takes several forms, including oligarchical control of legacy media, and the new power arising from the rise of the large internet platforms.  Our understanding of the requirements of free speech need to be modified to take account of this shifting terrain of technologically-enabled speech, which will be the subject of my next posts.

Limbaugh-Trump photo: Public Domain, https://commons.wikimedia.org/w/index.php?curid=78293377