We Hold These Distruths to be Self-Evident: How Legal History Could Save America from Itself

This paper explores the threat of disinformation to American society. Focusing on social and cable news media as the primary disseminators of disinformation, it examines how the very design and nature of these two mediums promote and stimulate the intentional and viral spread of wholly inaccurate information as well as the significant and tangible negative consequences experienced across American society as a result. The paper subsequently proposes a legal solution to this dilemma in the form of a repeal of Section 230 paired with a reinstatement of the Fairness Doctrine. The background, history, and effect of each are thoroughly discussed, and the prevailing legal and policy arguments against their respective repeal and reinstatement are considered and countered in concluding that the proposed solution would, to some degree, likely promote a more civil and informed American society better equipped to confront modern challenges.

Propaganda in the Guise of News

In the late 1940s, conservative radio commentator Fulton Lewis Jr. was embroiled in controversy after publicly criticizing consumer cooperatives for taking advantage of a federal tax loophole. Coinciding with the Federal Communications Commission’s reconsideration of its Mayflower doctrine—a ban on broadcast editorials—the dispute served as fodder for New Deal–era progressive media reformers. This article unpacks Lewis’s mostly forgotten role as an unwitting catalyst of progressive media regulations through reconsidering the FCC’s 1948 Mayflower hearings, which resulted in the fairness doctrine (1949–87). This doctrine mandated that broadcasters present controversial issues of public concern in an ideologically balanced manner. Lewis’s news-breaking thus became framed as a problem in need of federal regulatory solution by reformers who sought to sublimate radio into an idealized liberal public sphere. These reforms, however, framed political disagreement as an epistemological crisis and, in doing so, unintentionally bolstered a conservative critical disposition toward the mainstream press, exemplified in the “liberal media” trope.

The Radio Right in Decline

As the National Council of Churches’ Fairness Doctrine campaign accelerated, US Senate Democrats on the Commerce Committee announced an investigation into the Radio Right. That one-two punch convinced hundreds of radio station owners to drop conservative programs altogether. The cost of paying for free response time combined with the risk of losing their station license was too much. Carl McIntire appealed for help to Richard Nixon, but the administration was much more interested in the ways it could use the Fairness Doctrine to intimidate the major television networks into giving the president and the war in Vietnam more favorable coverage. With no help forthcoming and the loss of station WXUR in 1974, Carl McIntire’s program declined precipitously, although not without one last protest action from McIntire involving a World War II surplus minesweeper blasting a pirate radio signal off the shore of Cape May, New Jersey, in defiance of Federal Communications Commission rules.

“The Red Lion Roars Again”

After the assassination of John F. Kennedy, leadership of the counter–Radio Right censorship campaign passed to the Democratic National Committee (DNC). DNC Chairman John Bailey recruited operative Wayne Phillips to take charge of a team that would intimidate conservative broadcasters who either supported Barry Goldwater or attacked Lyndon Johnson during the 1964 election. By Phillips’s own estimations, the project was a remarkable success, garnering hundreds of hours of free airtime via Fairness Doctrine complaints. They were aided by a new front organization—secretly created by the DNC—called the National Council for Civic Responsibility. As a bonus, the campaign also generated a court challenge from journalist Fred Cook against conservative radio station owner John Norris. The resulting court case, Red Lion Broadcasting Co., Inc. v. FCC, went all the way to the US Supreme Court, which ultimately upheld the Fairness Doctrine.

Conclusion

The deregulation of the airwaves by the Jimmy Carter administration, combined with the advent of cable broadcasting, allowed the resurgence of politically conservative radio in the late 1970s and 1980s. A new generation of religious broadcasters—including Jerry Falwell and Pat Robertson—used radio and television to become household names. Indeed, it was while organizing to protect broadcasters from the Fairness Doctrine that the idea to create the “Moral Majority” came to Falwell. Also, radio broadcasting was the preferred way that former California Governor Ronald Reagan kept up his political brand as he prepared to run for president in 1976 and 1980. In the four decades since, right-wing talk radio has profoundly influenced national politics, but those tempted to call for a return to Fairness Doctrine–style regulation would do well to bear in mind Donald Trump’s expressed desire to challenge broadcasting licenses for critical journalistic outlets like NBC News.