How the “Public Interest” Serves the Interest of the Powerful

Nicholas Carr mines the history of twentieth century broadcasting to justify his call for Internet regulation. But as much as I wish his tale of smart regulators policing the airwaves and promoting democratic wisdom were accurate, it was never so straightforward. A deeper knowledge of the public interest standard in broadcasting reveals that it was always and inextricably entangled with anti-democratic authoritarianism. Carr’s failure to grapple with that unsavory history calls into question the merits of a project founded upon so unsteady a foundation.

From its inception, the idea of a singular “public interest” was a legal fiction hiding behind high-minded rhetoric; functionally, the public interest was whatever a small group of industry-captured, unelected technocrats decided it was. While sometimes those regulators took actions that arguably advanced the public good, as when the Federal Radio Commission de-platformed patent-medicine peddler John “Goat Gland” Brinkley, he is the exception that proves the opposite rule. Making Brinkley the only salient example of the commission’s public interest action in the 1930s leaves silent the many examples of its anti-democratic abuse of public interest power.

For example, the commissioners considered it obvious that the public interest on the airwaves would be best served by denying licenses to stations serving immigrant and minority groups and instead favoring competitors that promised to serve the majority population. Indeed, the list of those radio stations deemed to be broadcasting contra the public interest included those operated by unions, socialists, anti–New Dealers, Jehovah’s Witnesses, Black Americans, and Jews.

In the 1930s, the phrase “public interest” was used interchangeably with the interests of the “general population,” meaning white, native-born citizens with non-radical politics. Such a definition will likely strike Americans in the twenty-first century as neither democratic nor wise, but it was commonsensical at the time. From its inception, the public interest standard was a tool for majoritarian policing of marginalized, radical, and otherwise peripheral voices.

Perhaps the public interest standard later evolved into something more humane, equitable, and democratic? If all you knew about the history of broadcast regulation was Carr’s Pollyannish presentation, one might well think so. But let’s parse Carr’s description of the mid-twentieth-century summit of public interest optimism by looking at three examples: the Mayflower doctrine (1941), the fairness doctrine (1949), and Red Lion Broadcasting Co. v. FCC (1969).

In 1941, the FCC banned all station editorializing in what became known as the Mayflower doctrine. Carr says merely that the doctrine was “controversial” among broadcasters who accused the FCC of violating their right to free speech. (By the FCC’s own tortured logic, “A truly free radio cannot be used to advocate the causes of the licensee.”)

Carr, however, neglects to mention the messy particulars of the Mayflower case. It involved the flagship Boston station of the Yankee Network, owned by an inveterate critic of the Franklin Delano Roosevelt administration. In the late 1930s, Roosevelt had been, as one close observer put it, “putting the blow torch” on FCC Chairman Larry Fly to do something about the rise of anti–New Deal programming on the radio, once a safe space for the incumbent president in contrast to the significantly more critical newspaper industry.

When a disgruntled former Yankee employee, and a founder of the Mayflower Broadcasting Corporation, filed a competing claim for the license, this gave the FCC leverage to threaten to transfer the license unless Yankee promised to stop its anti-Roosevelt editorializing. Yet this anti-editorializing rule did not apply to FDR’s own fireside chats or, implicitly, to broadcasts supporting his legislative agenda. In other words, the direct antecedent of the fairness doctrine was an effort to create a regulatory moat around a political incumbent who possessed an advantage in a relatively new mass medium. The Mayflower doctrine masked raw Democratic gamesmanship in the guise of democratic intent.

Mayflower was replaced by the fairness doctrine, the FCC’s second attempt at imposing order on broadcast speech. First expressed in 1949, the fairness doctrine enjoined broadcast stations to prioritize “fairness” and “balance” when selecting programming. Stations could air opinionated coverage on politics and current events but should do so in a way that represented “the needs and interests of the many” and not just the views of the station owner. The FCC would ultimately succeed in this endeavor to roughly the same extent as Fox News would a half century later when promising to be “fair and balanced” in its news coverage; that is, hardly at all.

Regarding the fairness doctrine, Carr acknowledges its “fraught history” as part of a broader discussion about the inherent “amorphousness” of the public interest standard. Whereas libertarians see the public interest standard as “vague to the point of vacuousness, providing neither guidance nor constraint,” Carr sees it as a supple instrument for changing regulations to match changes in public opinion. In this regard, “the public interest standard is more than just a legal principle. It is an ethical principle” that “assures the people’s right to have a say in the workings of the institutions and systems that shape their lives — a right fundamental to a true democracy and a just society.”

Yet even the briefest unpacking of the history of the fairness doctrine contradicts such an optimistic interpretation of the broader public interest standard. To say that the fairness doctrine was merely “fraught” is an understatement in the extreme, and little about the doctrine’s deployment was either ethical, legal, or just. Indeed, Carr appears unaware of the central role that the fairness doctrine played in one of the most successful episodes of government censorship in U.S. history — a story I tell in The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement (2020). Carr might not call for the revival of the fairness doctrine, but his utter failure to grapple with so transparent an abuse of the public interest standard suggests a fundamental disregard of the potential risks of applying it to the Internet.

The rise of network television during the 1950s created a window for independent, non-network station ownership, which comprised an outright majority of stations by the middle of the decade. These cash-strapped independent stations aired the kinds of overtly political broadcasters previously eschewed by the networks, allowing a dozen conservative programs to cobble together informal, syndicated networks of a hundred or more stations nationwide by the early 1960s. The most successful of these “Radio Right” hosts, a fundamentalist New Jersey preacher named Carl McIntire, went from airing on just two stations in 1956 to at least four hundred and sixty stations by 1964. McIntire had an estimated audience of twenty million people; for the sake of comparison, that is roughly the same as Rush Limbaugh had at his peak forty years later.

The Kennedy administration scrambled to do something about this rising political threat, and settled on a two-pronged approach of targeted IRS audits and selective enforcement of the FCC’s fairness doctrine. In an echo of FDR’s “blow torch,” JFK told his new FCC chairman in May 1963, “It is important that stations be kept fair.” The FCC responded by announcing an enforcement push, creating new supplementary rules like the Cullman doctrine, and working directly with allied political interest groups to crack down on unbalanced conservative (and only conservative) radio speech.

The Democratic National Committee continued the fairness doctrine censorship campaign under the Lyndon Johnson administration. During the 1964 election season, a DNC team of political operatives used the threat of fairness doctrine complaints to intimidate stations that aired conservative programs critical of the president. They secured hundreds of hours of free “balanced” airtime in the crucial final weeks before the election. But even more important, as the lead operative reported back to DNC headquarters, “was the effectiveness of this operation in inhibiting the political activity of these Right Wing broadcasts.”

After the 1964 election, the censorship campaign continued under the auspices of allied interest groups. By the end of the decade, hundreds of radio station owners had de-platformed right-wing radio hosts because of worries about fairness doctrine complaints, the cost of regulatory compliance, and jawboning pressure from an antipathetic Democratic supermajority in both chambers of Congress.

Carr wishes for public interest regulations that promote “true democracy and a just society,” but the fairness doctrine is the preeminent example of how the public interest standard could be deployed to undermine democracy and foment injustice. It was a weapon in the hands of a series of unprincipled executives, from Kennedy through Nixon, each willing to abuse the substantial powers granted to their appointees under the public interest standard in order to silence political dissent. So much for the public interest standard as “ethical principle”!

To be fair, Carr is not the first idealistic reformer to have the wool pulled over his eyes regarding the fairness doctrine. He mentions the U.S. Supreme Court’s 1969 Red Lion decision, quoting Justice Byron White writing for the unanimous court, “The right of free speech of a broadcaster … does not embrace a right to snuff out the free speech of others.” But what the justices could not know, and what Carr clearly does not, is that Red Lion unintentionally enshrined just such a right, because Red Lion was the product of a long con.

The version of events presented to the court was that a few weeks after the 1964 election a conservative broadcaster named Billy James Hargis had called journalist Fred Cook a communist stooge and accused him of writing a book, Barry Goldwater: Extremist on the Right, to “smear and destroy” the candidate. Hargis’s program was carried by station WGCB in little Red Lion, Pennsylvania, owned by a dedicated conservative and fundamentalist minister named John Norris.

Cook demanded that radio stations airing Hargis’s personal attack give him free airtime for a response under the fairness and Cullman doctrines. The FCC endorsed Cook’s demand, but, while most stations that carried Hargis’s attack complied, Norris refused, claiming that the fairness doctrine violated the First Amendment by making station owners fear “subsequent punishment” for their choice of programming.

The court dismissed Norris’s claim and validated the fairness doctrine, a ruling that theoretically remains an active precedent today. (The end of the fairness doctrine would come at the hands of the FCC in 1987, not via legal challenge.) However, Justice White did acknowledge that if Norris were correct, if there were any evidence of “self-censorship,” it would “indeed be a serious matter.” But White had been reassured by the FCC’s lawyers that any self-censorship was “at best speculative” and that “the fairness doctrine in the past has had no such overall effect.” It was the equivalent of asking a fox if a nearby chicken coop was in good order.

The Supreme Court was woefully ill-informed about the reality of the case. The Court did not know that Fred Cook’s critical biography of Barry Goldwater had been secretly financed and promoted by an ad agency hired by the Democratic National Committee. The Court did not know that Cook’s retaliation against Billy James Hargis was financially and logistically supported by the same team of Democratic Party operatives that had deployed the fairness doctrine to extract airtime for the Lyndon Johnson campaign earlier that year. (Cook had written the team leader to say that he would “dearly love to break these bastards down.”) And the Court did not know that it had been hoodwinked into validating a near decade-long, coordinated campaign to silence conservative broadcasters and extract partisan electoral advantage.

Carr is correct that we ought to look to the history of broadcast regulation at a time when lawmakers are considering sweeping regulations of online speech. But this history, upon closer examination, is a cautionary tale that ought to warn us against the very policies Carr recommends.

Regulating the Internet under the public interest standard of our broadcasting regime would be a disaster for free speech. Carr admits the public interest standard’s “amorphousness” and “vagueness” while defending it as a democratic necessity. Yet it was precisely the public interest standard’s shapelessness that routinely generated clear and present dangers to American democracy.

As a thought experiment, consider an alternate universe where Congress and the courts in the 1990s had decided to regulate the Internet as a form of broadcasting rather than running with the print metaphor adopted by its inventors (“e-mails,” “bulletin boards,” and so forth.) What might have happened during the polarized politics of the 2010s if a federal agency filled with presidential appointees had been tasked with an ambiguous mandate to police online hate speech and misinformation? After all, one person’s “fake news” is another’s truth-telling journalism. It is not hard to imagine the ways such a mandate — ostensibly operating in the public interest and according to democratic norms — could be manipulated to advance partisan interests and suppress political dissent.

That is precisely what happened in broadcasting. Every decade from the 1930s through the 1970s was pockmarked with significant abuses of the ambiguous powers that had been granted to a partisanized government agency under the direction of multiple unprincipled executives from both political parties. It would be naïve to expect a different outcome today.

It also surprises to find such an appeal in a conservative journal, given the frequency with which the public interest standard was deployed to silence conservative media. When Franklin Delano Roosevelt wanted to keep conservative newspapermen from buying radio stations, he turned to the public interest standard. When John F. Kennedy had a Radio Right problem, he turned to the public interest standard. When Lyndon Johnson wanted to silence Goldwater supporters, he turned to the public interest standard. Whether out of First Amendment principle or pragmatic self-interest, conservatives should think twice before embracing a regulatory weapon used so effectively to punish conservatives in the past.

I cannot fault Carr’s desire for a saner and more equitable Internet that would “bring the spirit of the common good back.” Unfortunately, salutary intent is no guarantee of salutary policy.