A fairness doctrine for commerce?

In the late 1920s, the Federal Radio Commission promulgated something that came to be called the fairness doctrine. The concept was based on the fact that the radio broadcast spectrum is limited in capacity. The federal government, asserting ownership of the airwaves, apportioned the spectrum to various radio stations and networks. In exchange, the radio broadcasters were required to perform a public function: to wit, ensure that both sides of political debates were represented in their programming.

The radio commission was folded into the Federal Communications Commission in the 1930s, and the FCC extended its purview to television as that technology developed. The television spectrum was even more limited than the radio spectrum, and the fairness doctrine was extrapolated to that realm.

The fairness doctrine remained in force through the golden age of television news in the 1960s, when anchormen Walter Cronkite, David Brinkley and Frank Reynolds stuck to the center lane of political reporting, and into the 1970s. Near the end of the latter decade, the doctrine came under challenge from two directions.

The first was ideological. Milton Friedman and other conservatives convinced Jimmy Carter and then Ronald Reagan to deregulate all manner of economic activities: trucking, rail transport, air travel. The broadcasting of news came under similar scrutiny.

The second front, the technological one, was the more important. The development of cable television eliminated constraints on how many television stations and networks there could be. Moreover, while the airwaves were public, the cableways were privately owned. The original concept of fairness, based on rationing a public good, no longer applied. The fairness doctrine was never applied to cable television, and it was eliminated in 1987.

Yet the underlying principle might still have use, albeit in fields other than communication. A few weeks ago the Supreme Court heard oral arguments in a case involving a wedding website designer who didn’t want to be required to create websites for gay couples. The case brought out the heavy artillery of the First Amendment, the Fourteenth Amendment and numerous statutes and precedents. Both sides contended that there were deep principles at risk.

Indeed there were, if one so insisted. People should not be required to choose between their religious beliefs and their livelihoods. People should not be discriminated against on account of their sexual orientation. Understandably, defenders of religious rights and defenders of gay rights each sought a definitive judgment on behalf of their cause.

The Supreme Court won't deliver its until next spring. No one has yet leaked a draft opinion and so it’s hard to tell how the court will rule. If a majority chooses to go big and make a sweeping statement of principle, a compromise seems unlikely. This court does like to go big.

But something more modest—something based on the fairness doctrine—might be more practical and realistic, and fairer. If designers of wedding sites were few in number, and especially if that number was limited by technological constraint, as the numbers of radio and television stations were, then a clash between the two principles in the wedding case would be unavoidable.

But there are many, many web designers, and nothing constrains their multiplication. A couple whose business was declined by one web designer would have no difficulty finding other web designers happy to accept their business. In this field, geography is no barrier; the web designer might be half a continent or half a world away. The couple would get their web site, and the designer’s religious beliefs wouldn’t be offended.

Of course, this outcome wouldn’t satisfy those who want a definitive statement of right. But such a statement would damage either religious rights or gay rights. That’s what happens when rights are pitted against each other. Which is why such pitting should be avoided wherever possible.

One can easily imagine cases where the fairness doctrine would indicate a different answer. Suppose a gay couple wants to buy a house and needs a mortgage. In any given community, there might be but a handful of lenders. A strong argument could be made that the banks there shouldn’t be allowed to discriminate among customers except on financial grounds. Anyway, banks, unlike web designers, have to pass muster with regulators on numerous other grounds; their charters might easily include non-discrimination clauses—and in fact already do.

Needless to say, there is a large gray area between a lone web designer and a federally chartered bank. How would business operators and customers know which side of the fairness doctrine applied to them?

This would be an issue, to be sure. But most of our lives are lived in gray areas between principles. Most of jurisprudence, in fact, deals with gray-area behavior. When does a successful business become a monopoly? When does free speech become libel?

The reason the wedding site case came before the Supreme Court is that each of the opposing sides wanted a broad win for its cause. It’s not about the website.

But it should be.