Vanderbilt Law Review
private standards and certification, fairness doctrine, private governance
Communications Law | Law
This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new media firms. A growing literature demonstrates how private governance initiatives can perform the functions of government in the environmental, labor, gun control, animal welfare, and fair trade areas. This Essay argues that private governance initiatives such as the new private fairness doctrine can also bolster the social checks and balances that support the processes of democratic governance. Any intervention into the flow of information creates risks, but so does inaction, and the private fairness doctrine holds out the possibility of improving the information available for public discourse while limiting the risks of government intervention. In the long term, the concept of private governance can also stimulate creative thinking on interventions to improve other core democratic processes, including campaign finance, voting, ballot security, and others.
Michael P. Vandenbergh,
Social Checks and Balances: A Private Fairness Doctrine, 73 Vanderbilt Law Review. 811
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1145