The Fairness Doctrine, resurrected from the Pit

Senator Jeff Bingaman (D-NM) has finally made public intentions toward a plan whose existence many Democrats have been trying to deny for years: bringing back that speech-suppressing abomination, the Fairness Doctrine. (Links here and here, and with audio here and here).

More on the Doctrine’s history, why it’s a dangerous assault on the Constitution, and why Democrats like Bingaman love it so much and want it back so badly, below the break.

The Fairness Doctrine was first introduced as an informal, case-by-case FCC policy in 1949, and parts were incorporated into formal FCC regulations in 1967. It required that discussion of controversial issues of the time be presented with contrasting views (though it didn’t require equal time for all contrasting views).

The Doctrine was first challenged in the High Court in 1969, when an anti-Goldwater author sued a radio station for broadcasting attacks on his work, saying the Doctrine required them to provide him with equal time to respond. The radio station argued that such an interpretation of the Fairness Doctrine represented an unconstitutional infringement on free speech.  The lawsuit went to the Supreme Court, which ruled 8-0 that the Doctrine did not violate the First Amendment when applied to radio broadcasts.

The Court ruled five years later — again, unanimously — that the Doctrine was indeed unconstitutional when applied to newspapers, since there is an unlimited number of outlets in the press. If you think a newspaper is shorting your viewpoint, you can start your own (which isn’t the case with radio frequencies).

Ten years after that, in 1984, the Court ruled, in a 5-4 decision this time, that the section of the Doctrine forbidding “editorializing” by non-profit stations receiving federal CPB funding was unconstitutional, though the court did not express an opinion on providing equal time for opposing viewpoints. (Interestingly, arguing for the FCC in favor of the Doctrine’s constitutionality on this point was Samuel Alito, now Associate Justice of the Supreme Court, appointed by George W. Bush.)

In that 1984 decision, Chief Justice William Brennan (writing for the Court) brought up the fact that the FCC was considering repealing the Doctrine anyway, out of concerns that it may have a “chilling effect” on political speech [Glad it finally occurred to somebody. — Ed.]. Warren wrote:

Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion [the original 1969 decision finding the Doctrine constitutional], however, were it to be shown by the Commission that the fairness doctrine “[has] the net effect or reducing rather than enhancing” speech, we would then be forced to reconsider the constitutional basis of our decision in that case.

In other words, the Court was still open to reconsidering the Doctrine’s constitutionality, especially given that advances in technology since 1969 had widened, and were still widening, the number of options the holder of any given viewpoint would have in finding a medium in which to voice it.  The broadcast spectrum was not so limited anymore.

Finally, in 1985, the FCC (under new management by Mark Fowler, a Reagan appointee) began to repeal parts of the Doctrine, saying it violated the First Amendment after all. Two subsequent D.C. Appeals Court rulings the next year relaxed the FCC’s responsibility to enforce it. Ultimately, the FCC unanimously abolished the Doctrine completely in mid-1987, saying:

The intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters … [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists,

What the Court had failed to anticipate, in its Red Lion decision and subsequently, is that broadcast stations can’t afford the Doctrine. For one thing, the arbiter of balance is the FCC, a political body all its own. For another, after the Doctrine was given a SCOTUS imprimatur, broadcasters quickly grew gun-shy about providing political commentary; they were petrified that if some crank convinced himself that some sentence uttered into a microphone demanded a response in kind, they would be hauled into court. Given that the broadcasters only had a limited number of hours to assign to politically-oriented broadcasting and couldn’t humor every weirdo with an axe to grind and a lawyer to grind it, soon they began to abandon political programming altogether, deciding it was more trouble than it was worth.

Supreme Court, meet the “chilling effect.”

Congressional Democrats have attempted numerous times to reanimate this particular reeking corpse. A few months before the FCC abolished it, Congress attempted to write the Doctrine into law, but then-President Reagan made short work of it with his veto pen. In 1991, then-President George H.W. Bush issued a similar veto after another Democratic attempt to codify this monster. Rep. Maurice Hinchey (D-NY) has had a bill in the works for some time mandating a return of the Fairness Doctrine. Prominent Democrats such as Nancy Pelosi (D-CA), Dick Durbin (D-IL), and John Kerry (D-MA) have openly advocated for its return. (For the Republicans’ part, Sen. Norm Coleman of Minnesota recently introduced an amendment to a defense bill forbidding the FCC from “using any funds to adopt a fairness rule,” but it was blocked on jurisdictional grounds. Rep. Mike Pence proposed a permanent moratorium on the Doctrine, but it was denied introduction by Speaker Pelosi.)

However, their motives have nothing to do with fairness, especially at a time like today when access to broadcast airtime is easier than at any other time in history, with the options presented by cable TV, satellite radio, and the Internet. No, the reason they want to reintroduce the Fairness Doctrine is because of talk radio.

Talk radio has been a bonanza for conservative opinion journalism and conservative philosophy in general since the late 1980s when the Doctrine was killed, and all of it has come about with the help of pure market forces. Left-leaning talk programs have tried mightily to make a dent in the conservatives’ market share on the radio, but the interest just isn’t there; they can’t compete on a level playing field. Trying to prop up sputtering non-starters like Air America through success in the free market is just too hard.

Much simpler to pass a law giving them state-mandated time on shows that already have an actual audience like Rush Limbaugh, Sean Hannity, and Laura Ingraham. Of course, they’d be just as happy to shut those successful shows down entirely when it becomes impossible for them to tailor their schedules to the government’s demands and hold onto their listeners at the same time. Sure, such a scorched-earth strategy would take Air America with it, but that’s not much of a loss, especially when you consider the opposition’s losses in comparison.

If the Fairness Doctrine is reinstated, even limited to radio broadcasts, it will return in a much more powerful position. Access to radio, especially with the advent of satellite radio (which is still in its infancy), is incredibly easy for those with opposing viewpoints. If the breadth of access in today’s radio world isn’t enough, then that bar can be readjusted for any medium, including TV and the Internet. If Bingaman and his co-conspirators are successful in carving the Doctrine into legal stone, then those of us in opposition would do well to smother it in the crib by taking advantage of the open-ended nature of Chief Justice Brennan’s ruling, and showing the Court how technology has finally revealed the Doctrine as the nasty legal cudgel it always was.

(By the way, I realize that Barack Obama said in June on the campaign trail that he doesn’t favor codifying the Fairness Doctrine. I’m skeptical. For one thing, he hasn’t given an answer as to what he would do if Congress passed it and sent it to his desk; an aide to Obama, true to form, has described the issue as a “distraction.” For another thing, there is no way that the Democrats would be making such audible rumblings about something as controversial and polarizing as the Fairness Doctrine unless they knew something about Obama’s intentions that he’s not letting on to the rest of us. Why rock the boat unless you know you have a life raft?)

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One thought on “The Fairness Doctrine, resurrected from the Pit

  1. Pingback: The Buzz » Blog Archive » The Fairness Doctrine, Resurrected From the Pit

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