Fairness Doctrine

The year 1949 marked a time when the hubris in the competency government was near its peak, especially after the successful conclusion one of the largest and most successful government enterprises of all, World War II. At that time the Federal Communications Commission issued the Fairness Doctrine, trusting in the government’s ability to arbitrate fairness. The doctrine required broadcasters to provide all sides of a controversial issues in a manner that the FCC considered fair. The fundamental rationale for the doctrine was that the broadcast spectrum is a limited public resource and should be used for the public good. As a practical matter, with the club of the Fairness Doctrine over their heads and their licenses at risk, most broadcasters simply  avoided political controversy. The risks were too great.

In 1969 Red Lion Broadcasting v. FCC case, the Supreme Court upheld the Fairness Doctrine based on the limited number of stations, but hinted that if the doctrine were used to suppress speech, the doctrine could be re-evaluated. By 1984, FCC v. League of Women Voters, the Court concluded that the scarcity  argument was loosing its saliency. In this environment, the FCC backed off a the Fairness Doctrine altogether in 1987.

The period since has experienced an explosion in public affairs related broadcasting. For a variety of reasons, Conservatives have been particularly successful on talk radio, while one could easily make the case that broadcast television news is provided from a liberal perspective. Indeed, many political operatives view talk radio as the major source of contemporary Conservative thought.

Any arguments about scarcity have long ago been overwhelmed by modern technology. Not only has there been significant growth in the number of radio stations, but radio information is beamed from satellite increasing available bandwidth. In an age, when one can receive “netcasts” over the cell phone networks on smart phones or assemble one’s own webpage, their is virtually no limit on the space available for political discourse.

The First Amendment is  unequivocal. “Congress shall make no law …  abridging the freedom of speech, or of the press…” It is very likely that the imposition of the Fairness Doctrine with the current state of technology would loose a constitutional challenge.

What is interesting is  the liberal (they would like to say “progressive”) community’s instinctive reaction to wield political power by suppressing inconvenient free speech. House Speaker Nancy Pelosi has said that she personally favors the revival of the Fairness Doctrine.  She has blocked votes that would prohibit the FCC from imposing the Fairness Doctrine. So much for the free speech movement of San Francisco. It is hard to reconcile the First Amendment with the ethos of using the government to ration speech. Such an effort would be rightly rejected in the case of newspapers, where scarcity is a graver than in the broadcast media.

To his credit President Barack Obama, through his press secretary Michael Ortiz, has said the he “does not support reimposing the Fairness Doctrine on broadcasters.” Unfortunately, the reasoning provided is not reassuring. Ortiz explained that the Fairness Doctrine debate it distracts from among other things like support for public broadcasting and increasing minority ownership media outlets. It does not seem that opposition to the Fairness Doctrine arises from principle, but from tactical calculation. For now, perhaps the pressure to re-instate the Fairness Doctrine will ease. It would have been more heartening if Obama said he would actively oppose the re-institution of the Fairness Doctrine. The good news is that time is one the side of free speech. As communications technology improves and becomes even more ubiquitous, the Fairness Doctrine becomes not only less justifiable, but far more difficult to implement.

Leave a Reply

You must be logged in to post a comment.