Fairness Doctrine As Political Intimidation

In preparation for the 2008 elections, Democrats in Congress are trying to intimidate radio and TV broadcasters into including more Democrat views into their programs.

They are trying to resurrect an antiquated Federal Communications Commission regulation, the Fairness Doctrine, to require that opposing sides be presented to arguments. The Fairness Doctrine emerged at a time of very few radio, then TV, stations. Although in 1969 the Supreme Court upheld its constitutionality, in 1974 the Supreme Court did conclude the Doctrine "inescapably dampens the vigor and limits the variety of public debate", and in 1984 that a scarcity of airwaves argument was by then flawed as a multitude of stations emerged and were expected. In 1985 the FCC ceased to support a Fairness Doctrine, and formally scrapped it in 1987. The number of radio stations has doubled since 1970, the former three networks’ TV stations are now challenged by over 500 alternatives, and the Internet carries a wide-diversity of views.

At root of the current push by Democrats is, as conservative columnist Geoge Will observed, “The illiberals' transparent, and often proclaimed, objective is to silence talk radio.” Why? “By trying to again empower the government to regulate broadcasting, illiberals reveal their lack of confidence in their ability to compete in the marketplace of ideas, and their disdain for consumer sovereignty—and hence for the public.”

There’s little likelihood of the Democrats succeeding in resurrecting the Fairness Doctrine, over the objections of station owners and civil libertarians, not to mention conservatives who benefit from talk radio. But, that’s not Democrats’ expectation. They expect to intimidate timid station owners into presenting more Democrat views, regardless of consumer preferences, and to reduce the presentation of conservative views where they are predominant in talk radio.

Both the Kennedy and Nixon administrations used the Fairness Doctrine for intimidation:

Telecommunications scholar Thomas W. Hazlett notes that under the Nixon Administration, "License harassment of stations considered unfriendly to the Administration became a regular item on the agenda at White House policy meetings." (Thomas W. Hazlett, "The Fairness Doctrine and the First Amendment," The Public Interest, Summer 1989, p. 105.) As one former Kennedy Administration official, Bill Ruder, has said, "We had a massive strategy to use the fairness doctrine to challenge and harass the right-wing broadcasters, and hope the challenge would be so costly to them that they would be inhibited and decide it was too expensive to continue." (Tony Snow, "Return of the Fairness Demon," The Washington Times, September 5, 1993, p. B3.)

Newsweek’s Washington bureau chief and political editor, Howard Fineman, writes today:

The goal? To level the media playing field [in radio talk shows] in time for the 2008 election.

Jay Ambrose, former director of editorial policy for the Scripps Howard newspapers, likens the Democrats’ Fairness Doctrine efforts to the McCain-Feingold restrictions on political campaigning:

When Congress passed this law previously upheld by the court, its sponsors called it reform, but others note it was something else instead: a means of cutting off discourse that the politicians themselves find both unpleasant and career-threatening.

Campaign law counsel to the House and Senate Democrats, Bob Bauer, similarly raised the issue of the Fairness Doctrine’s relation to McCain-Feingold:

It seems reasonable, however, to take note of the mounting revolt against the assumption that some types of corporations—"media corporations"—have the latitude to crusade in favor of specific candidates and causes when the same opportunity, sought by other corporations or by associations or individuals, is highly restricted and State-supervised…. these laws are related: they represent choices made by the State—"constitutive choices," as Paul Starr has referred to them—which are fundamentally political nature…

I’ve featured Bauer’s views several times in favor of the virtues of free speech, for example here:

[B]ecause how citizens view the government’s treatment of speech—the perceived relationship of the rulers to the ruled—is heavy with consequence for the credibility of representative institutions. Any problem that develops here is not waved away by questioning motives or by replying with learned constitutional and legal expositions. It is only made that much worse.

Conservatives criticize the MSM, network TV, metropolitan newspapers and major wire services, as liberal and often incompetent. Yet, I’ve never heard a conservative calling for the government to regulate what the MSM can broadcast or publish, nor have I heard of Republican organizations threatening lawsuits against them to intimidate changes. There’s a respect for traditional liberal values of competing with ideas, rather than imposing government dictates.

That’s a key distinction to keep in mind. George Will properly labels the Democrats upside down concept of fairness “illiberal.”