Back to Muzak? Congress and the Un-Fairness Doctrine

The Heritage Foundation ^ | May 23, 2007 | James L. Gattuso

[Delacon]

 

"Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

--Bill Ruder, Democratic campaign consultant and Assistant Secretary of Commerce, Kennedy Administration[1]

"The main thing is the Post is going to have damnable, damnable problems out of [its Watergate coverage]. They have a television station...and they are going to have to get it renewed."

--President Richard Nixon[2]

Should the federal government mandate "fairness" in broadcasting? "Yes," say some Members of Congress, including Speaker of the House Nancy Pelosi, who reportedly said this week that House leaders would "aggressively pursue" legislation to reinstate the "Fairness Doctrine."[3] Until it was abolished in 1987, this Federal Communications Commission rule required broadcasters to air all sides of controversial issues.

At first glance, the rule may sound innocuous. Fairness is, after all, a basic American value. But as a matter of principle, any such government controls on media content is anathema to constitutional guarantees of free speech. And in practice, the so-called fairness doctrine was deeply unfair.

Dulling Down Broadcasting

Rather than foster full and fair discussion of public issues, the real effect of the Fairness Doctrine was to discourage discussion of controversial issues of any kind. It's no coincidence that such media as talk radio--virtually non-existent while the rule was in place--flowered after its repeal. Rather than the vast wasteland of bland muzak-like discussion it was before, broadcasting-- especially radio--has become a platform for vibrant and controversial debate on countless issues.

The Fairness Doctrine was developed by the FCC over a long period, based on its broad authority under the Communications Act to regulate the airwaves. The rule was first articulated in 1949, when television was in its infancy and radio meant a handful of AM stations in each market. In its final form, the rule required broadcasters to "afford reasonable opportunity for discussion of contrasting points of view on controversial matters of public importance."[4]

The vagueness of the standard left quite a bit of uncertainty. What is a "reasonable" opportunity? How many "contrasting" views? Station managers whose programming ventured too far into controversial subjects could quite easily find themselves subject to a fairness doctrine challenge. And even if the challenge ultimately failed, the cost of defending against it could be substantial. So the safe route for most was to stay far away from controversy. As a result, policy discussion on the airwaves for decades was, for the most part, as bland as cottage cheese.

Political Abuse

This "chilling" effect was exacerbated by political abuse of the system. Politicians of both parties used the doctrine to further their political ends. Political strategists for Kennedy and Johnson, for example, consciously used the Fairness Doctrine to cow political opponents. According to statements from party activists, there was an explicit strategy to raise the cost of critical programming, and thus get it dropped entirely. "Perhaps...our tactics were too aggressive," one party operative is quoted as saying, "but we were up against ultra-right preachers who were saying vicious things about Kennedy and Johnson."[5]

The political use of the Fairness Doctrine was brought to new heights by President Richard Nixon. According to Jesse Walker of Reason magazine, "private activists directed by the Republican National Committee regularly filed Fairness Doctrine challenges against stations whose reporting angered the White House."[6]

Demise of the Fairness Doctrine

The constitutionality of the Fairness Doctrine was challenged in the 1969 case Red Lion v. FCC[7], involving a religious broadcaster who was fined by the FCC for not providing a person criticized on the air an opportunity to reply. The Supreme Court upheld the rule, reasoning that because broadcast frequencies were scarce, the government may intervene in broadcast media in ways that would not be allowed toward traditional media, such as newspapers.

The decision in Red Lion, however, has been subject to intense criticism.[8]And in 1987, the FCC rescinded the Fairness Doctrine, finding it to be contrary to the Constitution as well as bad policy.[9] In its landmark decision, the Commission wrote:

We believe that the role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists.[10]

The FCC's decision to rescind the doctrine was later upheld by a federal appeals court. In so doing, however, the court did not pass judgment on the constitutionality of the rule and instead relied on the FCC's policy findings that it did not serve the public interest.[11]

Red Lion is still formally in place. But in years since, the basic "spectrum scarcity" rationale of Red Lion (and thus the constitutionality of fairness rules) has become ever weaker. Not only have new broadcast frequencies--such as the UHF television and FM radio bands--been put into use, but entirely new systems such as cable TV and satellite radio have been created, offering consumers hundreds of channels when before they only had a handful.[12] And the Internet has made notions of scarcity almost meaningless.[13]

At the same time, broadcasters--especially radio broadcasters--became much more willing to air controversial points of view, in large part because of the repeal of the FCC's fairness rule. Most notably, talk radio, which had been a relatively rare format, exploded in scope and popularity. In 1990, there were some 400 stations with a talk show format nationwide. By 2006, there were more than 1,400 stations devoted entirely to talk formats.[14] Programming shed its cottage cheese-like character, as controversial new hosts, such as Rush Limbaugh, gained airtime and the freedom to express strong opinions and views without fear of regulatory reprisal. According to the Project for Excellence in Journalism:

With the [Fairness] Doctrine's repeal, radio shows could become more one-sided, more free-wheeling, ideological and political. And it didn't take long. One of the first to gain popularity under the new rules was a new voice out of California named Rush Limbaugh. Within a year or two of the new rules, Limbaugh's provocative denunciations of Democrats became a phenomenon. Stations quickly began to pick up his syndicated show, and other conservative names followed his lead. Being controversial seemed a plus.[15]

Not all the changes, of course, were due to the Fairness Doctrine repeal. Other factors, such as the rise of FM radio, were at work. But, as documented by economists Thomas Hazlett and David W. Sosa, the regulatory change had a substantial causal effect.[16]

Government-Enforced "Balance"

Many supporters of the Fairness Doctrine are concerned about this explosion of information because they see it as the wrong kind of information. Many are frankly concerned about the amount of "conservative" programming, especially in talk radio, and would like to see a different balance.

Certainly, conservative-oriented talk radio has been more successful than left-leaning radio programming. But broadcasting is only one small part of today's media universe, which includes not just radio and television broadcasting but print, cable, and Internet sources. Conservatives have had no lock on opportunities, even in radio. Programming with a liberal bent, from Mario Cuomo's show to Air America, has been given opportunities and will get more.

Moreover, arguments that the Fairness Doctrine is needed because certain types of media are too conservative, too negative, too partisan, or too anything actually strengthen the case against the regulation. Any law that is targeted at media based on the content of what is being said raises greater constitutional concerns and is much less likely to pass constitutional muster--and for good reason. Regulating speech in order to alter its content is exactly the sort of meddling that the First Amendment is meant to prohibit. It is simply not the job of politicians to "correct" the mix of opinions being expressed in the marketplace of ideas, even if--and especially if--they disagree with those opinions.

Conclusion

The Federal Communications Commission did the right thing 20 years ago in throwing this unnecessary, counter-productive, and unwise restriction on speech into the regulatory dustbin. It should be left there. To do otherwise would be dangerous and unconstitutional.

James Gattuso is Senior Research Fellow in Regulatory Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

[Delacon]

 

PETITION TO BLOCK CONGRESSIONAL
ATTACKS ON FREEDOM OF SPEECH AND PRESS

To: U.S. Congress, President of the United States, Supreme Court of the United States

Whereas, the First Amendment of the U.S. Constitution clearly states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances";

Whereas, members of Congress are recently on record saying they want to re-impose the so-called "Fairness Doctrine" on U.S. broadcasters, or else accomplish the same goal of censoring talk radio by other means, and thereby establish government and quasi-government watchdogs as the arbiters of "fairness" rather than the free and open marketplace of ideas;

Whereas, the U.S. experimented with the so-called "Fairness Doctrine" for 38 years - from 1949 through 1987 - during which time it was repeatedly used by presidents and other political leaders to muzzle dissent and criticism;

Whereas, the abandonment of the so-called "Fairness Doctrine" in 1987, thanks to President Ronald Reagan, resulted in an unprecedented explosion of new and diverse voices and political speech - starting with Rush Limbaugh - that revitalized the AM radio band and provided Americans with a multitude of alternative viewpoints;

Whereas, talk radio is one of the most crucial components of the free press in America, and is single-handedly responsible for informing tens of millions of Americans about what their government leaders are doing;

Whereas, it is a wholly un-American idea that government should be the watchdog of the press and a policeman of speech, as opposed to the uniquely American ideal of a free people and a free press being the vigilant watchdogs of government;

Whereas, the so-called "Fairness Doctrine" - either under that name, or using a new name and even more devious methods - represents a frontal assault on the First Amendment, and its re-imposition would constitute nothing more nor less than the crippling of America's robust, unfettered, free press:

 

                                SIGN THE PETITION at http://www.wnd.com/index.php?pageId=87882

 

Freepmail me if you want to join my fairness doctrine ping list.

[Delacon]

ping

[RegulatorCountry]

Back to Muzak? Naah, they’ve gone bust. Seriously. Headquartered in Rock Hill, SC, suburban Charlotte.

[Delacon]

“Back to Muzak? Naah, they’ve gone bust. Seriously. Headquartered in Rock Hill, SC, suburban Charlotte.”

LOL. Yes, well the article is dated but the issue is not.

[WesternPacific]

What is the problem. If conservative radio or TV has to provide a liberal counterpoint, why not do what the liberal media does now. Find the dumbest of the dumb liberal counterpoint and set him between three or four high powered conservatives and let him have at it. Kind of the "View" in reverse.

[exist]

Well, even if Obama succeeds in censoring talk radio-- at least MSNBC is fair.

[Post Toasties]

We believe that the role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists.

Well, if the 'Fairness Doctrine' is reinstated for broadcasting, it should apply to television and print media as well as radio. That means explicitly conservative editorial content should be given equal exposure to the acknowledged liberal MSM programming each and every day in every newspaper and every news show.

[Yogafist]

Rush will be able to add another feather to his cap, when he single handedly saves satellite radio.

[Myrddin]

Perhaps we need an Alinsky style approach. Select ONE of the major networks and pound on it mercilessly with legal attacks to force "balance". Pound it into the ground. Do not dilute the effort with other targets until the initial one is thoroughly bankrupt. Try to find a very financially weak opponent shorten the time required.

[CORedneck]

Muzak, I remembered at one time Ted Nugent wanted to buy them to put them out of business. On talk shows, I remembered back in the 70’s and 80’s, they were very dull and bland. I remembered back in Indiana (both South Bend and Indianapolis) there was something called the Jim Girard show. It was very boring and bland. Also there was the Bob Braun show as well, also dull and boring. I don’t want to return to those days. I remembered shows like Morton Downey Jr which was hilarious to watch. I was mad when the local TV channel took it off the air and replaced it with some boring show.

[Reaganwuzthebest]

If they try to legislate their communist agenda it still has to get past the Senate where the GOP could technically stop it. That is if Snowe, Collins, and Specter don’t reach across the aisle again.

[conservatism_IS_compassion]

Regulating speech in order to alter its content is exactly the sort of meddling that the First Amendment is meant to prohibit. It is simply not the job of politicians to "correct" the mix of opinions being expressed in the marketplace of ideas, even if--and especially if--they disagree with those opinions.

Very well put, and a fine article. I also like the reference to the fatuous nature of the "scarcity of bandwidth" argument - which apparently was a red herring even when it was first promulgated. The FCC wanted there to be a scarcity of bandwidth, so it arranged for one to exist. If Congress wants more diversity of programming, it has a remedy - increase the bandwidth allotted to broadcasting.