Fighting Fair

Wednesday, July 1, 2009

The effort by Democrats in both houses of Congress to resurrect broadcasting’s Fairness Doctrine after a twenty-two-year hiatus suggests that constitutional values are fragile once the lure of partisan advantage comes into play. Moreover, the relative silence of the mainstream media on the issue implies that many are willing to tolerate some erosion of First Amendment guarantees as the price for taking right-wing talk-radio gladiators down a peg.

The doctrine has a checkered past. Proclaimed by the Federal Communications Commission in 1949, it required broadcast licensees to cover important controversial issues and provide both sides with reasonable opportunities to air their views. Further, the FCC proclaimed a “right of reply” for anyone suffering a personal attack.

In the 1967 case Red Lion Broadcasting Co. v. FCC, involving a writer’s use of the rule to reply to the attack of a right-wing minister, the Supreme Court upheld the constitutionality of the Fairness Doctrine. The court declared that the need to allocate scarce space on the broadcast spectrum gave the commission the power to regulate broadcasting primarily in the public interest, thus trumping the First Amendment claims of the licensee.

Seven years later, the court underlined the distinction between the print media and the more restrictive world of broadcasting, holding unanimously in Miami Herald Publishing Co. v. Tornillo that a state-imposed right of reply to personal attack in print violated the First Amendment. “Government- enforced right of access inescapably dampens the vigor and limits the variety of public debate,” wrote Chief Justice Warren E. Burger.

Despite its judicial ratification, all was not well with the Fairness Doctrine. For one thing, broadcasters disliked having their editorial judgments second-guessed by commission bureaucrats, and licensees fretted about the consequences of guessing incorrectly on whether particular circumstances mandated giving time for opposing advocacy or rebuttal. The result, as the commission itself later concluded, was a shying away from public-affairs coverage, precisely the reverse of what the commission had in mind.

One early Democratic attempt to restore the Fairness Doctrine foundered after a Reagan veto, while a threatened veto by President George H. W. Bush halted a second.

Another problem: politicians quickly learned to use the Fairness Doctrine as a sword rather than a shield. In his book The Good Guys, the Bad Guys, and the First Amendment, former CBS president Fred Friendly quoted Bill Ruder, an assistant secretary of commerce under President Lyndon Johnson: “Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.” President Richard Nixon instructed his staff to use the doctrine as a whip against those attacking his Vietnam policies.

The most basic problem with the Fairness Doctrine was, of course, the diminishing need for anything like it. Technology was galloping along, giving the lie to claims that the spectrum needed speech police rather than simple traffic cops. Back in 1949, the typical citizen might own a radio with half a dozen AM channels. Today, we have cable, satellite TV, satellite radio, the Internet, blogs, and Twitter. It’s obviously a breathtakingly more communication- friendly world than that of 1949 or even 1987, when the commission voted unanimously to repeal the doctrine. It had become a rule without a reason. Today, it is even more so. Many specialists in communications law suggest that a hefty majority of today’s Supreme Court would reverse Red Lion and hold the doctrine unconstitutional if it were reinstated.

Nonetheless, the 1987 action set in motion a partisan battle that has grown in intensity over the years. The battle tracks the phenomenal audience success of conservative talk radio, which has eclipsed similar efforts by liberals. One early Democratic attempt to restore the Fairness Doctrine foundered after a Reagan veto; a threatened veto by President George H. W. Bush halted a second. From that day to this past January, Democrats controlled either the White House or the Congress but not both.

Now, with nearly impregnable control over both houses and President Barack Obama in the White House, the Democrats are again girding for battle. Senator Debbie Stabenow of Michigan told one interviewer, ”I absolutely think it’s time to bring accountability to the airwaves.” Senator Tom Harkin of Iowa was more blunt still, saying, “We’ve got to get the Fairness Doctrine back in law again.“ On the House side, Speaker Nancy Pelosi has left little doubt that her minions are eager to tackle the project. Never mind that, talk radio aside, Democrats and liberals have proven themselves highly effective political communicators, demonstrating the most prized ability: winning elections.

Early this year, the White House told reporters that the president does not favor restoring the Fairness Doctrine. But on at least one occasion during the campaign, Obama suggested going even further than the scrapped doctrine, attacking such issues as station mission and ownership.

And thus we have purveyors of solutions assiduously searching for a problem serious enough to warrant their cures. The First Amendment may suffer a bit in the hands of a generation raised on speech codes and political correctness. We can hope the damage is reparable.