Fairness Doctrine

The attempt by Senate Democrats to target Rush Limbaugh over his "phony soldiers" remark backfired badly on Harry Reid team.

But it was an early indicator of the extraordinary willingness of Democratic politicians to use their power to punish speech -- the political speech of critics and a preview of what the fight over the restoration of the "Fairness Doctrine" might look like.

The term "fairness" is, of course, a misnomer here: the doctrine demands heavy-handed, content-based speech regulation by the Federal Communications Commission. At best, the Fairness Doctrine would be Affirmative Action for Air America. At worst, it would be a cudgel to bludgeon troublesome political opponents and stultify political debate.

But despite the current enthusiasm for its restoration on the left, the Fairness Doctrine is both legally and technologically obsolete, based on principles that have already been rejected by the courts, and justifications that have been swept away by the transformation in the media over the last two decades.

At the time the doctrine was first promulgated, there were only three networks and a mere handful of broadcast outlets. Today there are hundreds: satellite radio, cable television, and the interne. The case for government control has never been weaker.

Supporters of the Fairness Doctrine argued then, and now, that broadcast speech is uniquely subject to government regulation because it is carried over what liberals like to call the "publicly owned airwaves." According to this argument, the scarcity of spots on radio and television spectrum justified government regulation and exempted broadcast speech from the First Amendment protections enjoyed by newspapers and other media (including, for the time being, the internet and cable.)

But the argument that the airwaves are "public" is remarkably weak. Far from granting the government greater powers for regulation, the fact that airwaves are public ought to give such speech even greater protection. Private individuals or entities can limit speech, but government cannot; speech in a private mall or office can be regulated; but speech in the public square enjoys special protections, precisely because it is public, where the powers of the censor are the most tightly constrained.

Moreover, the argument that broadcast speech can be regulated because it is carried on "public airwaves," could also be applied to newspapers that are, after all, delivered using publicly-owned roads; cable stations are transmitted over government-sanctioned cable lines; satellites transmit through the (publicly owned?) atmosphere; and magazines and other materials are sent through the U.S. Mail. Are they also subject to government regulation because of their mode of dissemination?

This is not merely speculation. In the mid-1980s, the Court of Appeals for the D.C. Circuit specifically rejected the argument that the government's granting of usable frequencies to broadcasters was a justification for granting broadcast speech a lesser standard of free speech protections.
"A publisher can deliver his newspapers only because the government provides streets and regulates traffic on the streets by allocating rights of way," the judges wrote. "Yet no one would contend that the necessity for these governmental functions, which are certainly analogous to the government's function in allocating broadcast frequencies, could justify regulation of the content of the newspaper to ensure that it serves the needs of the citizens."[1]
What about the argument that government regulation of broadcast is justified by the "scarcity" of spots on the broadcast spectrum?

The same court ruled that:
"There is nothing uniquely scarce about the broadcast spectrum. Broadcast frequencies are much less scarce now than when the scarcity rationale first arose in National Broadcasting Company v. the United States, and it appears currently ‘the number of broadcast . . . rivals and perhaps surpasses the number of newspapers and magazines in which political messages may effectively be carried.'[2] Indeed, many markets have a far greater number of broadcasting stations than newspapers.[3]
The court went on to find:
"The basic difficulty in this entire area is that the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference....

"It is certainly true that broadcast frequencies are scare but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wished to publish a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, you can hardly explain regulation in one context and not another."
[4]
In abolishing the Fairness Doctrine, the FCC acknowledged all of these logical and constitutional flaws. In August 1987, by a 4-0 vote, the FCC deciding that "the intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ...."[5]

Most important of all, the FCC declared that "the constitutional principles applicable to the printed press should be equally applicable to the electronic press."

By the left's own account, the regulators will be quite busy if the doctrine is re-imposed: the liberal Center for American Progress estimates that more than 1,700 radio stations around the country have some form of talk show, with 50 million listeners a week. Each weekday, they figure, more than 2,824 hours of political talk (most of it conservative) are broadcast on those stations.[6]

On an annual basis that comes to 146,848 hours of regulated speech, requiring mountains of tape machines and stop watches to measure "fairness"  - and an almost unimaginable explosion in the number of regulatory speech policemen.

But in an era of podcasts, cable, satellites, and the internet, attempting to regulate speech is like trying to put smoke back in a bottle - even in the name of a goal as seemingly attractive, but elusive, as "fairness." In the unlikely event that the new regime survived constitutional challenge, a restored Fairness Doctrine would probably merely shift the raucous political debate from broadcast to the internet, satellite radio, and cable.

The speech police would find that their prey had fled. But isn't that what the Founders had in the mind?

As Justice Potter Stewart wrote: "Those who wrote our First Amendment put their faith in the proposition that a free press is indispensable to a free society. They believed that 'fairness' was far too fragile to be left for a government bureaucracy to accomplish."[7]

Charles J. Sykes is a senior fellow at the Wisconsin Policy Research Institute. His latest book is "50 Rules Kids Won't Learn in School."


[1]Telecommunications Research & Action Center v. Federal Communications Commission, 801 F.2d 501 (D.C. Cir.), petition for reh'g en banc denied, 806 F. 2d 1115 (D.C. Cir. 1986), cert.denied, 482 U.S. 918 (1987); Branch v. Federal Communications Commission, 824 F2d 37 (D.C. Cir.), cert.denied, 485 U.S. 959 (1988); Meredith Corp. v. Federal Communications Commission, 809 F.2d 863 (D.C. Cir. 1987).

[2] Loveday v. FCC, 707 F. 2d 1443, 1459 (D.C. Cir.), cert.denied, 464 U.S. 1008 (1983) (citing National Broadcasting Co. , Inc v. United States, 319 U.S. 190 (1943)).

[3] 801 F.2d at 509 m. 4 (citations omitted).

[4] Id. at 508 (footnote omitted).

[5] Syracuse Peace Council, 2 F.C.C. Rcd. 5043, 5056,63 Rad. Reg 2d (P&F) 541, 583 (1987)

[6] John Halpin, James Heidbreder, Mark Lloyd, Paul Woodhull, Ben Scott, Josh Silver, S. Derek Turner, "The Structural Imbalance of Political Talk Radio," June 20, 2007, Center for American Progress

[7] Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 145-46 (1973) (Stewart, J., concurring).
The attempt by Senate Democrats to target Rush Limbaugh over his "phony soldiers" remark backfired badly on Harry Reid team.

But it was an early indicator of the extraordinary willingness of Democratic politicians to use their power to punish speech -- the political speech of critics and a preview of what the fight over the restoration of the "Fairness Doctrine" might look like.

The term "fairness" is, of course, a misnomer here: the doctrine demands heavy-handed, content-based speech regulation by the Federal Communications Commission. At best, the Fairness Doctrine would be Affirmative Action for Air America. At worst, it would be a cudgel to bludgeon troublesome political opponents and stultify political debate.

But despite the current enthusiasm for its restoration on the left, the Fairness Doctrine is both legally and technologically obsolete, based on principles that have already been rejected by the courts, and justifications that have been swept away by the transformation in the media over the last two decades.

At the time the doctrine was first promulgated, there were only three networks and a mere handful of broadcast outlets. Today there are hundreds: satellite radio, cable television, and the interne. The case for government control has never been weaker.

Supporters of the Fairness Doctrine argued then, and now, that broadcast speech is uniquely subject to government regulation because it is carried over what liberals like to call the "publicly owned airwaves." According to this argument, the scarcity of spots on radio and television spectrum justified government regulation and exempted broadcast speech from the First Amendment protections enjoyed by newspapers and other media (including, for the time being, the internet and cable.)

But the argument that the airwaves are "public" is remarkably weak. Far from granting the government greater powers for regulation, the fact that airwaves are public ought to give such speech even greater protection. Private individuals or entities can limit speech, but government cannot; speech in a private mall or office can be regulated; but speech in the public square enjoys special protections, precisely because it is public, where the powers of the censor are the most tightly constrained.

Moreover, the argument that broadcast speech can be regulated because it is carried on "public airwaves," could also be applied to newspapers that are, after all, delivered using publicly-owned roads; cable stations are transmitted over government-sanctioned cable lines; satellites transmit through the (publicly owned?) atmosphere; and magazines and other materials are sent through the U.S. Mail. Are they also subject to government regulation because of their mode of dissemination?

This is not merely speculation. In the mid-1980s, the Court of Appeals for the D.C. Circuit specifically rejected the argument that the government's granting of usable frequencies to broadcasters was a justification for granting broadcast speech a lesser standard of free speech protections.
"A publisher can deliver his newspapers only because the government provides streets and regulates traffic on the streets by allocating rights of way," the judges wrote. "Yet no one would contend that the necessity for these governmental functions, which are certainly analogous to the government's function in allocating broadcast frequencies, could justify regulation of the content of the newspaper to ensure that it serves the needs of the citizens."[1]
What about the argument that government regulation of broadcast is justified by the "scarcity" of spots on the broadcast spectrum?

The same court ruled that:
"There is nothing uniquely scarce about the broadcast spectrum. Broadcast frequencies are much less scarce now than when the scarcity rationale first arose in National Broadcasting Company v. the United States, and it appears currently ‘the number of broadcast . . . rivals and perhaps surpasses the number of newspapers and magazines in which political messages may effectively be carried.'[2] Indeed, many markets have a far greater number of broadcasting stations than newspapers.[3]
The court went on to find:
"The basic difficulty in this entire area is that the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference....

"It is certainly true that broadcast frequencies are scare but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wished to publish a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, you can hardly explain regulation in one context and not another."
[4]
In abolishing the Fairness Doctrine, the FCC acknowledged all of these logical and constitutional flaws. In August 1987, by a 4-0 vote, the FCC deciding that "the intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ...."[5]

Most important of all, the FCC declared that "the constitutional principles applicable to the printed press should be equally applicable to the electronic press."

By the left's own account, the regulators will be quite busy if the doctrine is re-imposed: the liberal Center for American Progress estimates that more than 1,700 radio stations around the country have some form of talk show, with 50 million listeners a week. Each weekday, they figure, more than 2,824 hours of political talk (most of it conservative) are broadcast on those stations.[6]

On an annual basis that comes to 146,848 hours of regulated speech, requiring mountains of tape machines and stop watches to measure "fairness"  - and an almost unimaginable explosion in the number of regulatory speech policemen.

But in an era of podcasts, cable, satellites, and the internet, attempting to regulate speech is like trying to put smoke back in a bottle - even in the name of a goal as seemingly attractive, but elusive, as "fairness." In the unlikely event that the new regime survived constitutional challenge, a restored Fairness Doctrine would probably merely shift the raucous political debate from broadcast to the internet, satellite radio, and cable.

The speech police would find that their prey had fled. But isn't that what the Founders had in the mind?

As Justice Potter Stewart wrote: "Those who wrote our First Amendment put their faith in the proposition that a free press is indispensable to a free society. They believed that 'fairness' was far too fragile to be left for a government bureaucracy to accomplish."[7]

Charles J. Sykes is a senior fellow at the Wisconsin Policy Research Institute. His latest book is "50 Rules Kids Won't Learn in School."


[1]Telecommunications Research & Action Center v. Federal Communications Commission, 801 F.2d 501 (D.C. Cir.), petition for reh'g en banc denied, 806 F. 2d 1115 (D.C. Cir. 1986), cert.denied, 482 U.S. 918 (1987); Branch v. Federal Communications Commission, 824 F2d 37 (D.C. Cir.), cert.denied, 485 U.S. 959 (1988); Meredith Corp. v. Federal Communications Commission, 809 F.2d 863 (D.C. Cir. 1987).

[2] Loveday v. FCC, 707 F. 2d 1443, 1459 (D.C. Cir.), cert.denied, 464 U.S. 1008 (1983) (citing National Broadcasting Co. , Inc v. United States, 319 U.S. 190 (1943)).

[3] 801 F.2d at 509 m. 4 (citations omitted).

[4] Id. at 508 (footnote omitted).

[5] Syracuse Peace Council, 2 F.C.C. Rcd. 5043, 5056,63 Rad. Reg 2d (P&F) 541, 583 (1987)

[6] John Halpin, James Heidbreder, Mark Lloyd, Paul Woodhull, Ben Scott, Josh Silver, S. Derek Turner, "The Structural Imbalance of Political Talk Radio," June 20, 2007, Center for American Progress

[7] Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 145-46 (1973) (Stewart, J., concurring).