The Fairness Doctrine

February 5th, 2009

Seems that the ill-named Fairness Doctrine may be rearing its ugly head again.  It’s nothing more than a device to stifle free speech, originated in the 1920s when radio was the only broadcast medium and frequencies were scarce.  Since then, politicians, mostly liberals, have sporadically used it as a political tool to shut down opposing points of view.  It applies only to radio, of course; those who favor it would dance a different jig if it applied to NBC, CBS, ABC, CNN, and MSNBC. 

The tendency among liberals to suppress speech they disagree with is depressing.  I’m not saying that conservatives don’t sometimes have the same instinct, but they pursue it with less vigor.  Just ask any conservative who has been shut out of a university appearance because of his or her views, often at the insistence of a mass of howling students and a few faculty members.  Now and then pies and eggs get thrown at conservatives who dare to express their opinions.

Bill Ruder, a member of the Johnson Administration, said,

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.

Is the Fairness Doctrine coming back?  Yes, if some Democrats have their way.

About six months ago, Speaker of the House Nancy Pelosi was asked, “Do you personally support revival of the ‘Fairness Doctrine?'”  She responded without hesitation, “Yes.”

Senator Debbie Stabenow, D-MI, said in a radio interview today,

I think it’s absolutely time to pass a standard. Now, whether it’s called the Fairness Standard, whether it’s called something else — I absolutely think it’s time to be bringing accountability to the airwaves. I mean, our new president has talked rightly about accountability and transparency. You know, that we all have to step up and be responsible. And, I think in this case, there needs to be some accountability and standards put in place. … I have already had some discussions with colleagues and, you know, I feel like that’s gonna happen. Yep.

But maybe not.  There have always been wiser heads among us, liberal and conservative.  Supreme Court Justice William J. Brennan, dissenting in Columbia Broadcasting System, Inc., v. Democratic National Committee (1973), wrote these words:

The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends. …

Government has no business in collating, dispensing, and enforcing, subtly or otherwise, any set of ideas on the press. Beliefs, proposals for change, clamor for controls, protests against any governmental regime are protected by the First Amendment against governmental ban or control.

Free speech means nothing if it isn’t free.  Completely free, with exceptions tolerated only very rarely.  As Justice Oliver Wendell Holmes, Jr. wrote in Schenck v. U.S. (1919),

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Do Rush Limbaugh, Sean Hannity, and other conservative talk radio hosts present such a “clear and present danger” to the Republic that Congress has a right to limit their freedom of speech?  Of course not.  In fact, liberal talk radio is often more shrill and offensive than Limbaugh or Hannity.  Maybe that’s why it has never been successful.  Congress can’t shut down free speech, but radio listeners can.

Freedom of speech means nothing if it doesn’t protect the most offensive speech imaginable, within the limitation expressed by Justice Holmes.

Senator Obama made it clear during the campaign that he does not support a revival of the Fairness Doctrine.  More recently, now that he’s President Obama, his position is less clear.  What he does on this issue will say a lot about him.

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6 Responses to “The Fairness Doctrine”

  1. Kevin |

    “The tendency among liberals to suppress speech they disagree with is depressing. I’m not saying that conservatives don’t sometimes have the same instinct, but they pursue it with less vigor.”

    Where were you when VP Cheney, Limbaugh, Hannity, virtually the entirety of the right-wing blogosphere, etc., etc., etc. were openly and very, very loudly questioning the patriotism (which is an overly generous characterization of what was actually said) of anyone who dared voice a view contrary to their’s?

    Where were you when General Shinseki was sacked for giving an honest answer to what it would take to do Iraq right – which later proved to be very well grounded in reality and which, ironically, Bush ended up adopting after all of the NeoCon pipedreams failed to materialize?

    I like you, Tom. I really do. But sometimes I wonder what planet you’re living on.

  2. Tom |

    Kevin, I’d like to think I live on a planet where debate is based on facts.

    When Cheney emerged from his undisclosed location to make public statements or shoot a friend, he never proposed a law limiting the freedom of speech of those with whom he disagreed. From what I know of Cheney, I would suspect that he strongly supports that all-important principle. If you have facts showing otherwise, I’d like to see them. Ditto for Limbaugh and Hannity.

    The “sacking” of General Eric Shinseki (an officer I admire) is one of the enduring myths of the left. He was asked in a congressional hearing for his personal opinion on the number of troops that might be needed in Iraq. He indicated that about 300,000 troops might be necessary. He wasn’t fired for making that statement, and he’s never claimed that he was. In fact, he retired on time and as scheduled, with full and customary honors. Moreover, as a member of the Joint Chiefs of Staff, General Shinseki had every opportunity to oppose the war plan, but he didn’t. The fact is, the Iraqi military was soundly defeated with fewer troops that the number General Shinseki mentioned, and the surge at its height had 165,000 troops in Iraq. That number is close to the numbers used by other generals at the time General Shinseki made his estimate. You won’t find these facts by reading leftist blogs and mainstream media punditry, but they’re out there.

    The point of this article is to support the all-important principle of freedom of speech, one of the pillars of democracy. The Constitution forbids Congress and the states from making laws that abridge the freedom of speech, and that’s precisely what Democrats are talking about doing. On my planet, folks like Brennan and Holmes were against that.

    Daniel Patrick Moynihan, who also lived on my planet, once said, “Everyone is entitled to his own opinion, but not his own facts.”

  3. Kevin |

    The Fairness Doctrine doesn’t prevent speech. What it does is akin to the Equal Time rule in that it requires the inclussion of dissenting points of view, except that it has no time requirement and is restricted to matters considered to be of public importance – an admittedly vague phrase open to interpretation.

    So, when you say that the “tendency among liberals to suppress speech they disagree with is depressing,” it is in fact an argument that suppressing dissenting speech, which is what the revocation of the Fairness Doctrine allows, is somehow striking a blow FOR freedom of speech by preventing the “tendency among liberals to suppress speech.”

    Let’s use an example. In August of 2008 Rush Limbaugh stated that Obama “believes it is proper to kill a baby that has survived an abortion.” Ann Coulter went further in an interview with Hannity and stated that Obama “wants the doctors, you know, chasing it through the delivery room to make sure it gets killed.”

    Both were bald-faced lies which the Fairness Doctrine would not have prevented. The Fairness Doctrine would have required allowing some sort of rebuttal or alternate point of view.

    Thanks to the deregulation of media ownership rules (thanks, Dubya!) vastly fewer corporate owners determine what sources of information Americans get to be exposed to in 2009 than was the case in 1987 when the Fairness Doctrine was abolished. Yes, there are more info avenues open to those with the means (read: $$) to bypass the corporate media. But as usual, the most vulnerable and least educated citizens don’t have access to many (or any) of these alternate sources. Indeed that reality is at the very root of why President Obama wants to delay the switch-over to digital TV broadcasts.

    Interestingly enough, in 1969 the Supreme Court upheld the Constitutionality of the Fairness Doctrine by an 8-0 vote.

  4. Tom |

    The Court has not ruled broadly that the Fairness Doctrine is constitutional.

    The 1969 case was Red Lion Broadcasting Co. v. FCC (1969). The Court ruled on a fairly narrow issue regarding a personal attack made against an individual on the air. In its 8-0 decision, the Court stated, “The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment.” It went on, “It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise.”

    In a later case dealing with a specific issue regarding the Fairness Doctrine, FCC v. League of Women Voters of California (1984), Justice Brennan, writing for the majority, said, “As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine ‘[has] the net effect of reducing rather than enhancing’ speech, we would then be forced to reconsider the constitutional basis of our decision in that case.”

    The Fairness Doctrine, as envisioned by Democrats today, is intended to have the effect of stifling and restricting political speech of a specific and targeted kind. I’m confident the Supreme Court would eventually rule it unconstitutional if it were enacted and challenged in the courts.

  5. Brian |

    Kevin, what the fairness doctrine will require is for radio station owners to air commentators which have little or no commercial value. Liberals have EVERY opportunity to air their views over radio waves that conservatives and libertarians do. The only problem is that few care to listen to them. The only liberal point of view that has stayed on air over the years is the only one that receives the support of taxpayers – NPR, and if not for that, NPR would have gone off of the air years and years ago. The fairness doctrine is simply an attempt to silence conservative and libertarian talk radio. I am afraid that if you cannot understand that, it is you that lives on some other planet.

    A wise friend once told me that there are none so blind as those that choose not to see.

  6. doris |

    Soooo, what can be done to prevent the out and out lies of conservative talk show hosts??? Nothing? I see the freedom of speech being abused on a daily basis, especially on the computer, where all is alright, even pedophiles, bombers, killers and just evil people teaching others to do their evil bidding. Shouldn’t something not come under the heading of freedom of speech? It’s a slippery slope….

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