Fairness Doctrine (Part 2) - Will It Return? And What's Wrong With Fairness?
Last week, we wrote about how the Fairness Doctrine was applied before it was declared unconstitutional by the FCC in the late 1980s. When we wrote that entry, it seemed as if the whole battle over whether or not it would be reinstated was a tempest in a teapot. Conservative commentators were fretting over the re-imposition, while liberals were complaining that the conservatives were making up issues. But what a difference a week makes.
Perhaps it is the verbal jousting that is going on between the political parties over the influence of Rush Limbaugh that has reignited the talk of the return of the Doctrine, but this week it has surprisingly been back on the front burner – in force. Senator Debbie Stabenow from Michigan said on a radio show that the positions taken by talk radio were unfair and unbalanced and that “fairness” shouldn’t be too much to ask (listen to her on-air remarks) . When prompted by the host as to whether there would be Congressional hearings or legislation, the Senator said that it would certainly be something that Congress would consider.
And, all over, there were other discussions about the potential return of the Doctrine in some form or another. One of my partners, Bob Corn-Revere, wrote an article for the Media Institute blog expressing concern about the possibility of the return of the doctrine, either directly or through some form of localism regulation that would mandate specific types of programming. Republican FCC Commissioner Robert McDowell expressed similar concerns about the return of the Doctrine perhaps disguised as some sort of Localism requirement that mandates full coverage of local controversies. Former FCC General Counsel Henry Geller Geller wrote in response to Commissioner McDowell and defended the doctrine (while expressing doubt about its return). Mr. Geller stated that the doctrine was not that much of a burden to broadcasters as it did not demand mathematical equality (as we stated in our post last week), but instead only required that a broadcaster allow those from both sides of an issue to present their views. He suggested that even Rush allows that by inviting guests to discuss and debate topics with him on the air.
But while the doctrine in theory seem easy to comply with, there were many battles at the FCC costing broadcasters many thousands of dollars in legal debates over whether what they aired really did give all sides of an issue an adequate opportunity to have their say. And, more importantly, by its very nature, the Doctrine is a burden on the free speech rights of broadcasters, and puts the government in a position where it should never be – deciding what speech should or should not be made.
Look at the logical extension of the Fairness Doctrine. While it is seemingly a debate of liberals against Rush that is prompting the talk right now – the Doctrine requires fairness on all controversial issues of public importance. Sometimes there are far more than 2 sides to an issue. Who decides which sides get heard and which don't? For instance, right now, the Catholic Church is embroiled over a controversy about some fringe priests who deny the existence of the holocaust. If a station were to air one of the many movies now in theaters about the holocaust, would the Fairness Doctrine compel broadcast stations to provide time to the deniers to advance their views? Affirmative action is another issue that may come to the fore in the near future. Client stations of mine have had to deal with political candidates from avowedly racist parties, and to put these candidates ads on the air under the equal time rules that apply to candidates. Under a Fairness Doctrine, would they also have to allow spokesman from these groups to have a say when affirmative action or discrimination issues are discussed?
These may seem like extreme examples – where all rational people should agree that these extreme views should not be allowed on the air – that more moderate voices may suffice to provide balance on affirmative action debates, and that no one can deny the existence of the holocaust, and that therefore it is not a controversial issue requiring fairness. But even these seemingly obvious determinations contain value judgments that the government should not be in the business of making in these extreme circumstances any more than it should be making these distinctions in the much closer cases that would arise every day. No one would ever suggest that the government should be able to regulate what content goes on the editorial pages of the New York Times or the Washington Times. No one should be able to dictate that the Nation and the National Review present both sides of every issue that they cover. Why should broadcasters have a different version of the First Amendment applicable to their speech?
With an administration and a Congress that have expressed concerns over the abuse of human rights and the trampling of constitutional protections under the last administration, how can Congress seriously talk about the return of the Fairness Doctrine and the First Amendment concerns that such a return would bring? These positions seem so inconsistent that we can only hope that the rumblings that have been heard in Washington this last week are just rumblings – outgrowths of some of the partisan squabbles brought about by the intense debate over how best to get the economy moving again that will pass with time. But broadcasters and civil rights advocates of all political persuasions should be on guard against any potential infringement of their rights – and be read to do battle if these proposals are really put forward.
I'm a doctoral student at UW-Madison studying structural and content policies of the FCC and the evidence the commission relies on to support its decision making.
In your posts on the fairness doctrine, you never address an issue that I'm largely curious about.
The doctrine went away in the mid 1980's as the result of the policy decisions of the FCC at the time. This policy decision was supported through the Meredith, TRAC and Syracuse cases, and while the appeals court took a dim view on the constitutional issue, Red Lion has not been overruled. As recently as the Prometheus decision, scarcity has been argued as a valid concept.
I don't believe the doctrine will return, but if it did, would it withstand judicial review?
The FCC arbitrarily redefined "scarcity" to justify their argument that the doctrine did not serve the public interest and was unconstitutional. I would contend that their arbitrary redefinition of a term to justify a legal conclusion was an act contrary to law. (I published a paper to this point two years ago.)
You call it a potential burden on broadcasters. The FCC has defined "undue burden" as it applies to broadcast regulation.
Given the criteria put forth by the FCC in the Home Shopping Network case, it seems unlikely that the doctrine would rise to the level of an "undue burden."
If nothing else, I live in a small town with one radio station and one newspaper. The newspaper shows significant bias.
Nothing we can do about that. Perhaps asking the only broadcaster in town to be fair would not be unreasonable especially since he is the only allocated frequency allowed in our area.
Despite my very respectful disagreement here, I appreciate your blog. It always gives me something to think about.
Rick,
Could I get a citation for that paper?
cterry@wisc.edu
A Government Controlled Press
There are calls for the return of the Fairness Doctrine and beyond that, for government to "balance" broadcast news content and information programming.
That would necessarily put a central government agency in charge of much of the flow of information to the American public.
Will there be new regulations of broadcast news content? Even if claimed necessary for fairness, balance, localism or good citizenship, the question remains whether government oversight and regulation of broadcast news and program content will best, or even possibly provide it. The factual record of the Fairness Doctrine shows it will not.
It is said that a better informed reading of the First Amendment's protection of speech and press affirmatively authorizes government revision of news and program content to provide, for example, information balance or better behavior by the public.
The regulation of commercial enterprise is something we can manage. But regulation of speech, press and thought is quite a different matter. There are no economic models or thought paradigms that can help us assess the "right" amount of government interference with what otherwise would be the free flow of information to the public. Can we impose a government truth for issues of political or social consequence and still avoid benign or corrosive government censorship?
The record we do have is that of the Federal Communications Commission in its enforcement of the Fairness Doctrine over a number of years. While the Agency and Judicial theories were attractive at its adoption, by 1985 the facts were overwhelming. It was a flawed and impermissible approach to control of broadcast news coverage and program content.
Those years can be seen as a unique and extraordinary test of the notion that the First Amendment can and should be used to further other social purposes along with
the traditional use of protecting, for example, the press from government control. Ordering news to present other views whether or not the truth, whether or not newsworthy by journalism standards and determined by counting transcript lines and seconds of broadcast with a stopwatch to meet the government's mechanical standard for fairness, did not prove out.
After an exhaustive factual examination, the FCC found in 1987 that the Doctrine:
"1) chills speech and results in the net reduction of the presentation of controversial issues of public concern and
2) excessively infringes on the editorial discretion of broadcast journalists and involves unnecessary government intervention..." ( 41)
The FCC opinion demonstrated the risks to any broadcaster when trying to comply with the Doctrine. It pointed out that government sanctions could be imposed on broadcasters when government would "second-guess broadcasters' judgment on the issues they cover as well as on the manner and balance of coverage."
Not only was it "safer" to broadcast other kinds of programming, the Doctrine favored orthodox opinions and penalized or impeded the expression of unpopular opinion depriving the public of robust debates which the Doctrine in theory was to promote.
This is not a record that the Doctrine was "all right." Nor was it consistent with broad discretion for the broadcaster in what would be broadcast. The FCC found explicitly that the Doctrine "indisputably represents an intrusion into a broadcaster's editorial discretion," both in its enforcement and in the threat of enforcement. This was not what the Supreme Court held was acceptable when holding the Doctrine Constitutional under the First Amendment.
In language that would now be appropriate for government fixing of "fairness," "balance" or other subjective terms, the FCC said when ending its own Fairness Doctrine, "The Doctrine forces the government to make subjective and vague value judgments among various opinions on controversial issues to determine whether a licensee has complied with its regulatory obligations." As a practical matter, since there is no objective standard available, the Commission can pretty much decide what is useful for its purposes, if it thinks and says it serves "the public interest."
Thus, a majority vote of the government agency commissioners inadvertently or deliberately can establish the public's understanding of the important controversial issues of our time. Under the Fairness Doctrine, as with some new "Rule of Balance," government authority could be used to determine what views
or issues, or what it says were views and issues, were broadcast. It could be used to order other contrary "news material" to be broadcast.
Just as under the Fairness Doctrine, government power could be used to to "balance" news and program content even if that worked to suppress news, to change the news, to order additional "news" material broadcast which would mislead the public, even if not itself true. It could also be used to threaten broadcasters so that opposition views are forced off the air
In fact, it was later discovered that the Fairness Doctrine had been used by political campaigns to drive opposing views off the air by harassing broadcasters with Fairness complaints. And, on a different concern, the chairperson of the FCC and the majority were (and are) appointed by the President. When the Commission ruled on Equal Time complaints together with Fairness complaints during political campaigns and controversies, this had to raise theoretical governance questions, however moderate and fair the Commissioners sought to be.
It is hard to imagine the print press having to deal with regulations against free speech and free press which the broadcasters experienced. In fact, the FCC concluded from its record of Fairness Doctrine enforcement that the broadcast press should have the same protection under the First Amendment as the print press. If the government were to recognize that for the broadcast press, what a change and improvement that would make for press and public.
Corydon B.Dunham
formerly Exec VP and General Counsel of NBC, Woodrow Wilson Scholar, participant in Harvard Law School, Corydon B. Dunham Fellowship for the First Amendment, Frank Stanton Initiative.
For the FCC to declare the FD counterproductive it had to redefine scarcity. Scarcity had been defined as the situation in which can all who wish to speak indeed have a means of speaking. Since the answer was no, then it was declared that broadcasters must make affirmative efforts to provide diversity of viewpoint.
The Commission redefined scarcity as the mere examination of whether there were a large number of venues to speak. I suggest that this redefinition that the FCC used to justify losing the FD was arbitrary and therefore against their own rules (as well as countrary to the Administrative Procedures Act).
On a more human level, the FCC's new definition of scarcity equated a network affiliate or a clear channel AM station to a leased access cable channel or a individually produced website. Yes, the information is available, but the user would have to take extraordinary measures, have access to technology and/or be aware that such programming exists.
The choice becomes whether the FD places an undue burden on broadcasters or whether the lack places an undue burden on the viewer/listener.
I do not argue the point that to some degree the discretion of the broadcaster is compromised. I do not argue that some broadcasters argued anecdotal evidence that they had been chilled. Did the FD serve a valuable function? There is evidence it did so and could continue to do so.