Scholars v. Censorship
First, from today’s George Will column:
Until the Reagan administration extinguished it, the doctrine required broadcasters to devote reasonable time to fairly presenting all sides of any controversial issue discussed on the air. The government decided the meaning of the italicized words.
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In 1969, when the Supreme Court declared the fairness doctrine constitutional, it probably did not know the Kennedy administration’s use of it, as one official described it: “Our massive strategy was to use the fairness doctrine to challenge and harass the 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.” Richard Nixon emulated this practice. In 1973, Supreme Court Justice William Douglas, a liberal, said the doctrine “has no place in our First Amendment regime” because it “enables administration after administration to toy with TV or radio.”
The court’s 1969 ruling relied heavily on the scarcity rationale. But Brian Anderson and Adam Thierer, in their book “A Manifesto for Media Freedom,” note that today there are about 14,000 radio stations, twice as many as in 1969, and 18.9 million subscribers to satellite radio, up 17 percent in 12 months, and 86 percent of households with either cable or satellite television receive an average of 102 of the 500 available channels. Because daily newspapers are much more scarce than are radio and television choices, should there be a fairness doctrine for The New York Times?
Secondly, Ellen P. Goodman, a Professor at Rutgers University School of Law–Camden, has written an article for the George Washington Law Review. This is a very thoughtful article (which a friend of mine says always means “long”) with a lot of solid research and analysis for future discussions and potential lawsuits.
Prof. Goodman argues
that the underlying goal of exposure to particular media content is not achievable through the fairness doctrine. In doing so, I accept for the sake of argument that it would be both legally and practically possible to implement a regulatory requirement of fairness; that is, that there remains in today’s world such a thing as “conventional mass media” to which the doctrine could apply, that the doctrine is constitutional, that it would not unduly chill speech or experimentation in new forms of content, that government is capable of enforcing fairness in media, and that neutrality is the desirable end state for every mass media channel. About all of these propositions I have considerable doubt, but even accepting them, I conclude that with respect to the third dimension of Professor Magarian’s schema —the fit between the media landscape and the regulatory goals of the fairness doctrine—coverage and balance regulations will not achieve the goal of public exposure to desired content.
She argues that supporters of the “Fairness Doctrine” characterize
the fairness doctrine as an instrument for “administering access rights” because it affords speakers on the other side of a controversial topic access to the airwaves. As the Supreme Court observed in upholding the doctrine, however, its focus is not actually on speaker access; rather, the speaker’s interest in accessing the audience is far less important than the audience’s interest in hearing diverse speakers. The hope of the fairness doctrine is that the public not be left uninformed. In this respect, the doctrine’s purpose is not to administer speaker access so much as to promote audience exposure. (emphasis mine)
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In 1950, soon after the FCC adopted the fairness doctrine, the average top-ten television show had an average audience rating of 44.8; in 2005, the rating had declined to 13.4. Today, more than half of all television viewing is nonbroadcast, and a growing percentage of video consumption does not involve television. Cable and new media consumption grew almost twenty percent over the last five years while consumption of newspapers and broadcast television declined six percent. Online media consumption will likely only grow as wired and mobile broadband penetration increase. The trend of declining viewership for broadcast programming is nowhere more evident than for news programming. Network evening news has lost a million viewers in each of the last twenty-five years. (emphasis mine)
Turning the Censorship Doctrine ruling in Red Lion on its head:
As George Will also noted, since the Red Lion decision in 1969 upholding the constitutionality of the “Fairness Doctrine”, there’s been an explosion in the number of over the air radio and television stations — not to mention the creation of the internet, satellite radio and television, and cable television. (Remember, though, the Reagan FCC unilaterally removed the Fairness Doctrine in 1987 declaring it unconsitutional — but this has never been confirmed by the US Supreme Court since no one has tried to bring it back.)
Now consider this:
1. If massively increased audience exposure of alternate or conflicting viewpoints is the goal under the principles of Red Lion, and
2. If localism and “Fairness Doctrine” rules are generated by the FCC, also with the goal of increasing audience exposure to alternate or conflicting viewpoints, and
3. Since most of the major media have a liberal bias
then shouldn’t talk and Christian radio be promoted rather than controlled and banished?
Just an argument to keep in mind if the need arises.
As Rush says: “I am equal time”
Merry Christmas!