The (Un)Fairness Doctrine: An Assault on Free Speech on the Airways

Congressman Dennis Kucinich has introduced a bill that would reimposed the "Fairness Doctrine" which would require radio and television broadcasters to present controversial subjects in a "fair and balanced manner." On the surface, the move seems reasonable. But if Kucinich were to succeed in reimposing the Fairness Doctrine, the effect would be to throttle free speech on the airways. And that might be what Kucinich has in mind.

The Fairness Doctrine was first imposed by the FCC in 1949 under the notion that since the broadcast spectrum was so limited, federal regulation was required to assure "fairness" and "balance" and to prevent a few from monopolizing the airways. At the time of the enactment of the Fairness Doctrine, there were only 2,881 radio and 98 television stations in the United States. By 1989, though, there were over 10,000 radio stations and close to 1,400 television stations. Cable television and satellite and Internet radio has added greatly to broadcast choices. It would be impossible for a few people to monopolize opinion on the airways.

The Fairness Doctrine's constitutionality was adjudicated and upheld by the U.S. Supreme Court in a landmark 1969 case, Red Lion Broadcasting v. FCC (395 U.S. 367). Although the Court then ruled that the Fairness Doctrine did not violate a broadcaster's First Amendment rights, the Court cautioned that if the doctrine ever began to restrain speech, then the rule's constitutionality should be reconsidered. And, in fact, in another case.(Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241)., the Supreme Court ruled that the Fairness Doctrine "inescapably dampens the vigor and limits the variety of public debate." Finally, in 1984, the Supreme Court concluded that the scarcity rationale underlying the Fairness Doctrine was flawed and that the Fairness Doctrine was limiting the breadth of public debate (FCC v. League of Women Voters, 468 U.S. 364).

This last ruling set the stage for the FCC abolishing the Fairness Doctrine in 1987. Congress attempted to reimposed the Fairness Doctrine through legislation, but the bill was vetoed by President Reagan. A smiler attempt to reimpose the Fairness Doctrine by Senator Fritz Hollings in 1993 died due to a veto threat by then President George H. W. Bush.

A close examination of the effects of the Fairness Doctrine during its life demonstrates how it tended to stifle rather than promote free speech on the airways. The definitions of what was "fair" and "balanced" was often arbitrarily dictated by FCC bureaucrats. The Fairness Doctrine was also used as a weapon against broadcasters who were considered unfriendly by both the Kennedy and Nixon Administrations. Unwilling to deal with the bureaucratic and legal hassles, broadcast programmers would often just not air any material that the FCC would consider "controversial."

If one wants further proof about the effects the Fairness Doctrine had on free speech, one can only look to the proliferation of free and uninhibited political programing on the airways since the demise of the Fairness Doctrine. Starting with Rush Limbaugh in 1988 and continuing with such personalities as Sean Hannity, Micheal Savage, Hugh Hewitt, and others, the AM side of the radio dial has become permeated with political programming. Cable television has seen the rise of three twenty four hour news channels with issue oriented programing such as the O'Reilly Factor, Hardball, and others.

With the marketplace deciding rather than Washington bureaucrats what will and will not be on the air, the airways have become a great forum of debate and even controversy.

The one problem, at least in the eyes of Kucinich and his allies, is that the marketplace seems to favor conservative personalities rather than liberal ones. There is no liberal equivalent of Rush Limbaugh, though there have been many attempts to create one. A liberal oriented talk show network, Air America, recently collapsed in financial ruin and scandal.

People are not just tuning in to liberal talk radio. Even on television, more conservative oriented programing, such as the O'Reilly Factor, garner much high ratings that the more liberal sort, such as Hardball.

The reasons for this have been the subject of debate. Perhaps conservative broadcast personalities have just been more skilled at using the medium. Perhaps liberal opinion tends to sound malodorous when presented in a radio or even television format. The fact of the matter is, though, people tend to prefer their opinion oriented programing to come from the right rather than the left.

Kucinich and his allies apparently can't stand this. Having failed to beat conservative broadcasting in the marketplace, they intend to crush it by government fiat. They propose to force broadcast outlets to program liberal shows whether people want to watch or listen to them or not. The effect will be, just as during the 1949-1987 era, that broadcasters will choose to fore go programing political material. Conservative opinion broadcasting will die under the smothering weight of regulations.

And this, it is imagined, will suit Kucinich and his allies just fine. For too long people like Limbaugh and Hannity have used that pesky First Amendment to be a thorn in the side of liberal politicians. If some way can be found to shut them up, then a big problem for the Left will have been solved.

And don't count on the Supreme Court striking the Fairness Doctrine down should it rise from the grave. The Supreme Court, after all, found McCain-Feingold, as horrible an assault against free speech as anything Congress has done since the Alien and Sedition Act, to be Constitutional. The only thing standing between free speech on the airways and its abolition by the Fairness Doctrine is--well--us. The only thing necessary for evil to prevail, said Edmund Burke, is for good men to do nothing.