The Fairness Doctrine

Please don't ask me how I stumbled onto Townhall.com -- I watched their GM Chuck DeFeo at today's Beyond Broadcast conference and from that point forward I blame Google -- but I did. And in doing so, came across Ohio's Ken Blackwell going on about the impending threat of the Fairness Doctrine, an old FCC reg largely done away with under the Reagan Administration.

The Fairness Doctrine was one of the principles around which modern American media organized. Here's the basic idea: wireless spectrum is a public resource, therefore licensees have a responsibility to serve the public interest. What that meant is that broadcast TV and radio stations had to (1) address controversial issues and also (2) allow for contrasting viewpoints. Beyond that, anyone who was the target of a "personal attack" had to be notified and given the opportunity to respond, and any political candidate not endorsed by a broadcast station had be given the opportunity to make their case on-air.

The FCC established the Fairness Doctrine in 1949, and the Supreme Court upheld it twenty years later in Red Lion Broadcasting vs. FCC -- ruling that yes, because the licensees were using a finite government resource, they could be fairly expected to carry these burdens.

So where did it go? Key to its demise was the Reagan Administration's attitude towards media. Listen to FCC Chairman Mark Fowler, appointed by Reagan:

The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants.

In that spirit, the FCC slowly tore down the Fairness Doctrine. Congress passed legislation mandating its survial, but Reagan vetoed it.

The Fairness Doctrine came up again in 2004, when the spirit of it was invoked during the battle to have Sinclair prevented from running an anti-Kerry documentary on 62 stations just before the 2004 presidential election. The Democratic control of Congress promises to put it back in the spotlight even more. Louise Slaughter and Jan Schakowsky have been pushing for its return for years, and its one of the provisions in Maurice Hinchey's Media Ownership Reform Act. Now Denny Kucinich, who happens to be chair of the House Oversight Subcommittee on Domestic Policy, is promising to try to bring it back.

I've gone into the background of this question of bringing back the Fairness Doctrine -- mentioned it at all, really -- because I'm a firm believer that the outcome to the on-going battle over media reform is going to shape this country for the next few generations. In short, we're going to have to argue this question eventually, and we should be well-prepared for it.

But here's the thing. Restoring the doctrine would definitely change out the media landscape, that's for sure. Ken Blackwell, Rush Limbaugh, and the Heritage Foundation are all adamantly opposed to it, which has to count for something. But I'm going to pull an on-the-other-hand here. With the way things are with media today, can you imagine the battles that would ensue trying to police this standard of fair and balanced? Is it even necessary when everyone can go on the neutral Internet and speak their mind? (Which brings up the slippery slope of applying something like this to the Internet, though it's easy enough to cut the legs out from under that -- the Internet isn't a finite resource.)

Having studied this in depth for all of two hours now, I'm leaning towards thinking that restoring the Fairness Doctrine might be a case of the right (and incredibly important) end goal -- a greater diversity in the media -- but the wrong tactic. But I may well be completely wrong on this.

Tags: Fairness Doctrine, FCC, media reform (all tags)

Comments

28 Comments

Re: The Fairness Doctrine

"The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants."

I hate neoliberals.

by jallen 2007-02-24 02:20PM | 0 recs
Re: The Fairness Doctrine

Blackwell disappeared from view rather quickly. I wondered what bunch of wingnuts would adopt him as their token. Now we know.

by rich 2007-02-24 02:27PM | 0 recs
Everyone?

Unless there is a radical narrowing of the Digital Divide, can the internet really be considered the answer to the poverty of political discourse on television. At any rate, MORA seems to take the wisest path: combining fairness doctrine restoration with anti-consolidation efforts.

by anku 2007-02-24 02:34PM | 0 recs
Re: The Fairness Doctrine

I'd rather they bring back the media diversity regulations from pre-Telecom Act of 1996 that kept the entire nation's radio airwaves from being owned by Clear Channel. And I'm wondering, given the insane perversions of the concept of "balance" that we have reached in the last decade, whether a new Fairness Doctrine would be construed to give "equal time" for and against, say, the theory of evolution, or the scientific principle of global warming, or whether HIV causes AIDS...

The biggest problem with a Fairness Doctrine revival at this point, though, is the simple fact that FCC television regulations are today more or less irrelevant. The biggest source of one-sided viewpoints in American media today, Fox News, is on cable and doesn't have to follow any FCC rule.

by mcc 2007-02-24 02:46PM | 0 recs
Re: The Fairness Doctrine

Then we should make it apply to cable as well.

by davej 2007-02-24 05:02PM | 0 recs
Re: The Fairness Doctrine

That's not possible.

The constitutionality of the fairness doctrine, as this article notes, is based on the principle that airwaves are a limited, public resource, and so since the airwaves belong to the public rather than the television companies the public has the right to tell the television companies what to do with them.

Cable television networks are private communications sent through privately owned distribution channels. The FCC has no place regulating the content of those communications, and no law passed to give them that power could survive in court.

by mcc 2007-02-24 11:53PM | 0 recs
Re: The Fairness Doctrine

Cable providers are municipal monopolies almost everywhere if not everywhere in the United States. If it operates under a legally-enforced monopoly, the government has the right to regulate it. The fact that these monopolies are local rather than federal might be an issue, but I believe the legal reason  they are municipal monopolies is because of some federal regulation. Let cable providers be common carriers and they would have an argumnent, but they are not and they don't. Regulate away.

by bento 2007-02-25 01:51AM | 0 recs
Re: The Fairness Doctrine

Yeah, but does the federal government have the constitutional authority to regulate local monopolies?  Is that something you want?

Me, I want ala carte cable so I can stop sending Pat Robertson money every month.

by jayackroyd 2007-02-25 03:12AM | 0 recs
Re: The Fairness Doctrine

Many legal scolars believe that the "Fairness Doctrine" can no longer survive scrutiny under the First Amendment.  Although it was upheld a few decades ago, most feel the current Supreme Court would strike it down were the question to be put squarely before them.

by pontificator 2007-02-24 02:46PM | 0 recs
Re: The Fairness Doctrine

I've never understood what one has to do with the other.  The First Amendment addresses your freedom to, say, protest on the sidewalk in front of my home, but not on my lawn - because my lawn is private property.

Similarly, the Fairness Doctrine's legitimacy stemmed from the fact of the broadcast spectrum as property owned by all of us in common, with the spectrum licensees being responsible to represent all our voices, and not just their own.

If we ever get a Dem Administration, we could enforce an impromptu Fairness Doctrine simply by not renewing licenses of stations that didn't want to abide by one.  You'd hear those screams a mile away.

by RT 2007-02-24 03:32PM | 0 recs
Re: The Fairness Doctrine

Okay, but would you be happy with a Bush-appointed FCC chairman imposing "fairness" on MSNBC et al?

If it's not a tool you'd give your enemy, don't afford it to your friends either.

by Adam B 2007-02-25 05:07AM | 0 recs
"American BBC" In Addition/Instead

I'm in favor of something more directly relevant to this problem. Sad to say, PBS is a joke. The U.S. needs a potent public, noncommercial broadcaster -- an "American BBC" -- with a budget that comes from a stable revenue stream. (I'd recommend an endowment from the auction of analog television frequencies, since the "television tax" has its own problems.)

by BBCWatcher 2007-02-24 03:21PM | 0 recs
Re: "American BBC" In Addition/Instead

Amen.

At least Frontline still gets made. Given the current climate and funding structures at PBS it seems remarkable.

by leolabeth 2007-02-25 02:07AM | 0 recs
Re: The Fairness Doctrine

"Denny" Kucinich?

by The Cunctator 2007-02-24 03:21PM | 0 recs
Re: The Fairness Doctrine
You know something, you're right. That's what we used to call him on the Hill -- not meant to diminish him, more playful -- and I didn't even think about using it. But I don't need to perpetuate some negative image of him.
by Nancy Scola 2007-02-24 03:42PM | 0 recs
Re: The Fairness Doctrine

I feel that the right solution is to alter the libel/slander laws to put some real teeth in them.

In America, you can't be sued for slandering a public figure unless there's "intentional malice," a standard which is currently impossible to prove.   How can you prove that a given lie was intentional, and not just the result of ignorance?  That's why media figures in America are essentially never sued for their slanders.

In Europe, you don't have to prove malice in order to sue somebody for slander or libel.  Simply the fact that they said something untrue about you is enough.  This may be a big part of the reason that there's so much less crap in European media.

I wouldn't suggest completely eliminating the "proof of malice" requirement, but I would suggest weakening it.  In particular, I would suggest a law that says that any media personality who has been specifically warned about a given falsehood, and who repeats the falsehood despite having received a warning, shall be presumed by the courts to have done so maliciously.

So here's how it would work in practice.  Step 1, Matt Drudge comes up with some outrageous lie about Barack Obama.  Step 2, Barack Obama sends out a certified letter to every media personality he can think of, warning them that Drudge's allegation is a lie, and explaining why it's a lie.  Step 3, O'Reilly repeats the lie anyhow.  Step 4, Obama sues O'Reilly for slander.   But since O'Reilly was specifically warned about this falsehood, and since he repeated it anyhow, the courts are instructed to assume that it was done with malice.  This takes the burden of proof off of Obama - he no longer has to prove malice - and instead puts it on O'Reilly - he now has to prove that he didn't do it maliciously.

This would dramatically slow down the spread of swiftboat-style nonsense.  It would also pretty much shut down people like Limbaugh and O'Reilly who make a business out of spreading falsehoods.

by joshyelon 2007-02-24 04:02PM | 0 recs
Well

There would have to be conclusive, solid evidence that the claim was indeed a lie, and not just a letter or a claim from the "injured" party charging so. Issues that were "debatable" could not be litigated.

by OfficeOfLife 2007-02-24 04:15PM | 0 recs
Re: The Fairness Doctrine

I'm doubtful about the wisdom of this. In Britain our stricter libel laws (the burden of proof is much more on the defendant) have already led to magazines which primarily circulate in America but sell a minute amount of copies this side of the pond getting sued for libel here on grounds that would have been laughed out of US courts.

If you want a bit of background, try googling "McLibel".

by Englishlefty 2007-02-25 10:37AM | 0 recs
Re: The Fairness Doctrine

Reading through the comments, I like all these suggestions. I'm not sure we can pursue them all, but if we can, we should.

by RandomNonviolence 2007-02-24 06:02PM | 0 recs
A good idea for BROADCAST media.

IMO it's a good idea for broadcast media, if only in that conservatives are all over talk radio, while liberals get more of their information over the radio. How awesome would it be if radio broadcasters had to pair rush Limbaugh up with some liberal.

The problem, though, is that you can't really divide issues into "two sides", I mean things in the world are complicated, and if you let your attacker pick your representative it's even worse then being silenced.  Just look at Hannity and Cooms.

by delmoi 2007-02-24 06:25PM | 0 recs
Re: The Fairness Doctrine

I hate the fairness doctrine; I think that compelling networks to broadcast certain speech and forcing "equality" runs counter to the values of the first amendment.

Now, media consolidation is a separate issue, worthy of being addressed via antitrust law.

by Adam B 2007-02-24 07:16PM | 0 recs
So You Think Corporations Are People?

It's nice to know how far to the right you stand.

by Paul Rosenberg 2007-02-25 07:20AM | 0 recs
Re: So You Think Corporations Are People?

It's odd to think that a strong belief in the first amendment and the values of the marketplace of ideas makes me a right-winger.  Given the diversity of views available across media, a fairness doctrine for network television is a paternalistic anachronism.

You want to make an argument in favor of putting this administration in charge of determining what's "fair"?  Make one.  Just calling me "far to the right" isn't an argument.

by Adam B 2007-02-25 07:58AM | 0 recs
It's Objectively True

Your position depends on regarding corporations (NBC, CBS, ABC, etc) as people possessing First Amendment rights, as opposed to actual flesh-and-blood people whose ability to be heard is readily squashed by such entities.  (For example, Jim Hightower, whose talk show had about a million listeners and growing, was fired within weeks of Disney buying out ABC.)

This is both objectively a rightwing position in terms of current power relations, and historically a rightwing position given its origins in American law, in the perverse conservative judicial activism of the Santa Clara County v. Southern Pacific Railroad decision.  The same judicial regime that detrmined the 14th Amendment (and thus, in our time, the First Amendment) applied to corporations in 1886, determined that it didn't apply to blacks in 1896 (in Plessy).

There is simply no way around this.  Your position is objectively rightwing, no matter which way you cut it.

by Paul Rosenberg 2007-02-25 08:38AM | 0 recs
Re: It's Objectively True

Jim Hightower has no "right" to be aired on any radio network at all.  If he does, why don't I?  

Moreover, I'm not saying that as a matter of law, that the fairness doctrine couldn't be enforced against corporations.  Instead, I'm arguing that as a matter of constitutional values, it shouldn't be.

And, fwiw, the Plessy court didn't determine that blacks weren't covered by the 14th Amendment, but that the 14th Amendment did not require integration of the races ("The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either...")  And they were wrong, of course.

You know who got Plessy right, of course -- Justice Harlan -- who wrote the Santa Clara decision, a decision which does not establish the proposition you believe it does, because that material is only in the headnotes, IIRC.

by Adam B 2007-02-25 08:50AM | 0 recs
You Keep Digging Your Hole Even Deeper

All the distinctions you're trying to bring into this discussion merely demonstrate what I'm talking about.  The rationalization and justification of corporate power over the principles of democratic self-governance.

Forget the Fairness Doctrine.  I say, revoke all corporate broadcast licenses, immediately.  They've had 73 years (since the Federal Communicaitons Act of 1934 was signed) to "serve the public interest, convenience and necessity," and they've failed utterly and completely.  Time to start over with a new model that actually might succeed.

by Paul Rosenberg 2007-02-25 12:52PM | 0 recs
Re: You Keep Digging Your Hole Even Deeper

If they demonstrate it, explain why.  I'm not arguing over your own ipse dixit.

by Adam B 2007-02-25 01:00PM | 0 recs
This Is A No-Brainer

It's clear that folks here have a very uneven understanding of the Fairness Doctrine, as well as media history.  Getting rid of the Fairness Doctrine was a key part of the longterm rightwing political strategy.  It enabled the rapid spread of rightwing talk radio, and reinstating it would put a serious crimp in their propaganda machine.

That said, no one in the media reform movement is proposing it as a panacea.  A number of other good ideas have been mentioned in the discussion here, and a successful media reform strategy has to include all of them and more.

Of course the right will fight all of them with everything they've got.  Anything that limits their ability to fill people's heads with lies is poison to them.  Media reform is absolutely crucial the future of politics.  They know it to a certainty.  We should know it, too.

by Paul Rosenberg 2007-02-25 07:33AM | 0 recs

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