On the lurking threat to the freedom of the airwaves.
The Left has watched uneasily as power drains away daily from the CBS Newses and the Time magazines of the liberal mainstream media and flows toward a more politically pluralistic array of new media alternatives that range from (mostly) conservative talk radio to (Fox-dominated) cable news to the ceaselessly expanding (thoroughly bi-partisan) Internet. And make no mistake: liberals want to snuff out this exciting, democratic world of analysis and debate and return to the good old days, when you got up in the morning with The New York Times and had dinner with Dan Rather—and basically kept quiet while your elite betters told you what to think. Impossible, you say. But the Left means business on the media front, and lawmakers are cooking up a host of new regulations to drive incorrect (right-of-center) opinions from the public sphere. In its highest-profile effort to shut down the political speech it doesn’t like, the Left is working to restore the Fairness Doctrine or some kind of regulatory analogue. The effects would be seismic—nothing less than wiping out most political talk radio.
The Federal Communications Commission’s Fairness Doctrine, which became a formal agency regulation in the late 1940s but had been in effect since the late 1920s, required broadcast stations—radio first, then television—to provide “opportunity for the presentation of contrasting viewpoints” on controversial issues. The language sounds anodyne. But in practice it had a huge influence on how broadcasters operated. Broadcasters who didn’t follow the rules could incur FCC fines, be forced to give free time to voices that regulators believed had been treated unfairly, and even lose their licenses. Tapes and other evidence in hand, FCC staff investigating complaints would “pull out stopwatches,” Jim McKinney, a former head of the commission’s Mass Media Bureau, recently recalled. “They would start timing how many minutes and seconds a broadcaster devoted to the issue of public importance. And then, depending on how that came out, they would either close the investigation, or they would prepare an item for the commission to take an enforcement action.”
The justification for this meddling: a worry that partisan views could dominate what was then a much more limited broadcast spectrum, which the government felt it had to divide up, ostensibly with the public interest in mind. The doctrine, writes the former FCC chairman Dennis Patrick and the economist and media scholar Thomas Hazlett, rested “on the presumption that government regulators can coolly review editorial choices and, with the power to license (or not license) stations, improve the quantity and quality of broadcast news”—an erroneous presumption, since every regulatory move that the commission made triggered a political eruption.
The civil libertarian Nat Hentoff remembers what it was like to be a broadcaster in the old days. “I was in radio under the reign of the Fairness Doctrine, at WMEX in Boston in the 1940s and early Fifties,” he recalls in a talk at Hillsdale College, noting that he would occasionally offer political opinions on air, including on his music programs. “Suddenly Fairness Doctrine letters started coming in from the FCC and our station’s front office panicked. Lawyers had to be summoned; tapes of accused broadcasters had to be examined with extreme care; voluminous responses had to be prepared and sent. After a few of these FCC letters, our boss announced that there would be no more controversy of any sort on WMEX. We had been muzzled.”
The wielding of regulatory might for partisan ends really took off in the 1960s, as the former CBS president Fred Friendly documented in his 1975 book, The Good Guys, the Bad Guys and the First Amendment. The Democratic Party official Bill Ruder later acknowledged: “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 costly to continue.” The party activist Martin Firestone elaborated on the strategy in a confidential 1964 report to the Democratic National Committee, describing the 1,035 letters that the campaign wrote to conservative stations, generating 1,678 hours of free time. The stations, mostly rural, were small and cash-starved, so they proved easy to browbeat. “Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome … and would start dropping the programs from their broadcast schedule,” Firestone wrote. A DNC staffer added: “Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts.”
The Nixon administration went after its critics even more thuggishly. Nixon staffers, recounts the journalist Jesse Walker, threatened to strip the licenses from networks whose coverage of their boss they deemed unfair. Indeed, such harassment “became a regular item on the agenda at White House policy meetings,” Hazlett observes. During the Vietnam War protests in the autumn of 1969, Nixon ordered his staff to take “specific action” against network news coverage twenty-one separate times. Facing critical Watergate coverage in the Washington Post three years later, Nixon told aides that the paper would have “damnable, damnable problems” if it didn’t back off: “They have a television station … and they are going to have to get it renewed,” he said darkly. Fairness Doctrine challenges didn’t have to win to have an effect. In 1981, Walker points out, the Milwaukee mayor Henry Maier called in the FCC after a local TV station blasted his administration in editorials. The station won in both the FCC and, later, the courts, but it had to shell out considerable legal fees.
All this monitoring and bullying seems unconstitutional. After all, the First Amendment says that Congress must make no law that abridges freedom of speech or the press. But the nation’s highest court long believed otherwise when it came to the airwaves. In 1943, the Supreme Court first established the legal grounds for using a “public interest” or “fairness” criterion in regulating broadcasters in NBC v. United States. Writing for the majority, Justice Felix Frankfurter posited that scarce frequencies plus a private marketplace equaled a “cacophony of competing voices,” with each electronic agent fighting to drown out the other; the government thus had the duty to ensure that all proceeded in an orderly fashion.
The obvious rejoinder to Frankfurter is capitalism. Establishing property rights in frequencies would have regulated scarcity far more efficiently than government regulation could, and without the attendant risks of political abuse. It could have been thus. Commercial radio had arrived in late 1920 and in a free market sprouted rapidly, with hundreds of stations transmitting by the mid-1920s. The Commerce Department recognized broadcasters’ exclusive rights with few complications, using a straightforward first-come, first-served system. Unfortunately, in 1926, the U.S. attorney general “upset the applecart,” as Hazlett puts it, by nixing the department’s power to grant rights in the ether. From 1927 on, the political sphere had dominion over broadcasting.
In an influential circuit-court decision, Judge Robert Bork later shredded Frankfurter’s scarcity argument. “It is certainly true that broadcast frequencies are scarce,” Bork wrote, “but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media.” All economic goods are scarce, Bork reasoned—“not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wishes to publish a newspaper, or even a pamphlet, may do so.” Why would scarcity be irrelevant in one case and essential in the other? The number of broadcast TV stations has doubled since 1970 and now exceeds the number of daily papers, yet we don’t have a Fairness Doctrine governing The New York Times.
Regrettably, the Supreme Court succumbed to the faulty reasoning on scarcity. In 1969, the court determined in Red Lion v. FCC that scarcity reigned and that the Fairness Doctrine itself was constitutional. The case involved a Pennsylvania station that in 1964 broadcast a polemic by a populist preacher named Billy James Hargis excoriating Goldwater: Extremist on the Right, a book authored by a sometime Nation writer, Fred Cook. DNC monitors who were enrolled in Ruder’s harassment campaign drafted Cook to file an FCC complaint demanding on-air response time. The commission ordered WGCB to let Cook respond, the station refused (though it offered to sell him airtime at the same rate that Hargis had paid), and the whole mess wound its way to the Supreme Court.
The court ruled unanimously for the FCC and affirmed Frankfurt’s dubious scarcity rationale. But it also qualified its backing of the Fairness Doctrine. If the doctrine had “the net effect of reducing rather than enhancing the volume and quality of coverage,” if it had a “chilling effect” on speech, the court might rethink its constitutionality.
As the court should have seen at the time, the doctrine was muzzling political speech. Its existence made it hard to program political talk radio or television in today’s opinionated Limbaugh/Levin/O’Reilly sense. Any station that ran a show like Limbaugh’s would also have to run a left-wing alternative, even if sponsors were scarce, as has recently been the case with ratings-wreck Air America and other efforts at liberal radio. Too risky, most execs concluded, and they kept opinion programs off the air in favor of what the journalist Bill Monroe described as “timid, don’t rock the boat coverage.” In 1980, radio talk shows of any kind numbered fewer than 100 nationwide.
In the mid-1980s, a revolution occurred: Reagan’s free-market-minded FCC stopped enforcing the Fairness Doctrine and then jettisoned it entirely in 1987. Because the number of cable and satellite television and FM radio stations had shot up, the doctrine had lost even the implausible “scarcity” rationale. And it was clear to the commissioners that the doctrine was chilling free speech, too. “When you drop the requirement for free response time, when you remove the obligation to present significant contrasting views, when you remove the regulatory and financial risk associated with controversial editorials, when you stop taxing speech, you get more of it,” Patrick, the FCC chairman at the time, observed in a 2007 speech.
In fact, Patrick regarded the Fairness Doctrine as “unconstitutional on its face,” though Red Lion has never been overturned. Broadcasters, he argued, are part of the press: “To suggest otherwise is to suggest the framers of our constitution intended to protect from federal coercion only those who used the technology of the day—a proposition absurd on its face.” He continued: “Broadcasters—as citizens and as members of the press—should be able to say what they think without regulatory sanction. If they choose to represent one perspective, so be it.”
In June 1987, Congress tried to reimpose the doctrine legislatively, but Reagan vetoed the bill, which had overwhelming bipartisan support. (Many Republicans believed in a regulated media back then as the only way to fight liberal bias; some still do.) “The framers of the First Amendment,” the president maintained, going to the core constitutional question, “confident that public debate would be freer and healthier without the kind of interference represented by the ‘Fairness Doctrine,’ chose to forbid such regulations in the clearest terms: ‘Congress shall make no law … abridging the freedom of speech, or of the press.’”
That the doctrine chilled free speech became indisputable in the immediate aftermath of its demise. As a 1997 study by Hazlett and David Sosa charted, AM radio, freed from its shackles, suddenly exploded with news programming and political talk shows. Such “informational” broadcasts expanded from 7 percent of all AM programming to 28 percent just eight years after the Fairness Doctrine’s end; on FM, the increase was from 3 percent to 7 percent. The tube soon featured lots more news coverage and opinion, too. Today, around 1,500 radio stations feature a talk or news format—and the vast majority broadcast conservative, libertarian, or populist voices, as listeners look for an alternative to a liberal mainstream press.
The Left wants more than ever to remove this menace to correct—that is, liberal—thinking. An early congressional attempt in 1993 to bring back the Fairness Doctrine, the “Hush Rush” bill, was reacting to the sudden emergence of Rush Limbaugh and other conservative radio hosts as seismic forces. The bill withered after the Newt Gingrich-led Republicans captured Congress the next year, a victory that many claimed Limbaugh had helped bring about. For a while after the defeat, liberals sought their own Rush—beginning with the radio shows of Jim Hightower and Mario Cuomo in the 1990s and reaching a fever pitch with the heavily bankrolled and much celebrated rollout of Air America in 2004. But liberals have, as noted, cratered on radio.
Over the last few years, Democratic politicians and activists have started talking about restoring the Fairness Doctrine again. Fairness mandates would force liberal radio to accommodate “the other side,” of course, but getting a lot of right-leaning broadcasts off the air would be more than worth it. They would also curb the sales of conservative books, which, often snubbed by mainstream media outlets, depend heavily on the talk-radio circuit to find readers.
A new “fairness” campaign kicked off in 2004, when Media Matters for America, the George Soros-linked liberal watchdog, started an online campaign to encourage Congress to bring back the Fairness Doctrine. “Tired of imbalanced political discourse on our airwaves?” asked the group’s head, the conservative apostate David Brock. “By restoring a diversity of fact and opinion to programming, Fairness Doctrine legislation restores a concept that has been lost since the 1980s—that because the public owns the airwaves, the public is entitled to be adequately informed by the broadcasters of news and opinion.” The campaign gained little traction at a time when Democrats controlled neither House nor Senate. Yet given Media Matters’s connections not just to Soros “affiliates” like MoveOn.org and the New Democratic Network, but also to the Clintons—the former Bill Clinton chief of staff John Podesta helped Brock get the group up and running—this early effort was influential despite receiving little notice.
In 2007, though, the liberal push for a new Fairness Doctrine finally grabbed headlines. The Oklahoma senator James Inhofe ignited a hullabaloo by noting that he’d once overheard Hillary Clinton and Barbara Boxer discussing a “legislative fix” for talk radio. The two senators denied it, but Senator Diane Feinstein quickly weighed in, saying on Fox News that talk radio was too “explosive,” pushing people, as she put it, to “extreme views without a lot of information.” Feinstein added that she was going to look closely at restoring the doctrine. John Kerry wasn’t so cautious: “I think the Fairness Doctrine ought to be there,” he said bluntly.
Al Gore is another leading Democrat who thinks we need to re-regulate the airwaves. “Unless broadcasters take steps to voluntarily balance their programming, they can expect a return of fairness rules if Democrats keep control of Congress and win the White House” in 2008, observes Craig Crawford, a political analyst for Congressional Quarterly and NBC.
The push for “fairness” would be unlikely to stop with equal time rules, observes The Wall Street Journal’s John Fund. “Al Franken, the liberal former Air America host who is now running for the Senate in Minnesota, is already slipping into the role of potential legislative censor of his old industry,” Fund writes. “You shouldn’t be able to lie on the air,” Franken said in early 2007. “You can’t utter obscenities in a broadcast, so why should you be able to lie? You should be fined for lying.” But who says what a lie is?
Consider in this light a 2007 study on talk radio from the liberal Center for American Progress (CAP), a think tank founded by Podesta. Contending that the popularity of conservative voices on the airwaves results not from listener preferences but instead from a “structural imbalance” in the marketplace that has led to too much big corporate control of radio, the study proposed righting that imbalance (and getting more liberals on air) by tightening ownership regulations and ensuring “greater local accountability over radio licensing.” This would guarantee lots more public meddling in the radio marketplace. But the most preposterous element of CAP’s regulatory agenda was the requirement that commercial radio owners “who fail to abide by enforceable public interest obligations” (whatever that means) would have to pay a penalty fee to public broadcasting. Thus not only would radio operators— struggling already against many new media competitors—find themselves tangled in a thicket of new content regulations; they’d also face the threat of bankrolling their publicly owned competitors on NPR. This is just a sneaky version of a new Fairness Doctrine, making all the more troubling Barack Obama’s proposal to “clarify the public interest obligations of broadcasters who occupy the nation’s spectrum.”
Is the Supreme Court to likely to reverse Red Lion? New justices John Roberts and Samuel Alito have shown admirable First Amendment sensitivity, as have Clarence Thomas and Antonin Scalia. But other judges on the divided court are far less clear. Nor is it obvious how the politics of “fairness” would play out with the public. A 2007 Rasmussen poll found that 41 percent of those polled supported the idea of requiring broadcasters to offer “equal amounts of conservative and liberal political commentary” and 41 percent opposed. Thirty-four percent wanted the government to regulate websites for political content. The language of “fairness” is beguiling, and the issues are complex.
To get an idea of what the Democrats really mean by “fairness,” though, consider what happened recently when Republican Senator Norm Coleman of Minnesota tried to offer an amendment to a bill that would have banned the FCC from reinstituting the Fairness Doctrine by regulatory fiat. Rather than letting the measure be debated by the entire Senate, Democratic legislators blocked it from reaching the floor. With the door left open, it remains to be seen what the Democrats’ longterm agenda is regarding “fairness” in the media.