Wednesday, August 6, 2008

The Fairness Doctrine

The Fairness Doctrine was a policy of the Federal Communications Commission (FCC) that started in 1949 and placed broadcast guidelines on private radio and television stations regarding content. This policy was an attempt to prevent one-sidedness of ideas given the limited number of frequencies available to the public. The Fairness Doctrine required that for each minute of coverage on a potentially controversial issue, an equal amount of time must be given to the opposing view, thereby limiting agenda driven social influence by the media. The Fairness Doctrine was later dissolved by the FCC in 1987 after deeming it unnecessary given the large amount of growth in radio and television channels, and the broad range of alternative media options that had since become available. (Hershey, 1987)

Though the abrogation of the Fairness Doctrine greatly eased restrictions on radio and television, it by no means was an end to content regulation. The equal opportunity provision of the Federal Communications Act, better known as the equal time rule, remained relatively unchanged. The equal time rule requires that radio, television, and cable stations treat legally qualified political candidates equally in regard to selling or giving away airtime. (Klieman, Museum of Broadcast Communications)

There is now discussion to bring back the Fairness Doctrine to help broaden the ideas presented in the media, particularly on talk-radio. On the surface the Fairness Doctrine seems not only fair, especially given the name, but also reasonable. After all, frequencies are limited, and the public needs to hear both sides of a given issue lest a dominant view become the dominant dialog. To fully understand this complex issue, three key questions must be explored. First, what important developments have been made since the 1940s in communications? Second, who would decide what is objective and what is partisan opinion? And third, can the Fairness Doctrine actually achieve its goal of stimulating broader dialog in the media? By examining these questions we can see that the Fairness Doctrine is not only unnecessary, but also unconstitutional.

While the Fairness Doctrine at its inception seemed necessary given the limited means of communication at that time, much has changed since it was issued in 1949. Thanks to the technological revolution, society today does not face those limitations. Internet news and blog sites, Cable TV, e-mail newsletters and periodicals, satellite radio, and others have been added to the already established newspaper, television, and radio mediums. In fact, in 1987 when the Fairness Doctrine was dissolved there were more than 1,300 television stations and over 10,000 radio stations in America, all subjected to restriction by the FCC through the Fairness Doctrine. This in contrast to only 1,700 daily newspapers that were exempt from these restrictions. (Hershey, 1987)

With other forms of communication now more widely available, the Fairness Doctrine has become even more unnecessary. Kevin Martin, the current FCC Chairman wrote in an open letter to Representative Mike Pence of Indiana, “Indeed with the continued proliferation of additional sources of information and programming, including satellite broadcasting and the internet, the need for the Fairness Doctrine has lessened ever further since 1987.” (2007)

The second issue that arises with the Fairness Doctrine is the question of who would monitor the media and distinguish between opinion and objectivity. This of course would be the government through the FCC, a patent infringement of the freedom of speech promised by the first amendment of the Constitution. Though the intention of this infringement would be to provide “fairness”, it is tantamount to government censorship of ideas and precisely what the American founders fought against. As Thomas Jefferson asserted, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” (1900)

If the President of the United States appoints the head of the FCC, and the FCC regulates the media content, who is actually regulating the media? This concept is elementary; the more regulatory power granted to the FCC, the more regulatory power ultimately in the hands of one person. With the Fairness Doctrine granting the FCC the power to refuse broadcast licenses to companies who do not comply with FCC regulation, the government would have the power to silence any opposition it deemed “unfair”. Fairness is a high value, but fairness is in the eye of the beholder; this is why freedom must supersede fairness.

By no means am I asserting that our government is tyrannical, but a free press is our most powerful safeguard against the development of such a government. As Justice William Douglas once said, “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.” (1951)

Perhaps the most devastating argument against the Fairness Doctrine is that it is incapable of achieving its goal. While the Fairness Doctrine was designed to promote open debate and to present a broader range of ideas to the public, the opposite was observed during its practice. Anytime a broadcaster covered a potentially controversial story, they risked being forced to give away an unknown amount of air time to opposing views. This is relatively easy to comply with if there are only two sides to an issue, but this is rarely the case. “There is more than one way to skin a cat”, does not imply that there are only two ways. Apprehensive of facing either legal battles with special interest groups seeking what amounts to free air time, or penalties from the FCC that could include the loss of their license, broadcasters began to avoid potentially controversial issues. According to Diane Killory, the FCC general counsel at that time, these policies, “Completely frustrate the goal of the doctrine to foster robust debate and diversity of views.” (Hershey, 1987)

This idea that government restriction can produce fairness is predicated on the idea that the government is fair minded; however, as previously mentioned, fairness is quite subjective. Recent comments by Republican Whip Trent Lott highlighted this problem. After a 2007 immigration reform bill died on the floor of the Senate, Lott lamented in an interview, “Talk-radio is running America. We have to deal with that problem.” (Zeleny, 2007) This would be a difficult position to defend given the fact that talk-radio hosts overwhelmingly support school vouchers, greater restrictions on abortion, and the fair tax just to name a few; however, these are conspicuously missing from any current major legislation. As Lott later said of talk-radio in a particularly eloquent moment, “When they’re with you, it’s great. When they’re not, it’s not good.” (Murray, 2007) Truer words may not have been spoken, but that is the nature of the press, not a problem to be dealt with.

As has been laid out in these arguments, the Fairness Doctrine was justly repealed by the FCC. The developments in communication now provide the public with broad access to ideas and have clearly rendered the Fairness Doctrine obsolete. Further, reinstating the Fairness Doctrine would be neither logical, given its inability to achieve its goal, nor constitutional, given its method of enforcement. An unrestricted press, as imperfect as it may be, is the only means by which people can compete in the arena of ideas. Our founding fathers understood the temptation of government suppression which is why the freedom of the press transcended law and was made a constitutional right. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” Fisher Ames, member of the first Congress of the United States, was correct in his description of the press when he said it is, “A precious pest, and a necessary mischief, and there would be no liberty without it.” (1809)

Works Cited
Ames, F. (1809). Works of Fisher Ames. T.B. Wait.
Douglas, W. O. (1951, December 3). American Liberty Association. Retrieved July 25, 2008, from
Hershey, R. D. (1987, August 5). New York Times. F.C.C. Votes Down Fairness Doctrine In A 4-0 Decision .
Jefferson, T. (1900). The Jeffersonian Cyclopedia. (J. P. Foley, Ed.) London, England: Funk & Wagnalls Company.
Klieman, H. (n.d.). Museum of Broadcast Communications. Retrieved 7 12, 2008, from
Martin, K. (2007, July 23). Retrieved July 25, 2008, from
Murray, J. W. (2007, June 20). Republicans Hearing Static From Conservative Radio Hosts. Washington Post .
Zeleny, R. P. (2007, June 15). Senate Leaders Agree to Revive Immigration Bill. New York Times .

Monday, May 12, 2008

Affirmative Action and Discrimination

Affirmative action entered the public forum in 1961, when John F. Kennedy issued an executive order (1) creating the, President’s Committee on Equal Employment Opportunity. This committee was directed, “immediately to scrutinize and study employment practices of the Government of the United States, and to consider and recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination within the executive branch of the Government.” (2) While the focus of this executive order was primarily on government contractors, the administrations purpose in forming the EEO was to expand nondiscrimination into US law. Three years later in 1964, the civil rights act was passed into law and the Equal Employment Opportunity Commission was formed.

The EEOC was to become the leading enforcement agency of civil rights laws. Though it lacked any real enforcement power, (such as the ability to fine or jail those found in noncompliance) the commission did make progress in desegregation. It focused on defining discrimination in the workplace, assisting private litigants in federal courts, and seeking conciliation with employers to desegregate their companies. The EEOC also expanded its efforts into educating the public, seeking voluntary compliance through print and video media, as well as hosting educational conferences. (3)

Both the necessity for and the good produced by affirmative action at its conception is undeniable. Almost 100 years after the civil war, and nearly 50 years after the nineteenth amendment was ratified (the amendment allowing women to vote), inequalities remained in many companies, educational institutions and in many areas of society. Without laws to protect the rights of minorities, and some form of accountability for institutions that violated those rights, change did not seem to be on the American horizon. The goal of affirmative action at its establishment is clear, the question remains however, has it worked?

There are a multitude of elements and arguments to consider in answering this question, however for the sake of brevity I will explore the three that I believe are key to illuminating this issue. These are: Can affirmative action achieve its goal of equality? Should affirmative action have an expiration date? And, What is the logical outcome of affirmative action? I will be focusing primarily on race-based affirmative action since to discuss it in its entirety would take a book not a paper. This is by no means an exhaustive study, but will serve as a foundation for the consideration of this important issue.

To begin, an important distinction needs to be made between two key terms that are sometimes conflated in this debate; nondiscrimination and affirmative action. Nondiscrimination is self-definitional, and is simply the act of not discriminating based on a person’s race, sex, religion, politics, etc. This is foundational to the Constitution, central to our American values, and is held in my estimation to be a nonnegotiable moral necessity. Affirmative action, which is sometimes wrongly used interchangeably with nondiscrimination, is actions taken to enforce nondiscrimination.

On the first question, can affirmative action bring about equality? I would argue that history has responded with a resounding NO. While affirmative action began nobly as a drive toward equality, it has become something very different. Instead of considering all people as equals, it divides people into categories based on all of the things that it contends at the same time people should not be judged on. This can be seen in many universities that maintain “quotas” for student enrolment. (While quotas are illegal in the US, the term is sometimes grayed by points systems that award students bonus points on applications based on race.) In short, it seeks to achieve racial equality through inequality. Further, if race is not an issue then why is race a question on virtually every college application?

To the next question, should affirmative action have an expiration date? The affirmative action that was created in the sixties to desegregate America has long since disappeared, and the affirmative action that has emerged in its place is divisive and should therefore expire. Equality through discrimination is a contradiction in terms, and that is what affirmative action has become today. The goal of affirmative action to protect the rights of minorities through state and federal laws has been achieved, but instead of fading into the background as progress is made, its advocates continue to divide America. Courts have gone from trying cases of discrimination, to cases of reverse discrimination. Instead of minimizing differences affirmative action serves only to magnify them, fanning the small flames of racial tensions that still exist.

Admittedly, there is much disagreement on what level or racial tension does exists today, and on this matter I believe good people can differ. Some like Rev. Jeremiah Write and Rev. Jesse Jackson view racism in America as endemic, while others like Justice Clarence Thomas and Sen. Barack Obama see racism as the aberration. Racism has always and likely will always exist to some degree, the question is, does it exist to a level that warrants affirmative action? I would argue that it does not, and that continuing focus on unimportant differences like race only serves to divides people.

To the last question, what is the logical outcome of affirmative action? Following affirmative action to its logical conclusion is a perpetuation of division. Affirmative action has suffered from what is known as the law of unintended consequences. What its founders intended to use as an axe to cut down our long past of racism, has become a wedge that threatens to keep us divided forever. Affirmative action and equality are mutually exclusive, and the inequality that it produces breeds racism. If preferential treatment is given to certain groups, how is one to view a person from that group who achieves success? The question in the back of many peoples' minds is was their success earned, or given? Preferential treatment not only devalues the success of minorities, but also sends a mixed message. Out of one side of our mouth we say that we are equal, and out of the other side that minorities can't achieve their goals without a handout.

On an emotional level affirmative action can be well argued as a moral good, but on an intellectual level its outcome is contrary to its intentions. This begs the question, what chance do we have at equality if we continue to focus on our differences? If equality is truly our intention, then it will only be fully realized by truly treating people as equals.

(1) Presidential E.O. 10925
(2) E.O. 10925 part 2 section 201

Thursday, April 24, 2008

Just War Theory

Okay I realize this is a really long post, but I plan to continue to post work from class to keep some fresh content and conversation starters up.

Just War Theory is a series of ethical guidelines designed as a moral framework for both when war can be waged, as well as how war ought to be conducted. It addresses questions such as: how much force is appropriate; who can wage war; who are legitimate targets; and, what are just causes for going to war? Just War Theory is not a set of enforceable rules like speed limits and building codes, but rather reasonable moral principals that attempt to circumvent unnecessary conflict and restrain excessive force in warfare (Moseley, 2006). As an idea, Just War Theory is as old as warfare itself, growing from simple codes of honor among soldiers, to a defined compendium of ideas that can be held up as an example as well as offer accountability to all nations.

In Just War Theory, “Just” refers to the moral argument for or against war; that is, to justify a war one must show it to be morally defensible. Therefore, before an argument can be made for or against war as it relates to Just War Theory, the question, “what is moral?” must be answered.

Philosophers, humanitarians, and clergy have debated morality for centuries. These scholars have put forth a multitude of arguments concerning ethics by either trying to show the source of morals, (such as God or culture) or by presenting and defending a system of ethical thought. Since the existence of God is not universally accepted, “because God said so” is not a satisfactory answer to moral questions. Furthermore, given the subjective nature of cultures, morals based on the opinion of a given culture are equally insufficient. This would lead to all kinds of self-contradicting ideas that would essentially reduce morals to a question of geography.

Given that not all people believe in God and are not all from the same culture, a reasonable ethical system of thought is the only viable authority of ethics that could be universally accepted. I will briefly highlight two of these ethical system, Utilitarianism and Kantian ethics, which I believe to be incomplete in themselves; and present wisdom, or Objectivism, as a necessary part the ethical puzzle. I will attempt to show that it is only with wisdom that ethical questions, such as the ones posed in Just War Theory can be answered without leading to moral contradiction or complete subjectivism.

The first ethical system, Utilitarianism, focuses on the outcome of actions and holds that one must act according to that which will produce the greatest amount of happiness for the greatest number of people (Palmer, 2008). This methodology seems very sound because it requires that you take into account others happiness equally with your own. It would be hard to defend an ethical system that was completely self-focused as it could lead to a very subjective morality. (What ever brings me the most happiness.) The problem with Utilitarianism, however, lies in its open ended and sometimes counter intuitive nature.

Take for example the hypothetical situation of a wealthy terminally ill woman, whose estate will be left to her ten estranged children. Strictly adhering to utilitarian ethics, it would be moral to take her life even against her will, because her unhappiness would be far outweighed by the happiness of her children. No one would consider the killing of an innocent person as moral, but with the utilitarian system, if the taking of an innocent life would cause more happiness for more people, then it would be considered moral.

Now apply these principles to Just War Theory. Consider for instance the size and population of Israel, about 6.4 million, (Central Intelligence Agency, 2007) compared to its many larger neighboring countries that want it wiped off the map (MSNBC, 2005). How much “happiness” could be produced with the destruction of Israel? How much peace would be produced in that region, and in turn produce more happiness? With Utilitarianism, the greatest amount of good for the greatest number of people is the moral measuring rod. This could lead to very cold and brutal war, because if great good could be accomplished, great evil could be justified. Now I am by no means suggesting that to ascribe to Utilitarianism is to be cold, after all even the strictest utilitarian is still human. I simply use these as examples of where Utilitarianism, under certain circumstances is insufficient in answering the complex issues raised in Just War Theory.

The Second ethical system I would like to explore is Kantian ethics. This system argues that it is not the outcome of your actions, but rather the intention behind them that are to be considered moral or immoral. To consider something as moral, based on the outcome of a situation is to lower ethics to simple subjective opinion. This nonconsequentialistic view of ethics is based on the idea that if something is truly moral, it must be universally moral (Palmer, 2008). As Immanuel Kant (1785) stated:
"There is, therefore, only one categorical imperative. It is: Act only according to that maxim by which you can at the same time will that it should become a universal law."

This certainly solves the drastic conclusions of Utilitarianism, because no one would universally allow the killing of the infirm or the destruction of so called, “problem” countries based on a majority benefit analysis. Where Kantian ethics falls short however, is under many circumstances its idealistic intentions can lead to a complete divorced from reality.

Let us apply this intention based categorical imperative to the, “give peace a chance” ideal. Many people who are completely opposed to war argue that there cannot be morality in war, because war by definition is immoral. In general, this argument against war holds that war is the violent taking or defending of ones land or resources, and violence is simply immoral. Therefore, if every country destroyed there weapons and swore off war as an option for resolving conflict, the world would be a more peaceful place. This seems to fit the categorical imperative and indeed would even satisfy a utilitarian objective; however, history and reality do not allow such naiveté to be considered very seriously. Violence has been around since the beginning of man and seems to be here to stay. To ignore violence or to not oppose it, (even violently) is to invite the worst of society to rule. As Cesare Beccaria (1764) the 18th century Italian criminal justice reformer stated: "False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crime." Because of the existence of evil, what can sometimes be used for evil must also be allowed. No matter how unpleasant, war is a necessary evil.

Neither a Utilitarian, nor a Kantian conception of ethics are adequate in answering the questions raised in Just War Theory because they lack the recognition of wisdom as a necessity to answer these questions. These systems attempt to break morals down into a mathematical equation, and assert that if you simply “solve for x” you can come to a moral conclusion. While “the greatest amount of good for the greatest number” creates a solid starting point for ethical thought, it is not sufficient for dealing with the complex issues of war. Without the wisdom of experience, and the consideration of history and human nature, we are left with a problem that simply has too many variables. As modern philosopher and founder of the philosophy of Objectivism, Ayn Rand (1982) stated: "Without abstract ideas, you would not be able to deal with concrete, particular, real-life problems. You would be in the position of a newborn infant, to whom every object is a unique, unprecedented phenomenon. The difference between his mental state and yours lies in the number of conceptual integrations your mind has performed. You have no choice about the necessity to integrate your observations, your experiences, your knowledge into abstract ideas, i.e., into principles. Your only choice is whether your principles are true or false, rational or irrational, consistent or contradictory." Rand argued that these rational integrations of our experiences do not provide an answer in themselves, but rather that they serve to guide us to an answer. Contrast this with the aforesaid equation style ethical systems that strive to find moral absolutism, but lead to moral contradiction.

To cast additional light on this concept, consider some of the possible scenarios in a wartime situation. In Iraq for instance, the enemy is often disguised and hiding among civilians. With the question raised in Just War Theory, “who are legitimate targets in war?”, this becomes a very complicated issue. How does one distinguish between friend and foe in these situations? War is often ugly and the battlefield is sometimes unclear. This creates a problem not only for the soldier staring down the sight of a gun, but also for the generals that have to make the decision as to where to strike the enemy. To attack the enemy while they are among civilians will most certainly lead to civilian casualties, but to take no action could ultimately lead to casualties of greater proportions.

The questions raised in Just War Theory cannot be answered with equation style ethics because the variables can never be fully known. We are therefore left with making the best decision we can with the information that we have, utilizing the wisdom of our experiences and guided by the principals defined in these ethical systems.

Some would argue that this wisdom directed ethical system is moral subjectivism; however, I am not arguing that this is the answer to finding moral absolutes. Given that all the facts in a situation can never be known, I do not believe moral absolutism can ever be reached. Much like a mathematical problem, the ability to solve an equation is contingent on all of the variables being present. However, in war there are an infinite number of variables that are simply unknowable. This is not a surrender to moral subjectivism, but rather recognition that some level of subjectivism is inescapable. Only through careful examination of the available facts, and consideration of the principles put forth in Just War Theory can we come to a defensible moral conclusion.

Sunday, April 20, 2008


Okay, since I am having trouble finding time to write, I have decided to start posting some of my work from my ethics class. Ethics is ultimately at the heart of my preoccupation with life, so it only seems fitting, (not to mention convenient.) and should provide some good topics for discussion. Let me know what you think.

Egoism is generally divided into two basic concepts: Descriptive, or psychological egoism, and normative, or ethical egoism. Psychological egoism is a theory about the human condition, and holds that people are by nature selfish and driven only by personal gain. Though people at times help each other and act unselfishly, according to psychological egoism it is only out of a selfish hope for a future payoff. This theory also excludes even the possibility of altruism, suggesting that acts of altruism are motivated only by the desire for the feeling of self-gratification, and are therefore ultimately selfish acts. This theory is unfortunately impossible to prove or disprove however, since a persons true motives cannot be known. Even if we think we know our own motives, there is always the possibility of some level of self-delusion possibly driven by guilt over our own selfishness. While selfishness is often an obvious driving force, and as much a part of the human condition as suffering, I believe it is a rather bleak perception of humanity, and that there is insufficient evidence to assert that we are 100% driven by selfishness.

The other form of egoism, ethical egoism, holds that we are not necessarily selfish by nature, (though it does not exclude this as a possible fact.) but rather that we ought to be selfish. Ethical egoism postulates that it is not only moral to act in ones own self interest, but that it would be immoral to expect someone to act contrary to their own interests. There are many arguments for this ethical theory, however many are built on the perceived notion that our nature is selfish. This falls short of a convincing argument that we ought to be selfish however, since as David Hume wrote in his, Treatise on Human Nature, “You cannot derive an ought from an is." Ultimately, ethical egoism seems to be more of an attempt to justify human nature, rather then an attempt to answer what is moral.