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 http://www.ala.org/ala/oif/foryoungpeople/theoneunamerican/oneunamerican.cfm
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 http://www.museum.tv/archives/etv/E/htmlE/equaltimeru/equaltimeru.htm
Martin, K. (2007, July 23). mikepence.house.gov. Retrieved July 25, 2008, from http://mikepence.house.gov/UploadedFiles/Kevin%20Martin%20Letter%207-23-07.pdf
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 .

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