Tuesday, December 16, 2008


As general counsel to the Federal Communications Commission (FCC) under President Ronald Reagan, I initiated regulatory repeal of the ill-conceived Fairness Doctrine that had suppressed free speech over the airwaves since 1949 by penalizing the broadcast of controversial issues. FCC Chairman Newton Minnow surveyed the broadcast scene in 1961 when the doctrine was in its golden age. He described what he saw as a “vast wasteland.”

The FCC’s repeal, buttressed by its 1985 Report Concerning General Fairness Doctrine Obligations of Broadcast Licensees, was ultimately affirmed by the United States Court of Appeals for the District of Columbia Circuit in Syracuse Peace Council v. FCC (1989). During the ensuing 19 years, not a crumb of evidence has surfaced suggesting that controversial subjects have been shortchanged in the broadcasting marketplace of ideas - the evil that the Fairness Doctrine purported to address.

Yet House Speaker Nancy Pelosi, California Democrat, in the 111th Congress is planning to exhume and breathe new life into the doctrine by legislative fiat.

She will encounter a friendly Democratic president supportive of her gambit. Her motivation is transparent. The Democratic Party intends to brandish the Fairness Doctrine to marginalize the influence of conservative talk show hosts by making expression of their controversial views cost-prohibitive. Rush Limbaugh is their poster child. Democrats hope to better the instruction of their predecessors in making broadcasters shy from all conservative political viewpoints.

Liberal author Fred Friendly recounts in “The Good Guys, The Bad Guys and The First Amendment” (1976) the confession of Bill Ruder, assistant secretary of commerce under President Lyndon Johnson: “Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.” Martin Firestone, a Democratic Party operative, similarly advised the Democratic National Committee that “right-wingers operate on a strictly cash basis and it is for that reason that they are carried by so many small stations. Were our [Fairness Doctrine] 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 (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule.”

Mrs. Pelosi is not the first to take umbrage at my repeal initiative. In 1987, Sen. Ernest Hollings, South Carolina Democrat, orchestrated legislation that would have compelled the FCC to reinstate the Fairness Doctrine. The bill was passed by a 59-31 Senate majority and by a voice vote in the House, but was vetoed by President Reagan. The same legislation passed by the 111th Congress, in contrast, would be readily signed by President-elect Barack Obama. Alternatively, a Democratic-controlled FCC might give a rebirth to the Fairness Doctrine by regulation to circumvent a potential Senate filibuster of a legislative gambit. This predictable assault on free speech must be defeated to keep the government from policing the marketplace of political ideas to gain a partisan advantage.

The Fairness Doctrine required broadcasters to cover “vitally important controversial issues of interest in the community served by the licensees,” and to “provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues.” But key terms such as “vitally important controversial issues,” “reasonable opportunity,” and “contrasting viewpoints” are hopelessly ambiguous.

In the past, they meant whatever the FCC wanted them to mean. The FCC did not poll each community to ask for local opinion on what were “vitally important controversial issues.” Newspaper stories or public demonstrations might provide some evidence. But as the Fairness Report elaborated, government should not be in the business of evaluating programming content because it will look with a jaundiced eye at pioneering or dissident views. During Jim Crow, the government did not think black lynchings or cross-burnings were vitally important controversial issues. Impeaching President George W. Bush for high crimes and misdemeanors would not satisfy that benchmark today in the eyes of the FCC or Congress.

Even if baseline controversial issues could be non-arbitrarily identified, the FCC would be at sea in defining “reasonable opportunity” or “contrasting viewpoints.” Would one exhortation from a Demosthenes count for 100 from opposing high school drop-outs? Would support for a multibillion dollar government spending spree be a contrasting viewpoint to a proponent of a trillion-dollar extravaganza?

Under the repealed Fairness Doctrine, allegations of violations were easily concocted because fairness obligations were elusive. Broadcasters could not take fairness complaints lightly because transgressions could jeopardize multimillion dollar licenses or require them to provide free air time to complainants. To defend against alleged fairness violations, however, was prohibitively expensive because the law was extremely blurry. Accordingly, broadcasters minimized coverage of controversial issues to avoid fairness doctrine headaches.

Broadcasters, like newspapers and other non-broadcast media outlets like cable or satellite unburdened by the doctrine, display ideological prejudices. But the Fairness Doctrine proved a cure worse than the disease during the four decades before its repeal.

What the Supreme Court said of newspapers saddled with unconstitutional “right-of-reply” obligations in Miami-Herald Publishing Co. v. Tornillo (1974) is equally true for broadcasters who operate in a far more competitive industry: “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how government regulation of this crucial process can be exercised consistent with the First Amendment guarantees of a free press as they have evolved.”

Even if the Fairness Doctrine were revived, the Supreme Court might overrule its antiquated decision in Red Lion Broadcasting Co. v. FCC (1969) and find the government intrusion on the editorial control of broadcasters unconstitutional. But the Court should not be pushed to the test.

Bruce Fein was general counsel of the Federal Communications Commission, 1983-1984. He is author of “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”

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