December 1 2008
Protect freedom of speech: Bury the misnamed "Fairness Doctrine"
There are few principles more sacred in America than freedom of speech. The right to criticize the government is basic to any democracy. Our Constitution's First Amendment, which secures both free speech and religious liberty, is the most celebrated part of the Bill of Rights.
But while most everyone likes freedom of speech in the abstract, many people don't like criticism of themselves in particular. On the Left, there is no more hated foe than talk radio, which is considered dominated by conservatives. With the Democratic Party's success on November 4, some liberal activists and politicians want to revive the so-called Fairness Doctrine, a law that empowers politicians and bureaucrats to require "balance" in the broadcast media. This would be an open invitation to political abuse, using the rhetoric of "fairness" to silence one's critics.
Under the Fairness Doctrine, introduced in 1949, broadcasters were supposed to cover important controversies and include all viewpoints. The rule sounds good in theory, but never made sense in practice. After all, one person's concept of what constitutes "fairness" and the adequate articulation of "all" viewpoints will undoubtedly conflict with another's.
The government could never apply such a rule to print journalists. In fact, the U.S. Supreme Court overturned a Florida "right-to-reply" law which guaranteed political candidates newspaper space to respond to criticism. The unanimous court ruled that "Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate."
Nor could one imagine the Supreme Court upholding a "fairness doctrine" for the Internet. Web commentary can be unfair and inaccurate, but the decentralized nature of the medium and the broad participation of interested citizens, as well as credentialed journalists, are what generate its extraordinary energy and diversity.
The electronic media deserve similar constitutional protection. Unfortunately, however, since the electromagnetic spectrum is considered to be a public resource, the Supreme Court has given the government far greater leeway to regulate broadcasters. In upholding the Fairness Doctrine , the Court ruled that "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Yet the principal purpose of the First Amendment is to ensure an independent media. That requires freedom from government interference, even interference in the name of "helping" viewers and listeners.
Long-time CBS news anchor Dan Rather said that he recalls "newsroom conversations about what the [Federal Communications Commission] implications of broadcasting a particular report would be. Once a newsperson has to stop and consider what a government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost." In dropping the rule in 1987, the FCC explained that the Doctrine "actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists."
Moreover, even if the electromagnet spectrum once seemed "scarce," technology has since transformed the medium. Not only do we use the airwaves more intensively (UHF television and FM radio), but there are hundreds of additional stations available through cable and satellite service. (In contrast, newspapers are struggling and an increasing number of people live in one-paper towns.) Add magazines and the Internet to the media mix and it is obvious that Americans have more news and opinion options than ever before.
What makes proposals to reinstate the Fairness Doctrine particularly pernicious, however, is the fact that advocates unashamedly want to use it to shut down media outlets because of the opinions expressed, just as both Democratic and Republican administrations did in the past. Bill Ruder, an assistant secretary of commerce under President John F. Kennedy, admitted: "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." The Nixon administration employed similar tactics.
Talk radio is the most obvious target today, which is why the proposal has been characterized as part of a "Hush Rush" campaign. While the biggest names with the greatest listenership in talk radio are conservatives, it isn't as if liberals haven't tried. Networks like Air America have simply failed to prosper. That isn't the fault of the Right, however. It is especially ironic that those who portray themselves as progressive and tolerant are campaigning to silence their critics. Ironically, while liberals present themselves as victims of conservative talk radio, it is their domination of the mainstream media that most encouraged the rise of talk radio. The Right had little choice but to create a new forum.
Moreover, in recent years the Left has come to dominate the Internet as a tool of political organizing. But conservative bloggers are not advocating an Internet Fairness Doctrine. Rather than asking the government to penalize successful liberal websites, the Right is organizing to do a better job of competing in the future. Although some Democratic legislators, including House Speaker Nancy Pelosi, support reinstating the Fairness Doctrine, aides to president-elect Barack Obama indicate he opposes the move (though he supports other steps to promote broadcasting diversity). As president-elect, he should make clear that he stands for freedom for the entire media, broadcasters included.
As has been oft-stated, the answer to speech one doesn't like isn't less speech, but more speech. Today anyone with access to a computer can become a citizen journalist and reach millions of readers and viewers. The spirit of the First Amendment demands that we continue to keep the media-including broadcasters-free of government control.
Michelle D. Bernard, author of Women's Progress, How Women are Wealthier, Healthier, and More Independent Than Ever Before, is the president and CEO of the Independent Women's Forum and Independent Women's Voice and an MSNBC Political Analyst.