What’s 'Fair' About the Fairness Doctrine?

The rhetoric over the need for new government regulations assuring fairness in the media is heating up, and Americans who don't want the government to be the speech police need to tune into the debate.

While not new, this idea was resurrected this year by Ohio congressman and presidential aspirant Dennis Kucinich. Now several prominent Democrats in the Senate are recalling fondly the time when the Fairness Doctrine was in place.

No doubt it's the dream of recapturing the White House that has spurred these politicians to consider codifying the doctrine, which as Federal Communications Commission policy from 1949-1987, mandated that the opposing viewpoints of a divisive issue had to be presented when the issue was discussed on radio.

Under such a government rule, radio networks would have to allow opposing viewpoints free airtime to babble on about liberal fantasies.

Yet the hard, cold truth is that radio stations can't afford to give away airtime. So instead of more balanced coverage of the issues, station managers will mandate that programming be non-issue oriented. Instead of Rush Limbaugh, Sean Hannity and Glenn Beck, listeners will hear more music and wisecracking DJs.

Such a policy could even knock my program, Richard Land Live!, off the air!

This is a blatant attempt to silence conservative talk radio, which is the alternative media to the major networks and major daily newspapers.

And—no surprise here—in its heyday the Fairness Doctrine didn't apply to newspapers or cable television channels.

In a National Conference on Media Reform held in Memphis in January, Kucinich said the media had become the "servant of a very narrow corporate agenda." With Democrats now in control of both houses of Congress, he continued, "We are now in a position to move a progressive agenda where it is visible."

"Progressive agenda" is the left's code language for "liberal agenda."

Those on the left—unable to mount an effective and profitable voice to counter those on the right who operate successful endeavors on the airwaves—are doing what liberals almost always seem to do when they have a need: petition the government to do their bidding by giving Uncle Sam a big stick with which he can threaten station owners to comply.

Their motto seems to be: "If you can't compete, then get the government to fix the game."

The more controlled the media, the less free are the citizens.

While the U.S. Supreme Court held the Fairness Doctrine as constitutional in the 1969 case, Red Lion Broadcasting v. FCC, the court noted the doctrine "inescapably dampens the vigor and limits the variety of public debate" in Miami Herald Publishing Co. v. Tornillo (1973), but it didn't find the doctrine compromised Americans' First Amendment rights.

In Columbia Broadcasting v. Democratic Committee (1973), a case focusing on the network's refusal to accept editorial advertisements, the court said a broadcaster's refusal to accept certain advertising was not a violation of the advertiser's First Amendment rights. "Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations," the majority said.

And in CBS, Inc. v. FCC (1981), the court found the major networks had violated their obligation to provide "reasonable access" to the airwaves, in this case access requested by the Carter-Mondale Presidential Committee.

Yet in dissenting, Justice Byron R. White, joined by Justice William H. Rehnquist and Justice Paul Stevens, noted the "inevitable tension between the need to allocate scarce frequencies and the importance of giving licensees broad discretion in exercising editorial judgment in the use of those frequencies," saying broadcast licensees should be given "considerable leeway in the fulfillment of that duty."

In FCC v. League of Women Voters (1984), a case focusing on noncommercial stations, the court held that requiring balanced opinions on controversial issues "simply silences all editorial speech by such broadcasters." The justices wrote, "Finally, although the Government's interest in ensuring balanced coverage of public issues is plainly both important and substantial, we have, at the same time, made clear that broadcasters are engaged in a vital and independent form of communicative activity. As a result, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area."

In discontinuing the Fairness Doctrine in 1987, the FCC said the doctrine was "no longer a necessary or appropriate means by which to effectuate" access to "diverse and antagonistic sources of information."

The commission said the "interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today," further noting enforcement of such a regulation "unnecessarily restricts the journalistic freedom of broadcasters."

The FCC rightly determined that the doctrine was inhibiting the discussion of "controversial issues of public importance" and not encouraging free and open debate for the public interest.

Proponents of a new fairness doctrine assert that because media ownership is in fewer hands than in the past the government must protect the public interest. The reality is that conservative voices on the air get consistently bigger ratings, while liberal voices prompt many listeners to change the channel.

Right-leaning political talk shows took root on the radio airwaves because conservatives didn't find their perspectives aired or printed many other places. It is the same reason Fox News Channel has prospered—many Americans were desperate for a news channel that was not blatantly supportive of the political left.

Most devotees of conservative talk radio consider their favorite programs and Fox News to be a necessary balance to the liberal-dominated mainstream media.

Who is the government to decide what is fair and balanced?

It's not the political persuasion of the owner that determines what is on the broadcast schedule; it is what garners the best ratings and then by extension, the highest advertising rates.

Any so-called fairness doctrine that forces the sharing of microphones stifles debate, not encourages it. The doctrine forces the media to self-censor.

Furthermore, it is improbable in this day of 24/7 media that any one perspective can monopolize the airwaves.

In 1949—in a very different media climate—the FCC said that station licensees were "public trustees" and were therefore obligated to provide contrasting points of view on controversial issues. Earlier the FCC had issued the "Mayflower Doctrine," which prohibited editorializing by the stations, which were few and far between.

A report on the Fairness Doctrine by the Museum of Broadcast Communications said that when the doctrine was in place, stations, in an attempt to avoid the rigors of offering "contrasting viewpoints" on every issue, avoided coverage of controversial issues—except in news reports.

Nonetheless, in an opinion piece on alternet.org (Time for a Digital Fairness Doctrine, posted Oct. 19, 2004), Jeffrey Chester called for a new expanded fairness doctrine that would cast a wide, if not unwieldy, net over all forms of public communication in order to safeguard the public interest. Irked that his candidate, John Kerry, was being targeted by a group of Vietnam War veterans, Chester suggested, "Policies that ensure that digital media—including cable, satellite, and the broadband Internet—have an obligation to provide diverse viewpoints are more necessary than ever."

He whined that the "rise of conservative talk radio is directly linked to the absence of the Fairness Doctrine," saying these "shrill right-wing talk jocks are immune from having to provide even a modicum of balanced perspective."

That's the point. Katie Couric doesn't have a political opposite next to her at the CBS Evening News desk, and Limbaugh should not have to have Arianna Huffington on the air with him.

Even John Kerry has jumped on the Fairness Doctrine train, also expressing a longing for the return of equal time requirements. The man that Ohio kept out of the White House told listeners to New York City's public radio station, WNYC, "One of the most profound changes in the balance of the media is when the conservatives got rid of the equal time requirements."

"The result is that [conservatives] have been able to squeeze down and squeeze out opinion of opposing views," he said.

There is no indication Kerry invited someone with an opposing viewpoint into the public broadcasting studio with him. And I may be wrong, but it seems there is not a lack of liberal voices on the air. Many in the media are all too eager to mouth the left's talking points.

It all comes down to the fact conservatives are successful on talk radio and that left-leaning talk networks have a difficult time remaining financially solvent.

Without the Fairness Doctrine in place, station owners can provide programming the audience wants, not merely what the government dictates. There is something refreshingly free and constitutionally sound about that.

Dr. Richard Land is president of The Ethics & Religious Liberty Commission, the Southern Baptist Convention's official entity assigned to address social, moral, and ethical concerns, with particular attention to their impact on American families and their faith.