For most of the second half of the 20th century, the Federal Communications Commission (FCC) asserted that the right to broadcast — on scarce, publicly owned frequencies — came with civic responsibility. Broadcasters, the FCC held, should devote some of their programming to controversial matters of public interest. They should also allow divergent points of view to be presented on their stations. That's the Fairness Doctrine in a nutshell. (In one famous case, the Supreme Court ruled that the author of a critical biography of Barry Goldwater had the right to respond to a torrent of criticism directed at him from a Christian broadcaster in Red Lion, Pennsylvania.)
The doctrine's intentions were commendable. But it was vague, and spottily applied, and co-existed uneasily with the First Amendment's right to free speech. And in 1987 — at the height of Reagan-era deregulation — it was voluntarily abolished by the FCC. The FCC's decision was upheld on appeal to the US Circuit Court of Appeals for the District of Columbia in 1989, and subsequent congressional efforts to restore it have failed.
Many observers believe that's for the best. "The Fairness Doctrine had this perverse result," says Jane Kirtley, director of the University of Minnesota's Silha Center for the Study of Media Ethics and Law. "The way some broadcasters chose to provide equal time for opposing viewpoints to be heard was to say that they just weren't going to cover controversial issues. I have no reason to think that would change in 2008 or 2009." Factor in the rise of cable news and the Web, adds Kirtley, and the Fairness Doctrine's original rationale doesn't make sense anymore.
Media critic Rory O'Connor, who discusses the subject in Shock Jocks: Hate Speech and Talk Radio (AlterNet), agrees. "The Fairness Doctrine is a 20th-century response to 21st-century problems," he says. "It didn't work so well in the first place. It was misused and abused by political operatives in both parties." There is, O'Connor claims, "no way in Hell" that the Fairness Doctrine's going to be reinstated. Conservatives are only milking the subject to "excite the base, create outrage, and drive up ratings."
No question, the right's treatment of the subject is irresponsible. A restored Fairness Doctrine wouldn't "kill" the conservative-friendly medium of talk radio, or mandate "equal time" for the presentation of liberal and conservative perspectives. Instead, it would simply require conservative broadcast outlets to allow the occasional liberal voice, and vice versa.
To be fair, though, conservative fears aren't entirely unfounded. While Obama seems to favor regulating broadcasters to achieve specific aims, including increased minority ownership, he's indicated he doesn't want to restore the Fairness Doctrine. But other prominent Democrats disagree. Speaker of the House Nancy Pelosi recently told the conservative magazine Human Events that she supports the Fairness Doctrine. On Election Day, Democratic New York senator Chuck Schumer told Fox News you couldn't oppose the Fairness Doctrine while supporting government regulation of obscenity, as many conservatives do. And other Dems — including Massachusetts senator John Kerry, the subject of an attack documentary broadcast on Sinclair Broadcasting's 62 (conservative) stations during his 2004 presidential run — have made similar remarks.
Time for restraint
That some Democrats might relish the idea of punishing Limbaugh and his compadres is understandable. But there are strong arguments for restraint. The first is constitutional: the Fairness Doctrine would exist, yet again, in tension with the First Amendment. The second is strategic: the inchoate sense of grievance that currently animates the right has slim political potential — but that could change if Republicans can style themselves as free-speech defenders.
The most important reason for caution, though, is the nascent effort to link the Fairness Doctrine with Net Neutrality. Without Net Neutrality, the telecom industry will almost certainly create a two-tiered system that privileges some content, while consigning the rest — created, presumably, by those who lack big bucks — to a sort of virtual ghetto.
Thus far, Net Neutrality hasn't been a partisan issue. Obama supports it; so does NARAL Pro-Choice America; so does the Christian Coalition and the National Rifle Association.
But efforts to fragment the broad, pro–Net Neutrality alliance are already underway — and the Fairness Doctrine seems destined for a starring role. In an October 2007 paper titled "Net Neutrality: A Fairness Doctrine for the Internet," Adam Thierer of the Progress & Freedom Foundation — a think tank funded by, among others, AT&T, Comcast, and Time Warner Cable — suggested that Net Neutrality was actually a partisan ploy aimed at crippling the right. Groups such as the Christian Coalition, Thierer suggested, should reconsider their support.
Then, this past August, Republican FCC commissioner Robert McDowell made a similar argument at the conservative Heritage Foundation. Regarding Net Neutrality, McDowell asked, "Will Web sites — will bloggers have to give equal time or equal space on their Web site to opposing views, rather than letting the marketplace of ideas determine that?"
This is a stupid question. The Fairness Doctrine involved government mandating, in certain cases, that specific content be added to a particular media entity. In contrast, Net Neutrality doesn't involve intrusion into content; it only dictates absolute freedom of (virtual) movement. It's the opposite of what McDowell seems to think.
But as Joe Campbell, author of the blog 2parse.com, recently noted in a post linking Thierer's paper and McDowell's remarks, this is about tactics, not logic. If conservative Net Neutrality supporters come to see it as the Fairness Doctrine 2.0 — something that's more easily done if the Fairness Doctrine is already on everyone's brain, as it is today — they might rethink their support. Given Democratic gains in Congress and Obama's support for Net Neutrality, Campbell argues, "This is the big corporations' only chance to squash Net Neutrality."
Now that's a scary prospect. The Web is the future of news media. (It's also a battleground where, at the moment, Democrats are totally dominating Republicans.) Bringing back the Fairness Doctrine is a dubious proposition, period. But if doing so could jeopardize the success of Net Neutrality, it's downright reckless.
Instead of reliving an old-media battle that's run its course, Democrats should focus instead on making Net Neutrality a reality. And Obama should help them by stating that he'll veto any legislation aimed at restoring the Fairness Doctrine that crosses his desk. Let the right worry about something else.