John Armor: Anybody Remember the Red Lion Case?

This op-ed originally appeared in Human Events

by John Armor

July 29, 2008

Led by Speaker of the House, Nancy Pelosi, a phalanx of Democrats and liberal pressure groups are urging a return to “The Fairness Doctrine.” What could be more American than “fairness”?

The prototype of the Fairness Doctrine was created in 1929 by the Federal Communications Commission’s ancestor, the Federal Radio Commission. It was intended to ensure full discussion of public issues on any federally-licensed radio station. The FCC ultimately developed two related standards, Equal Time and Right of Reply both being part of the Fairness Doctrine.

In 1964, Fred J. Cook, who had been attacked for his opposition “to J. Edgar Hoover and the CIA” among other charges, on a radio station in Red Lion, Pennsylvania, demanded equal time as a matter of “fairness” to answer that attack. The station refused, and ultimately the issue of whether the Constitution permitted the FCC to order that right of access reached the Supreme Court. His case on the right of reply was combined with another case on the equal time issue. Justice Byron White wrote the unanimous opinion.

White noted that both the right of reply to personal attacks and the necessity to provide equal time on public issues, had been codified by the FCC in 1967, but had been established by individual decisions, prior to that. He reviewed the history of radio broadcasting, noting that this was a “scarce” medium requiring government regulation to function.

Justice White found that Congress had agreed, in amending the Communications law in 1959, because “broadcast frequencies are limited and, therefore, they have been necessarily considered a public trust.” According to the opinion, the scarcity was driven by the technology of the day. He wrote, “only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology.”

Here is the heart of the Red Lion decision: “There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.”

The opinion dismisses with a wave of the hand the idea that stations might engage in “self-censorship,” if they were required to present ideas, or even individuals, that neither station management nor their listeners wanted to hear. If this happened it would be “a serious matter.” But it is merely “speculative.” Those who see the hunt for a new Fairness Doctrine as an attack on successful conservative radio hosts might conclude that self-censorship is exactly what Speaker Pelosi and others have in mind. But at this point that is only “speculative.” Or is it?

The First Amendment has a different meaning for the print media. In 1974 the Supreme Court decided in Miami Herald v. Tornillo that Florida had no right to force newspapers in that state to give equal space for reply by anyone attacked by any paper’s editorials. This law was based on the same “fairness” argument used against broadcast media.

So, the validity of the Fairness Doctrine, and its cousin, the Equal Time Doctrine, depend on the scarcity of the broadcast media as opposed to print media. The Red Lion decision itself touches on the possibility that changes in technology would make the decision obsolete. “It is argued that even if at one time the lack of available frequencies for all who wished to use them justified the Government’s choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails so that continuing control is not justified.”

What Justice White does not include in his opinion is the relative availability of media when he was writing his opinion. There were slightly more than 4,000 daily newspapers in the United States, then. Most major cities had competing dailies. Some cities like Chicago and New York, had more than six competing newspapers.

At the same time, in 1969, the number of TV licenses were in the hundreds, and there were fewer radio licenses than newspapers.

Today, all of those figures are reversed. The number of daily newspapers is down to about 2,000 and declining. The number of TV stations are above 10,000, and the number of radio stations about five times as many. Given cable and satellite technologies, the average American household now has access to at least 100 TV channels, plus dozens of specialized radio stations. That average household has access to less than two daily newspapers.

It was this change in the facts which led the FCC to end the Fairness Doctrine almost thirty years ago. The disparity, with print media declining and electronic media growing, has continued apace since then. This huge advantage in favor of individual access to broadcast channels that offer what they want, is increased by orders of magnitude when the Internet, plus pod casting, are added to the mix.

Those who are arguing for reestablishment of the Fairness Doctrine have not done their homework. The Doctrine survived in Red Lion in 1969, because of the “scarcity” of broadcast outlets, as opposed to print media ones. Justice White was about twenty years behind the technology curve when he wrote that decision.

In the 21st Century no one who pays attention could say that electronic media are scarce without laughing. It is newspapers that are becoming scarce, because in what Thomas Jefferson called “the marketplace of ideas,” the electronic media are bringing more ideas, more quickly, to the public than print media can possibly match.

The Fairness Doctrine might somehow be reestablished, by Congress, or by appointments to the Federal Communication Commission by a new President. Either would be a serious mistake. But, as long as the Supreme Court remains capable of assessing facts, and honest in its approach to the First Amendment, even if the Democratic Congress could revive it, the Fairness Doctrine will remain legally dead.