Fairness Doctrine or Freedom Doctrine?

Moves are afoot among liberals to revive the defunct “Fairness Doctrine.” That was a regulation issued by the Federal Communications Commission which required broadcast licensees to present “both sides” of controversial issues, and present them in what the FCC deemed to be an honest, equal and balanced manner. It has since been repealed by the FCC, and aspects of it have been questioned by the courts. It should be left to rest in peace.

The Fairness Doctrine took root in what sounds, at least, like a benevolent principle: that in a democracy, the electorate should be able to hear all sides of an issue. The Doctrine got a boost — indeed it hit its high water mark — in a 1969 Supreme Court case called Red Lion Broadcasting v. FCC, in which the Court upheld it against a First Amendment challenge. The Court understood that a regulation like the Fairness Doctrine would be constitutionally problematic if applied to newspapers, but held that radio stations could be regulated in this way because of the scarcity of public broadcast spectrums.

In the 1980’s, however, the FCC itself came to doubt both the need for and the constitutional viability of the Doctrine, and abolished in it 1987. Two attempts to reinstate it as a federal statutory requirement were vetoed, one by President Reagan and the last by President George H. W. Bush.

The FCC’s decision to end the Doctrine was correct, both on constitutional and practical grounds. If the First Amendment means anything, surely it means that the government cannot set itself up as the arbiter of what counts as a “controversial issue,” much less of when a private broadcaster is presenting that issue in an “honest, equal and balanced” manner. As First Amendment guardian Nat Hentoff has put it, “Imagine if Tom Paine had had to give equal time to the royal governor’s opposing views.”

As a practical matter, Red Lion‘s “scarcity” rationale has vanished. Scarcity of broadband width may have been a problem 38 years ago, but since the advent of the internet age, 38 years might as well be 38,000 years. In 1969, the average television received perhaps four or five channels, and no one even dreamed of sitting at his personal computer and being able to access dozens if not hundreds of websites arguing pro and con on every conceivable issue. If there were ever a scarcity-based rationale for the Fairness Doctrine, it has long since disappeared into cyberspace.

Mr. Hentoff put his finger on the real reason those on the Left want to bring back the Fairness Doctrine: “They bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators.” Unable to make a go of it with their own talk radio formats — formats like the recently bankrupt Air America outlet in New York City, which apparently couldn’t even attract a decent audience in the biggest media market in the country — liberals now want to dragoon conservative broadcasters to provide a cost-free soapbox for them. Wouldn’t it be better for liberals to obtain an audience, not by having the government coerce their opponents into providing it for them, but by the old-fashioned method: Earn it.

Twenty years ago, the FCC understood that there’s something better than the Fairness Doctrine. Let’s call it the Freedom Doctrine. The Freedom Doctrine was good enough for Tom Payne, and it’s good enough for us.