The Fairness Doctrine Fouls Out
Reactionary liberalism, the ideology of many Democrats, holds that inconvenient rights, such as secret ballots in unionization elections, should be repealed; that existing failures, such as GM, should be preserved; and, with special perversity, that repealed mistakes, such as the "fairness doctrine," should be repeated. That Orwellian name was designed to disguise the doctrine's use as the government's instrument for preventing fair competition in the broadcasting of political commentary.
Because liberals have been even less successful in competing with conservatives on talk radio than Detroit has been in competing with its rivals, liberals are seeking intellectual protectionism in the form of regulations that suppress ideological rivals. If liberals advertise their illiberalism by reimposing the fairness doctrine, the Supreme Court might revisit its 1969 ruling that the fairness doctrine is constitutional. The court probably would dismay reactionary liberals by reversing that decision on the ground that the world has changed vastly, pertinently and for the better.
Until the Reagan administration extinguished it, the doctrine required broadcasters to devote reasonable time to fairly presenting all sides of any controversial issue discussed on the air. The government decided the meaning of the italicized words.
When government regulation of the content of broadcasts began in 1927, the supposed justification was the scarcity of radio spectrum. In 1928 and 1929, when Republicans ran Washington, a New York station owned by the Socialist Party was warned to show "due regard" for others' opinions, and the government blocked the Chicago Federation of Labor's attempted purchase of a station because all stations should serve "the general public." In 1939, when Democrats ran Washington, the government conditioned renewal of one station's license on that station's promise to desist from anti-FDR editorials.
In 1969, when the Supreme Court declared the fairness doctrine constitutional, it probably did not know the Kennedy administration's use of it, as one official described it: "Our massive strategy was to use the fairness doctrine to challenge and harass the right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." Richard Nixon emulated this practice. In 1973, Supreme Court Justice William Douglas, a liberal, said the doctrine "has no place in our First Amendment regime" because it "enables administration after administration to toy with TV or radio."
The court's 1969 ruling relied heavily on the scarcity rationale. But Brian Anderson and Adam Thierer, in their book "A Manifesto for Media Freedom," note that today there are about 14,000 radio stations, twice as many as in 1969; 18.9 million subscribers to satellite radio, up 17 percent in 12 months; and that 86 percent of households with either cable or satellite television receive an average of 102 of the 500 available channels. Because daily newspapers are much more scarce than are radio and television choices, should there be a fairness doctrine for the New York Times?
The 1969 court dismissed as "speculative" the possibility that the fairness doctrine would cause broadcasters to "eliminate coverage of controversial issues." But the proper worry was that the doctrine would continue to stifle the flowering of controversy. A court that considers the doctrine today will note that whereas in 1980 there were fewer than 100 talk radio programs, today there are more than 1,500 news or talk radio stations.
Further subverting the "scarcity" rationale for government supervision of broadcast content, some liberals now say: The problem is not maldistribution of opinion and information but too much of both. Until recently, liberals fretted that the media were homogenizing America into blandness. Now they say speech management by government is needed because of a different scarcity -- the public's attention, which supposedly is overloaded by today's information cornucopia.
And these worrywarts say the proliferation of radio, cable, satellite broadcasting and Internet choices allows people to choose their own universe of commentary, which takes us far from the good old days when everyone had the communitarian delight of gathering around the cozy campfire of the NBC-ABC-CBS oligopoly. Being a liberal is exhausting when you must simultaneously argue for illiberal policies on the basis of dangerous scarcity and menacing abundance.
If reactionary liberals, unsatisfied with dominating the mainstream media, academia and Hollywood, were competitive on talk radio, they would be uninterested in reviving the fairness doctrine. Having so sullied liberalism's name that they have taken to calling themselves progressives, liberals are now ruining the reputation of reactionaries, which really is unfair.