Eminent Domain

While cruising my way through Friday's Investors Business Daily, I came across this interesting editorial about the Fairness Doctrine. The editors rip the Democrats for trying to revive the Doctrine, calling it an act of jealousy and frustration. While I agree that the Fairness Doctrine is horrible, I can't help but feel sorry for the Democrats in this situation. Since the demise of the Doctrine at the hands of President Reagan, conservative talk radio has become a major political force. The Left has not been able to muster the same AM-airwave power that the Right has in the past two decades. So I do feel sorry for them, but not too sorry.

There was a big flare up of Fairness Doctrine revival talk last Summer. John Kerry bemoaned the "imbalance" in our public dialogue. Dennis Kucinich pushed for the Doctrine to come back (or at least some serious deiscussion of it), and Hillary Clinton and Barbara Boxer supposedly didn't have a conversation about a "legislative fix" to the talk radio problem. Dick Durbin chimed in as well... "I have this old-fashioned attitude that when Americans hear both sides of the story, they're in a better position to make a decision." That's a lot of cranky D's.

With respect to Durbin's statement, I've never believed that there are only two sides to any story, issue, or policy. If the proponents of the Doctrine really cared about having a robust debate, they would have to broaden their scope. Why not have a libertarian viewpoint added to the mix, or a Green viewpoint, or a Socialist viewpoint (we even have one of those in the US Senate, Bernie Sanders)? There are two reasons. First, that's a lot of people trying to share limited airtime. Second and most important, the Fairness Doctrine isn't really about robust debate. It's about getting more liberal voices on the radio and/or pressuring media companies to carry fewer conservative talk shows.

The Supreme Court took up the Constitutionality of the Fairness Doctrine in Red Lion Broadcasting v FCC. The Court said that the Doctrine was Constitutional, discussing the scarcity of the airwaves, the ownership of the airwaves by the public (not by the private entities), and the fact that the stations are licensed by the government. That's probably the worst, most superficial explanation of Red Lion ever written, but I'm sure you get the main idea: the Court okayed the Fairness Doctrine. Would today's Court come to the same conclusion? I'm not sure, but I doubt that the Court would be unanimous like it was in Red Lion.

Why do I dislike the Fairness Doctrine so much? Am I that big a fan of talk radio? Not exactly. The Fairness Doctrine has a history of being used as a weapon against political rivals. Here's an excellent summary by Jesse Walker, which includes some examples...

In December 1961, Walter and Victor Reuther of the United Auto Workers, together with the liberal lawyer Joseph Rauh, wrote a 24-page memorandum to Atty. Gen. Bobby Kennedy. The memo urged the administration to deploy the FBI, the IRS, and, yes, the FCC to win "the struggle against the radical right," which to the Reuthers included not just the John Birch Society and the Christian Crusade but Sen. Barry Goldwater and the libertarian Volker Fund. The FCC, the authors wrote, "might consider examining into the extent of the practice of giving free time to the radical right and could take measures to encourage stations to assign comparable time for an opposing point of view on a free basis."

Okay, that seems a little ominous, but not exactly damning. It's just a memo. Wait, there's more...

In his 1976 book The Good Guys, the Bad Guys, and the First Amendment, former CBS president Fred Friendly quoted Bill Ruder, an assistant secretary of commerce under Kennedy and a PR consultant during Johnson's presidential campaign, on the advantages of the regulation. "Our massive strategy," Ruder said, "was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

Well, now that's a little more direct, an administration official stating that the Fairness Doctrine was used to harass political opponents. But let's be fair here, even the right wingers got in on the act...

Private activists directed by the Republican National Committee regularly filed Fairness Doctrine challenges against stations whose reporting angered the White House, and Nixon staffers found they could intimidate network officials merely by threatening to challenge their licenses if their coverage was deemed "unfair." Twenty-one times during the intense antiwar demonstrations of October 1969, Nixon told his underlings to take "specific action relating to what could be considered unfair network news coverage."

Government intimidation of news networks. Sounds like fairness to me.

I'm a lifelong Milwaukeean, so this example really jumped out at me...

In 1981, Milwaukee Mayor Henry Maier asked the FCC to intervene after WTMJ-TV ran 15 editorials criticizing his city government. The commission didn't find any violation of the Fairness Doctrine. When Mayor Maier asked the courts to force the regulators' hand, they also sided with the station. But in the meantime, the broadcasters had run up a legal bill of $17,000 defending themselves.

Here is an excellent example of why the Fairness Doctrine is horribly flawed. It didn't matter that WTMJ was right the entire time. They still had to fight Maier's attempt to sic the FCC on them. A fight like that costs a lot of money. If you think $17,000 is a lot of money, remember that this is in 1981 dollars too. Is this really the "fairness" that we want?

This quote by Nat Hentoff from the Walker article really nails it...

"When official Fairness Doctrine letters came to the station's owner from the FCC, the front office panicked," he wrote. "Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station."

Station owners had to spend significant amounts of money when they simply received Fairness Doctrine letters from the FCC. The owners got sick of the time and money spent in response, so they watered down their programming. Nothing controversial or thought provoking gets on the air because the owners don't want to deal with the FCC or pay the bills. That sure would correct the imbalance in our public dialogue. It would do it by ending the dialogue.