What's fair is fair

Writing at the Political Animal a few days ago, Steven Benen said he's

been fascinated of late with the far-right hysteria about the reemergence of the "fairness doctrine," because conservative activists are gearing up for a knock-down brawl against an enemy that doesn't exist. ...

And yet, the nonsense doesn't stop. Perusing the news this morning, there are still more conservative columnists railing against the "plan" to bring back the fairness doctrine, and unhinged propaganda about the "unprecedented government assault upon the First Amendment" that is allegedly on the way.

He goes on to say that no one in Congress or the incoming Obama administration is pushing for a return of the Fairness Doctrine, chalking the whole thing up to "Republican paranoia" and the need to find a new "rallying cry."

Some others have made comments along similar lines, all laughingly dismissing the whole business while tut-tutting that no one is arguing for a return of the Fairness Doctrine.

Which is not completely true but is true as far as officialdom goes; while there are a few Senators and a couple of House members who will say they would support its return, it certainly appears none of them, at least none any in any position of authority, have any intention of doing anything about it.

But Avedon Carol of The Sideshow asks a simple question:

[W]ould a return of the Fairness Doctrine be such a bad thing?

And the only reasonable answer is absolutely not. Rather, it would be a definite good thing. Which is what is so infuriating about so much of the reaction among the self-described "progressives" on this: Their attitude extends the dismissal beyond right-wing fantasies to the idea of the Fairness Doctrine itself. And that is a shame constructed of equal parts ignorance and technophilia.

I was involved (as an individual citizen) in the attempts to block the elimination of the rule: writing letters, submitting public comments, that sort of thing. So I'm at least passingly familiar with what it was about.

So first, let me clear up some of the mass of misunderstanding there is out there about the Fairness Doctrine. For example, it did not require "equal time." (The Equal Time rule was an entirely separate rule that related to stations endorsing political candidates.) It did not require that every or even any individual show be "balanced." It did not require stations that broadcast talk shows hosted by right-wing flakes carry an equal number of hours of talk shows hosted by liberals. It did not require that every conservative guest on every show be "balanced" with a liberal guest.

It required only two things: One, that licensed broadcasters cover issues "of public interest," including some controversial ones. Two, that overall, the station's coverage of those issues be reasonably "fair" with various sides having a "reasonable" opportunity to be heard.

Period.

Moreover, the fact is, there had been some version of a Fairness Doctrine in US broadcasting not only since before there was an actual Fairness Doctrine but before there was an FCC.

In the Radio Act of 1927, Congress mandated the FCC’s forerunner, the Federal Radio Commission (FRC), to grant broadcasting licenses in such a manner as to ensure that licensees served the “public convenience, interest or necessity.”

In 1928, in the first direct hints of what became the Fairness Doctrine, the FRC required broadcasters to show “due regard for the opinions of others.”

From the early 1940s, the FCC[, created by the Communications Act of 1934,] had established the "Mayflower Doctrine," which prohibited editorializing by stations. But that absolute ban softened somewhat by the end of the decade, allowing editorializing only if other points of view were aired, balancing that of the station's. During these years, the FCC had established dicta and case law guiding the operation of the doctrine.

Finally, in 1949, the FCC, having felt its way through to a reasonable balance, ruled

that station licensees were "public trustees," and as such had an obligation to afford reasonable opportunity for discussion of contrasting points of view on controversial issues of public importance. The Commission later held that stations were also obligated to actively seek out issues of importance to their community and air programming that addressed those issues.

In 1959, Congress amended the Communications Act to specify that "a broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance.” Ten years later, in the case of Red Lion Broadcasting Co. v. FCC, the Supreme Court upheld the constitutionality of the Fairness Doctrine, arguing in essence that the ability to hear differing views was closely related to the ability to express them.

But of course the corporations were never happy about this: Broadcast licenses had famously been described as licenses to print money - and they wanted the license to print the money without any actual obligations to anything other than their bottom line to go along with it.

With the arrival of the Reagan gang, the broadcasters, seeing their opportunity, started openly lobbying for repeal of the rule. They claimed it had a "chilling effect" on their "free speech" and that with the development of cable, there was no "scarcity" of outlets for a variety of views. But their main argument against the rule was that it was unnecessary because broadcasters could be trusted to address controversies, and do it a way fair to all sides, on their own. I remember that because I also remember wondering at the time that if that was true, that the rule only required them to do what they'd do anyway, why they were devoting such time and energy to getting it repealed. (There is an old saying that "some questions need only be asked.")

In 1985 they were on the verge of success, as an FCC with a Reagan-appointed majority issued a report that parroted industry claims. Then two court cases gave the agency the chance to act on the industry's behalf.

First, in TRAC v. FCC, a panel of the DC Court of Appeals dismissed what would appear to be the plain meaning of the 1959 amendment noted above in order to find that "the fairness doctrine is not a 'binding statutory obligation' under the Communications Act of 1934," and so the FCC was not obligated to enforce it. In December 1986, a request for a hearing before the full court was denied, ending the case. Then, in January 1987 the same court ruled in Meredith Corporation v. FCC that the agency had not given adequate consideration to the company's constitutional challenge to a case involving a Fairness Doctrine violation and sent the case back to the FCC for reconsideration.

That was the opening: The FCC responded by eliminating the doctrine altogether that August.

Interestingly, in a show of Congressional intent that was a clear rejection of the finding in TRAC, in the spring of 1987, before the FCC acted, Congress passed legislation to specifically make the doctrine law. Reagan vetoed it.

And we can see how well it has all worked out. There are so many controversial issues discussed in such a fair and balanced way. A show like "See It Now" could never have been broadcast during the dark days of the Fairness Doctrine. We are so much better informed than we used to be and the mass broadcast media probes so tellingly that it's become impossible, for example, for a president to lie us into a war or for significant numbers of people to honestly believe that a centrist US senator is actually a Muslim terrorist or for the government to give $2 trillion in loans to private corporations without anyone noticing - or for people to be unaware that majorities of their fellow citizens agree with them on issues like national health care. All because we are so well served by our media who need no prompting to discuss serious, controversial issues in a fair manner that gives full voice to actual progressive views just like it does to centrist and conservative ones.

The Fairness Doctrine? Pah! That's so, so... so pre-internet!

Footnote: I wanted to note that the piece on the Fairness Doctrine from the Museum of Broadcast Communications linked above goes to some pains to diss it.

For example, the author, who wrote on broadcast ethics, says "journalists ... considered it a violation of First Amendment rights" and "simply avoided any coverage of some controversial issues" (the "chilling effect"). But that is fundamentally untrue: It was the corporations, not journalists, that dodged controversy for fear of upsetting some viewers - and therefore, more importantly, their sponsors. Journalists had a hell of a lot more trouble getting stories past their bosses than past the Fairness Doctrine.

He also says, echoing the industry, cable eliminated "scarcity" and offered "many other voices in the marketplace of ideas." All those left-wing dominated cable channels are clear proof of that.

To wrap it up, he refers to the 1987 legislation as requiring the FCC to enforce the doctrine, "like it or not" and that the doctrine "remains just beneath the surface of concerns over broadcasting and cablecasting" in the face of the "threat" of legislation.

Footnote Again: According to a Rasmussen study from this summer,

[n]early half of Americans (47%) believe the government should require all radio and television stations to offer equal amounts of conservative and liberal political commentary,

with 39% opposed. That is, a clear plurality of Americans support a level of balance that is far stricter than anything envisioned by the Fairness Doctrine. So maybe, "progressive" pundits, the Fairness Doctrine is neither so silly nor so archaic after all.