Media Fairness

As a basic premise, the Fairness Doctrine was enacted by the FCC at a time when the concept of “scarcity” was readily accepted with regard to broadcast media.  It’s a simple concept – there is only so much bandwidth on the electromagnetic spectrum and only a certain number of radio and television station licenses can be allocated to geographic regions without interference between signals.

During this period prior to the mid-1980s, the FCC additionally had rules regarding the number of stations a single owner could own.  For instance, under a 7-7-7 rule, a single owner could own 7 AM stations, 7 FM stations and 7 television stations (certain market based rules also applied to prevent ownership of AM, FM and TV in the same market).  Under such rules, the laws of mathematics dictated that, hypothetically, if there are 5000 AM radio stations in America, there would have to be about 714 different owners.  If you raised (relaxed) the ownership rules to 14, then you there would need be only about 357 separate owners.  The more it is raised, the lower number of owners are necessary to hold all the licenses.

During the 1980s and early 1990s extreme relaxation of ownership rules occurred for reasons that seemed to include the guise (pushed by the National Assoc. of Broadcasters) that the industry needed managerial and operational consolidation in order for the industry to survive.  The relaxation of rules has had many predictable but unintended bad consequences – but that’s a conversation for another day – today we’re concerned with the Fairness Doctrine.

Now, the constitutional issue (put in very basic terms) is that the Supreme Court must apply strict scrutiny to any limitation of speech by the government, especially limitations on political and religious speech.  A limitation is called a “prior restraint” and the Court says the strictest of scrutiny must be applied in determining whether a prior restraint is Constitutional (a prior restraint is un-Constitutional by definition).  Strict scrutiny means that (i) the government must have a compelling interest in limiting speech – this means critical and of high necessity, not just a desire by politicians to eliminate what they don’t want to hear; (ii) any law enacted that limits a fundamental right (e.g 1st Amendment speech) must be narrowly tailored so as to only address the critical need; and (iii) the law or policy must be the least restrictive means for accomplishing the objective.

The argument I make is that the Fairness Doctrine (or similar law) which forces a broadcaster to account for points of view on the airwaves is a restriction on free speech – a prior restraint.  It will either (i) force a broadcaster to air speech it does not desire to air because it disagrees; (ii) force it to air speech which is commercially unsupportable; or (iii) cause the broadcaster to discontinue the programming of broadcast content by those with political views altogether.

Consider these points:

1.  It is well-documented that generally, AM radio is flush with conservative talk, FM is flush with music and limited news/talk like NPR (generally considered centrist to liberal talk) and TV is flush with liberal sitcoms, liberal newscasts and liberal talk shows (with one exception, Fox News).  The point is, we already have fairness in the form of a sort of striated balance.

2.   The Supreme Court has determined that the free press guarantees of the First Amendment prevent any prior restraint on media.  The theory goes that bad speech will be punished and corrected by the market and by those actually harmed. Statements contrary to the public welfare would be punished after publication and that would curb their re-publication.   As an example, instead of regulating defamation, a defamed person or business may file suit and thence publishers (or those other would-be defamers) will guard themselves more carefully.  In a sense, in Patterson v. Colorado (US 1907) the Supreme Court established that the market and the legal system will self-regulate speech – but only after the word is out.  Bottom line, do you want to guard your tongue … or do you want the gov’t preventing your speech?

3.   Originally, the Fairness Doctrine was enacted to GIVE BROADCASTERS more rights because they were then-currently under a ban against editorializing.  Broadcasting and its regulation were so new on the scene that the government had to ease its way in to allowing broadcasters to editorialize, by regulating that they allow equal time for opposing views.  Its original purpose has been served.

4.   New media and technology further eliminate the “scarcity” concept.  While it remains true that there is only so much electromagnetic air space to allocate broadcast frequencies, that logic ignores modern reality.  First, the FCC has been creative in lowering the signal strength of allocated licenses and permitting greater levels of signal interference.  The advent of Low Power TV (LPTV) and Class A and LPFM (3K and less) has allowed the filling of may “holes” in the electromagnetic landscape.  I am not an engineer, but in theory, the delivery of digital broadcast signals permits the sending of a signal that should be less interference-prone and which should require less bandwidth on the spectrum.  This all ignores the glaring fact that anyone on a limited budget can create streaming audio, video and podcasts on the Internet.  Scarcity is a concept worthy of the term “relic.”

5.   Any perceived unfairness (one must assume that those in Congress who’ve raised the idea of reenactment of the Fairness Doctrine must consider there to be unfairness on the air) must be blamed, in part, on the government itself for permitting the extreme relaxation of ownership rules resulting in the consolidation of media ownership.  If XYZ Corp owns all five AM stations in Anytown, XYZ can put conservative (or liberal) talk hosts on one station and Polish polka on all the rest, eliminating the opportunity for another owner to present a counter-point.  Return of more reasonable limitations on ownership would result in a greater variety of owners and an increase in the diversity of voices in the marketplace.

In clarification of the legal standard of strict scrutiny and to nail the coffin on this, understand that the Supreme Court has determined that the Fairness Doctrine is a prior restraint on speech that requires strict scrutiny to pass muster.  In my opinion (in addition to that of the Court), forced fairness does not pass muster, in part because:

(i) The points of view expressed on the airwaves are not a legitimate government concern – there is no compelling interest to anyone except the person or party who believes they’re being unfairly treated. The concern (if legitimate) is not a government-wide or critical national concern (e.g. national security concern), so inherently the government has no compelling interest.  How can the government alone ever have a compelling interest in revocation of a fundamental right? Isn’t that what long-ago struck down anti-sedition laws were all about? (note to the unobservant – this is the nature of the site’s trademark: “the ongoing oxymoron”).

(ii) The speech-limiting effect of the Fairness Doctrine is not the least restrictive means to accomplish the stated goal of diversity of viewpoints on the airwaves.  Instead, re-installation of sensible ownership rules would give the FCC the perfect “out” that would result in diversity of voices on the airwaves without the issuance of government message mandates and the deployment of broadcast content nazis.

(iii) The anger certain politicians may feel from hearing the opinions and observations of conservative talk show hosts is arguably very well counter-balanced by TV news, talk shows and sitcoms, as well as by NPR, David Letterman, etc.

Regulation of political speech is clearly unlawful and contrary to the founders’ core beliefs. Actual fairness already exists in the marketplace.  It’s ultimately fairly simple.