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Can't let a thread die...
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| quote: | The Return of the Speech Police
By DENNIS PATRICK and THOMAS W. HAZLETT
July 30, 2007; Page A13
Government regulation of broadcast speech clashes with the First Amendment. This is why 20 years ago the Federal Communications Commission voted 4-0 to abolish the so-called Fairness Doctrine, a rule that required broadcasters to cover "controversial issues of public importance" and to afford reasonable opportunities for the presentation of "contrasting perspectives" on those issues. By abolishing this rule, the FCC unleashed a dramatic increase in media coverage of controversial public-policy matters.
[Speech Police]
Still, not everyone is happy. Some, including Sen. Richard Durbin (D., Ill.), are calling for a return of the Fairness Doctrine. Rep. Maurice Hinchey (D., N.Y.) plans to introduce the "Media Ownership Reform Act," establishing a "fairness" mandate. Acknowledging that the amount of airtime devoted to discussion of politics and government has increased since 1987, champions of re-instituting the doctrine are nevertheless concerned about a perceived political bias, especially in AM talk radio. For some, it seems, less talk was better than so much of this kind of talk.
Re-imposing "fairness" regulation would be a colossal mistake. To understand why, it's important to review the lessons learned from a well-intended regulation gone wrong.
The Fairness Doctrine was an FCC policy dating to 1949. It set forth principles to which most broadcasters (and the authors) readily subscribe: Radio and television stations should endeavor to cover important public issues from "balanced perspectives." The problem arose from federal enforcement. Once a complaint was filed, a broadcaster was compelled to defend its editorial choices, including which issues were covered and how contrasting views were aired.
In 1969, the Supreme Court affirmed the policy's constitutionality against a First Amendment challenge, but did so based on the FCC's assurance that the net effect of the doctrine was to increase, not decrease, coverage of controversial issues. By 1985, the commission had changed its mind. Based on abundant evidence that broadcasters declined to cover certain issues for fear of license challenges, the commission concluded that the Fairness Doctrine "chilled" free speech, was bad public policy and was probably unconstitutional.
Still, the FCC declined to abolish the doctrine, deferring to Congress, which favored retention. (A bill to codify the doctrine was passed with bipartisan support but vetoed by President Reagan.) An awkward equilibrium resulted: An independent agency disapproved of its own regulation, while a congressional majority was unable to make it law.
The U.S. Circuit Court of Appeals for the District of Columbia forced the commission's hand. Acknowledging that the FCC "felt intense political, if not legal, pressure from Congress," the court noted that "we are aware of no precedent that permits a federal agency to ignore a constitutional challenge to the application of its own policy merely because the resolution would be politically awkward."
On Aug. 4, 1987, shortly after Dennis Patrick became FCC chairman, the commission eliminated the Fairness Doctrine. A hellish uproar ensued. Editorials attacked the decision as excessive Reagan-era deregulation. Congressional committee chairmen held press conferences to denounce the decision as "wrongheaded." Oversight hearings were convened and investigations launched. In the end, Congress found that four bureaucrats had complied with a court order to resolve a constitutional challenge, voting their consciences.
The Fairness Doctrine was bad public policy. It rested on the presumption that government regulators can coolly review editorial choices and, with the power to license (or not license) stations, improve the quantity and quality of broadcast news. Yet, as the volcanic eruption triggered by repeal amply demonstrated, government enforcement of "fairness" was extremely political.
Evaluations were hotly contested; each regulatory determination was loaded with implications for warring factions. The simple ceases to be easy once government is forced to issue blanket rules. What public issues are crucial to cover? How many contrasting views, and presented by whom, in what context, and for how long? The Fairness Doctrine brought a federal agency into the newsroom to second-guess a broadcaster's editorial judgments at the behest of combatants rarely motivated by the ideal of "balanced" coverage.
Broadcasters learned to play with their heads down. A controversial news report or edgy editorial comment could generate requests for free time to present a contrasting view as balance. And if disgruntled complainants remained, challenges could be filed at the FCC. Loss of license is a death penalty for the broadcaster, and stations would spend heavily on lawyers, consultants and lobbyists to avoid this possibility.
Stations were incentivized to offer bland, uncontroversial news reports, retreating to a safe haven protected from Fairness Doctrine complaints. The true costs of the policy could thus be counted by the issues not covered, the controversies not engaged and the information not conveyed to the public.
While the Fairness Doctrine remained in place, numerous journalists (including CBS's Dan Rather and NBC's Bill Monroe) offered compelling testimony that editors steered reporters away from particular areas due to fear of "fairness" complaints. But this was conjecture -- more systematic evidence of the doctrine's social costs was difficult to gather.
Once the repeal placed radio and TV licensees under a new regime, however, these costs became possible to quantify. Elimination of the Fairness Doctrine unleashed torrents of informational programming. Once unregulated, controversy raged.
In radio, where stations are categorized by formats, a 1997 study by Thomas Hazlett and David Sosa, published in the Journal of Legal Studies, showed news, talk, newstalk and public-affairs stations rising to 28% of AM radio formats in 1995 from 7% of AM formats in 1987. In FM, the increase was to 7% from 3% during that same period. Television broadcasters also added abundant news coverage, including a host of network-sponsored news magazines.
Just last week, the current FCC chairman, Kevin Martin, noted that "with the continued proliferation of additional sources of information and programming, including satellite broadcasting and the Internet, the need for the Fairness Doctrine has lessened even further since 1987." He is correct: The world without the Fairness Doctrine features exponentially more discussion of public issues from contrasting perspectives, much of it from new media outlets that were never subjected to the Fairness Doctrine. The robust diversity of the blogosphere and the ideological rivalry among competing cable news channels all speak to the advantages of permitting the marketplace of ideas to make its own editorial cuts, FCC-free.
In the old days, the Fairness Doctrine was almost universally popular among the political class. Left-leaning champions of regulation sought rules to counter the slant of "corporate" media. Simultaneously, conservatives sought to oppose the liberal establishment. Most troubling were those who privately conceded their true goal was retention of a federal "club" with which to "influence" reporters and their bosses. Potential Fairness Doctrine complaints made news editors timid champions of freedom of the press.
Today, right-leaning politicians have recanted, as the explosion in talk radio has given their ideas a platform never before enjoyed. Brian Andersen's 2005 book "South Park Conservatives" rejoices that free speech has proven far more hospitable to conservative views than GOP exponents of the Fairness Doctrine ever imagined.
Many American liberals, seeing (or hearing) the same outcomes, support the reimposition of the Fairness Doctrine. These advocates of content regulation need to be reminded of the words of one great liberal, the late Supreme Court Justice William O. Douglas, who wrote in Columbia Broadcasting v. Democratic Committee (1973): "The prospect of putting Government in a position of control over publishers is to me an appalling one, even to the extent of the Fairness Doctrine. The struggle for liberty has been a struggle against Government."
Mr. Patrick was chairman of the FCC from 1987-1989. Mr. Hazlett is professor of law and economics at George Mason University and was chief economist of the FCC in 1991-92. |
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