A short history lesson: Many may not know that the U.S. Constitution contains a Bill of Rights. Those rights contained therein are what is known as the ‘enumerated rights”, unalienable rights, granted by our creator, reserved to the people and not to be interfered with by government. Rights such as your right to self defense, defense against a tyrannical federal or state government, contained in the Second Amendment. Another right enumerated in the Bill of Rights is the First Amendment, the right to free speech. The First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The intent of the free speech clause was to specifically protect “political speech”. As with the Second Amendment, the First Amendment was written to limit government actions, not restrict citizens. Although the Bill of Rights as written only explicitly applies to the Congress, the Supreme Court has interpreted it as applying to the executive and judicial branches. Additionally, in the 20th century the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the Bill of Rights to each state, including any local government within a state. The Fourteenth Amendment is one of the post-Civil War Reconstruction Amendments, ratified on July 9, 1868, first intended to secure the rights of former slaves. It is now generally recognized that the Fourteenth Amendment applies the Bill of Rights to all States of the union, and all forms of government, State and local. Now we come to the fairness doctrine. Rush Limbaugh has an essay on the subject in today’s WSJ entitled “Mr. President, Keep the Airwaves Free” … with the subtitle ‘As a former law professor, surely you understand the Bill of Rights.’ The fairness doctrine is an abomination, concocted by the Democrats in Congress to try and insure fairness of the airwaves, it was introduced in the U.S. in 1949. Pres Reagan repealed the FCC rule called the Fairness Doctrine, arguing at the time that:
“This doctrine . . . requires Federal officials to supervise the editorial practices of broadcasters in an effort to ensure that they provide coverage of controversial issues and a reasonable opportunity for the airing of contrasting viewpoints of those issues. This type of content-based regulation by the Federal Government is . . . antagonistic to the freedom of expression guaranteed by the First Amendment. . . . History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.”
One important point, when originally implemented in 1949, there were relatively few, compared to newspapers, radio and TV stations broadcasting, and nowhere near nationwide coverage with multiple channels, satellites, and cable that we have today. The bands today are so crowded with choices, that the entire band is nearly filled, as competition for listeners and viewers is fierce among stations. So would the fairness doctrine apply to today’s marketplace of ideas, that’s a resounding NO!. There are so many stations that the differing points of view are heard everywhere. But even still, Congress has loaded the deck, with the government funded left of center NPR/PBS combination which is carried in near every market in the USA. The Fairness Doctrine and the courts: The Supreme Court has ruled on the Fairness Doctrine, in a case involving an on-air personal attack, the plaintiff sued, arguing that the Fairness Doctrine entitled him to free air time to respond to the personal attacks. This case was Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld by a vote of 8-0, the constitutionality of the Fairness Doctrine. However, the Court warned that if the Fairness Doctrine ever restrained speech, then its constitutionality should be reconsidered. Another case that of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court), “Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.” This decision differs from Red Lion v. FCC in that it applies to a newspaper, which, unlike a broadcaster, is unlicensed and can face a theoretically-unlimited number of competitors. But now the broadcasting situation of the market has changed once again. There are so many stations that it is literally possible to find whatever you want somewhere on the dial, every market served. With technologies such as HD-Radio, a single broadcaster can air multiple channels at the same time on the same frequency. The marketplace decides who gets heard, by voting with their eyes and ears. A station is not going to put on shows that draw little audience, and small ad revenues as a consequence. If ideas and show personalities are good, then the audience will come. Now back to Rush: Rush argues that
Mr. President, we both know that this new effort at regulating speech is not about diversity but conformity. It should be rejected. You’ve said you’re against reinstating the Fairness Doctrine, but you’ve not made it clear where you stand on possible regulatory efforts to impose so-called local content, diversity-of-ownership, and public-interest rules that your FCC could issue. I do not favor content-based regulation of National Public Radio, newspapers, or broadcast or cable TV networks. I would encourage you not to allow your office to be misused to advance a political vendetta against certain broadcasters whose opinions are not shared by many in your party and ideologically liberal groups such as Acorn, the Center for American Progress, and MoveOn.org. There is no groundswell of support behind this movement. Indeed, there is a groundswell against it. The fact that the federal government issues broadcast licenses, the original purpose of which was to regulate radio signals, ought not become an excuse to destroy one of the most accessible and popular marketplaces of expression. The AM broadcast spectrum cannot honestly be considered a “scarce” resource. So as the temporary custodian of your office, you should agree that the Constitution is more important than scoring transient political victories, even when couched in the language of public interest. We in talk radio await your answer. What will it be? Government-imposed censorship disguised as “fairness” and “balance”? Or will the arena of ideas remain a free market?
And to that I say dittos.