The Fairness Doctrine
Borked
In 1987 an unprecedented fight over the legal philosophy of the Judiciary of the United States led to the rejection by the Senate of the Reagan administration nomination of Robert Bork http://en.wikipedia.org/wiki/Robert_Bork . Judge Bork was a “constitutional originalist”, a jurist whose interpretations of the law, and particularly the Constitution turned on his knowledge of the legal intent of the people who wrote it. This philosophy can be seen fundamentally expressed by Alexander Hamilton in the "Federalist Papers", #78. http://www.yale.edu/lawweb/avalon/federal/fed78.htm A key philosophical foundation, taken from this paper is that there is no-
"superiority (supposed) of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
In liberal philosophy the power of the Judiciary to effectively amend the Constitution to do what leaders deem “right” without resorting to the arduous task of ascertaining and engaging the “will of the people” has become the last resort of those who could not obtain the people’s legislative blessing, so a tremendous marshalling of liberal organizations in opposition to Bork’s nomination was organized.
In public discussion and news reports Bork’s judicial philosophy was characterized as being a path back to back-alley abortions, Jim Crow laws, and the dissolution of the social progress of the 20th century. There was virtually no discussion of the foundations in political philosophy on which originalism rests. At the time of these attacks, not merely on his philosophies but even his character, Judge Bork had little concerted public defense to raise the legitimate issues for which he spoke. In electronic media constrained by the chilling effects of the “Fairness Doctrine” his critics were heard by all, his defenders were accorded virtual silence.
Thawing the Soapbox
At the same time as these events were occurring a transformation was overtaking the public airways. A series of court cases, focusing on both the areas of technical issues relating to greater carrying capacity within given radio spectrum ranges and the advent of new tele-texting technologies and on the growing concern within the Supreme Court that the Fairness Doctrine was chilling political speech had led, during the ‘70s and early ‘80s, to a whittling away of the underlying assurance that the limitations of the doctrine were, in fact, fair. Cases of particular note are FCC v. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, 468 U.S. 364 (1984) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=468&invol=364, In which current Supreme Court Justice Samuel Alito argued for the plaintiffs, and Telecommunications Research & Action Ctr. v. F.C.C., 801 F.2d 501, 517-18 (D.C. Cir. 1986) In which the D.C. Circuit court held that the Fairness Doctrine was not <em>mandated by statute</em>. This trajectory culminated in August of 1987 with a 4-0 vote of the FCC board rescinding the doctrine.
The Doctrine itself, furthermore, had something of a checkered past. In a paper entitled “The Fairness Doctrine: A solution in search of a problem” http://www.law.indiana.edu/fclj/pubs/v47/no1/cronauer.html Adrian Cronauer addresses uses of the powers of the Fairness Doctrine to actively squelch public comment-
"Bill Ruder, an Assistant Secretary of Commerce under President Kennedy, told how Kennedy's administration used the Fairness Doctrine to challenge and harass right-wing broadcasters, in the hope the challenges would be so costly that these broadcasters would find it too expensive to continue their broadcasts” (see footnote 14 of that paper)
Cronauer also notes similar behavior by Spiro Agnew as well as threats as early as 1933 (before the advent of the formal “Fairness Doctrine” in 1947) by a member of the Federal Radio Commission against radio stations criticizing Roosevelt administration policies.
Much has been made in public debate of the Supreme Court having upheld the Fairness doctrine. (Red Lion Brdcst. Co. v. FCC, 395 U.S. 367, 389-90 [1969]) Interestingly, the rationale behind that decision seems to have turned on the scarcity of the government– owned resource- the radio spectrum- employed in the communication of ideas, whereas later decisions of the court dealing with technological expansions encroaching on the use of the same limited resource exempted other technologies from the same restrictions. This seeming inconsistency prompted the D.C. Circuit court to chide the senior court, as noted in footnote 94 of Cronauer’s paper-
The D.C. Circuit also invited the Supreme Court to revisit Red Lion, observing how such analysis "inevitably leads to strained reasoning" and concluding "the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference.”
Numerous attempts have been made to revive the doctrine, starting with the Senate’s refusal for three years to approve Reagan and Bush administration nominees to the F.C.C. (Cronauer), but in light of the Doctrine’s increasingly questionable legal footing these efforts have failed.
Another item of interest is how the doctrine began to unravel. In the FCC v. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, 468 U.S. 364 (1984) case noted above the original plaintiff was Pacifica Foundation http://www.pacifica.org, the nationwide, largely liberal leaning, educational radio network. Fairness Doctrine regulations prevented educational stations operating within frequencies set aside for educational purposes from expressing editorial opinions. One may note with some humor that the 1984 opinion struck down that provision of the doctrine.
The Present Debate
It cannot be argued that there is less access to opinions or news as a result of the demise of the Fairness Doctrine. Whereas in 1980 there were 75 radio stations in America dedicated to political controversy or news and talk, by 2004 there were more than 1400. This, according to Why is Talk Radio Conservative?” By William G. Mayer (findarticles.com). http://findarticles.com/p/articles/mi_m0377/is_156/ai_n6156821/pg_1 That number, according to Mayer, does not include not-for-profit radio stations such as the previously mentioned Pacifica stations or National Public Radio where conservatives, at least, believe liberal views are well represented. It is, in fact, the end of the Fairness Doctrine that permitted these stations to have overt political content at all!
It appears, instead, that liberals are intent on making an issue of the differential in content time on commercial radio stations, where liberal views are more often presented as counterpoints to be obliterated than as serious beliefs. This is an indication to many liberals that there is a pervasive conservative bias in the management of the radio industry. Mayer addresses this notion with two sets of survey results. The first of these, referenced on the first paragraph of page seven of his article, http://findarticles.com/p/articles/mi_m0377/is_156/ai_n6156821/pg_7 addresses the matter of sheer numbers of self-identified conservatives vs. self-identified liberals in a compilation of more than 130 surveys by ten different polling organizations recorded on the Public Opinion Location Library, or POLL, an on-line database maintained by the Roper Center at the University of Connecticut. In that information Mayer found that self-described conservatives outnumbered self-described liberals about 1.8 to 1.
The second key piece of information, referenced on the fourth paragraph of the same page, speaks to a far more important reason for the difference in audience. Mayer describes it thus-
"Of all the reasons that allow conservative shows to dominate the talk radio market, probably the most important is that conservatives think they have a greater need for these shows--that talk radio provides them with information and viewpoints that they simply cannot get from the 'mainstream media.' American liberals are, on the whole, much less aggrieved about the way the news gets reported on the three major television networks and in most major newspapers."
Mayer follows this with some pages of statistics showing, essentially, that whatever bias or lack thereof the nation’s media believe they may hold conservatives trust them far less than liberals do. Conservatives very frankly fear misinformation, disinformation, and a simple lack of information much more than their political opposition. In the face of this siege mentality they will go farther out of their way to get information than their liberal counterparts will.
With these things in mind an analysis of the current ferment among liberal media-oriented groups such as the George Soros funded Move-on.org and Media Matters would seem to indicate that the effort is primarily intended to generate an atmosphere of media distrust in the liberal audience consonant with that which is native to the conservative population.
If the strategy is to eventually force a return to the courts, as would inevitably happen if liberals in power managed to restore a Fairness Doctrine, it would be incumbent on liberals to show the end of the policy had, in fact, materially harmed access to information for the liberal population. With the current construction of the court, particularly with the presence of Samuel Alito, (though there might be calls to have him recused) it seems very unlikely this challenge would stand. The failure of the appeal to the courts, then, would be used as a reason to urge a “return” to liberal activist philosophies in replacements for retiring members of the court and for election of the Democrats who would appoint and approve them.
Resulting, more liberal, courts could be counted upon to approve a reinstatement of “Fairness”.
Calumny in the Open Air
With the retirement of Thurgood Marshall in 1991 the first Bush administration put itself to the first real test of the new atmosphere resulting from the end of the Fairness Doctrine. Bush nominated Clarence Thomas http://www.supremecourthistory.org/myweb/justice/thomas.htm, a young appellate judge with only a slight paper trail of past decisions but a record of support for a Bork-like originalist judicial philosophy. The liberal establishment rounded up virtually the same coalition of ardent voices to thwart the nomination as had been arrayed against Bork. This time, however, they faced, in addition to the narrowly drawn sound-byte media of four years prior, a concerted effort by conservative talk radio to give context to the otherwise arcane vituperations over political philosophies. Many people heard for the first time the protective agency inherent in Constitutional constructivism.
As the vote of the full Senate loomed it was clear liberals had lost the fight against Thomas on philosophical grounds. An anonymous leak to NPR political correspondent Nina Totenberg http://www.npr.org/about/press/050309.totenberg.html alerted the media to a charge by a former assistant to Judge Thomas named Anita Hill, http://news-service.stanford.edu/news/2002/april3/anitahill-43.html that he had sexually harassed her. What followed was pure political food fight played out in the lurid light of day.
Remarkable primarily for their triviality and the “she said/he said” equivocation they forced into the debate over one of the nation’s highest offices, the actual charges were clearly, at least to conservative sensibilities, intended to play against conservative’s perceived prejudices against black men. They simultaneously were intended to play against a presumption that a woman would not bring such charges frivolously. In the resulting extention of the confirmation hearings Judge Thomas characterized the charges in this way-
"This is a circus. It’s a national disgrace, It is a high-tech lynching for uppity blacks who in any way deign to think for themselves and it is a message that unless you kowtow to an old order you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."
On the airways the debate concentrated on how any firm ground for due consideration of fairness or verifiability had been cast away over the importance of "the seriousness of the charges” http://www.freerepublic.com/focus/f-news/1904827/posts
In the end the “Hail Mary” of the left failed and Thomas was confirmed by a 52- 48 vote of the full Senate. http://en.wikipedia.org/wiki/Clarence_Thomas In the aftermath of the events of his confirmation hearings this is often cited as the closest approval of a justice in more than a century, but, given the forces arrayed against Thomas’s confirmation it can also be seen for what it was- a shift of ten “no” votes to “yes” in the four years since the previous nomination of an originalist jurist, in spite of the most vicious media campaign ever organized against a Supreme Court nominee.
No less effort has gone into the opposition to George W. Bush’s most recent originalist Supreme Court nominees, but the left has not been able to overcome the philosophical clarity forced onto the debate by conservative media. The nominations, though hotly opposed by liberals, have advanced fairly quietly. Open debate in a brightly lit public square made this possible.
Conclusions
The Fairness Doctrine, always a highly questionable and easily abused governmental policy in its best days, died a natural death in the 1980s. Attempts to revive it have failed largely because of the combination of questionable legal footings for government restrictions on the content of electronic media and the openness of the new public forums made possible by its demise. In the wake of the change the dramatic difference in public debate has had a material effect on the attitudes of much of the politically interested population. The slow sea change in the Supreme Court is just one indication of this at work.
It is possible for the tide to change and for liberals to prevail, and reassert both a “Fairness Doctrine” and the governmental changes such a chilling policy would permit, particularly if a more and more rancorous political debate frightens people into indifference, but it at least seems possible that the changes wrought in the electorate who now so strongly support our electronic public forum are permanent. It will probably be a very difficult fight for the left to win.
