The Fairness Doctrine: the Bcs of American Politics - Josh Martin

• Publication year: 2009

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The Fairness Doctrine: The BCS of American Politics

In most sports, the team that wins the most games is either crowned champion or goes into a playoff with other outstanding teams. College football is not like most sports. On January 2, 2009, the University of Utah's football team completed an undefeated season by beating the University of Alabama in the 2009 Sugar Bowl.¹ Six days later, two one-loss teams played for the Bowl Championship Series (BCS) National Championship; Utah was not invited.² Unlike in most sports, many teams in college football—those from the "mid-major conferences"³ —begin the season with no chance at a championship, even if they win all of their games. The BCS ranking system, created a decade ago by the major conferences to choose the teams that play for the official national championship, has never given a mid-major school a spot in the game.⁴ This is despite five perfect seasons by mid-major teams since the BCS was created.⁵ Unfortunately, this sort of fundamental unfairness is not limited to the sporting world. For many decades, the federal government enforced regulations that allowed political operatives to harass opposing voices on radio and television and to silence broadcasters who aired unorthodox and unpopular viewpoints.⁶ The "fairness doctrine" was rightly tossed on the ash heap of history more than twenty years ago, but politicians—salivating over the power to silence their critics—continue to call for its return.⁷

I. Introduction

The First Amendment⁸ severely restricts the government's ability to regulate the content of most forms of political speech.⁹ Generally, the government cannot regulate speech in ways that favor some viewpoints over others.¹⁰ Viewpoints that are broadcast on radio or television, however, are not like most forms of political speech.¹¹ Chief Justice Burger wrote that federal regulation of broadcasting presents "an unusual order of First Amendment values."¹² The order is so unusual, in fact, that the government can regulate the content of broadcast political speech in ways that are unequivocally unconstitutional if applied to any other form of communication.¹³

The fairness doctrine was a Federal Communications Commission (FCC) regulation that required broadcasters to provide news and issue programming that was—naturally—fair and that presented opposing viewpoints on controversial issues.¹⁴ The policy had its roots in the Progressive political movement of the 1920s and was long believed to be in the public interest.¹⁵ At first glance, the goal was admittedly laudable. What reasonable person is against fairness in political discourse? As the quote often mis-attributed to Voltaire goes, "'I disapprove of what you say, but I will defend to the death your right to say it.'"¹⁶

The problems with this seemingly reasonable policy, however, are many. There is much misinformation and misunderstanding polluting the public debate about the fairness doctrine, a debate that took on a more urgent tone with Barack Obama's election in November 2008.¹⁷ The fairness doctrine grew out ofan unprecedented and legally unsound theory of the First Amendment that was properly rejected in the 1980s. It did not protect the fairness ofpolitical discourse in any way. In fact, to borrow a sports analogy, it provided mainstream politicians with a permanent slot in the playoffs while denying others any real chance to compete. Finally, far from enhancing broadcast political programming, the policy actually dulled the political discourse available to the listening public.

Part II of this Article examines three aspects of the history of the fairness doctrine as a component of federal broadcasting regulation: (1) how the FCC acquired the awesome power to review the content of political speech and silence those broadcasters who were not "fair" enough, (2) how bureaucrats and political operatives used and misused this power to manipulate the programming available to the listening public during the mid-to-late twentieth century, and (3) how President Ronald Reagan's FCC gave up the power. Part III follows with a brief discussion of the current hope or fear that the new administration will reinstate the doctrine and explains why this octogenarian ofa regulation is not good public policy for the internet age.

II. THE COMPETING PHILOSOPHIES OF BROADCASTING REGULATION

"Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate:__." .... [T]he Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the "fairness" of political debate.¹⁸

Justice Scalia was discussing campaign finance reform in this passage.¹⁹ However, his words eloquently express the fundamental flaw in American broadcasting regulation for most of the twentieth century: a government of opinionated officials cannot be expected to use the power of the state to ensure that political discourse is fair and the opinions of the powerless are heard.

A. Prior to 1927: The Right to Transmit

In the first decade of the twentieth century, the radio spectrum²⁰ was "a new, wide-open frontier, akin to the American West," free of government regulation and largely independent of corporate influence.²¹ Wireless communication grew naturally as amateur hobbyists built their own radio transmitters and exchanged messages with other hobbyists. In the early days of radio, there were few people broadcasting—transmitting signals not directed at any particular receiving party but instead to whomever wished to tune in—and no limitations on what could be sent over the airwaves.²² Anyone with a transmitter and an opinion was perfectly within his rights to broadcast his political views, just as today citizens are generally free to publish their thoughts in print or on the internet.²³ At this point in the history of radio, however, not many people were listening. That soon changed.

Shortly after the early amateur enthusiasts took to the airwaves, commercial and military interests began to see the potential ofwireless communication. Private shipping companies and the United States Navy began to use radio technology for ship-to-ship and ship-to-shore communication.²⁴ Unfortunately, some amateur broadcasters, upset by commercial and military intrusion onto their unregulated playground, succumbed to "antiauthoritarian sentiment" and tried to make the new medium less useful to the competition by creating signal interference and making obscene transmissions.²⁵ Most regrettably, some amateurs made fake distress calls that sent the Navy and United States Coast Guard on hopeless rescue missions.²⁶ Ironically, these misguided attempts to preserve the freedom of the airwaves provided the earliest justification for federal broadcasting regulation: preventing malicious interference with legitimate transmissions.

In direct response to the Navy's complaints of malicious interference, Congress enacted the first major regulatory scheme for radio communication with the Radio Act of 1912 (the 1912 Act).²⁷ Importantly, this legislation did not expressly give the federal government ownership of the airwaves; that was yet to come. Instead, the 1912 Act simply required all radio operators to be licensed by the Secretary of Commerce and Labor.²⁸ Licensed operators were required to follow certain rules specified in the 1912 Act to keep their licenses, but the 1912 Act did not give the Secretary the power to deny licenses outright.²⁹ Congress retained, at least in form, the theory that the radio spectrum was the property of the people, and that all people had a right to use it.³⁰ However, in effect the 1912 Act created the first of many barriers preventing the people from speaking over their airwaves. Indeed, Congress gave commercial and military operators exclusive use of the choice frequencies in the spectrum, while amateur users were relegated to the minimally useful shortwave band.³¹

Despite limiting access to the airwaves and solving the immediate problem of malicious interference, the 1912 Act soon proved inadequate. A later member of Congress said that the 1912 Act all but continued the pre-regulation reality that "'anyone who will may transmit.'"³² This approach was workable when broadcasting was merely a novelty and there was plenty of room on the airwaves for all commercial stations, small or large, but the approach started to crumble after World War I.³³ While Congress seemingly cleared the airwaves by excluding amateur operators, it had not foreseen the potential for explosive growth in commercial broadcasting; in fact, the 1912 Act did not even mention broadcasting.³⁴

On November 4, 1920, station KDKA in Pittsburgh, Pennsylvania, made America's first scheduled radio broadcast.³⁵ Broadcasting grew slowly for a few months and then suddenly exploded like nothing before or since.³⁶ Secretary of Commerce (later President) Herbert Hoover called the expansion of radio in 1921-1922 "one of the most astounding things that has come under my observation of American life."³⁷ Secretary Hoover estimated that in one year, the number of American households with radios increased from fifty thousand to six hundred thousand.³⁸ Correspondingly, the number of licensed commercial stations increased from thirty to over five hundred during 1922.³⁹ Radio rapidly became a major business. However, under the right-to-transmit philosophy of the 1912 Act, "anyone with a radio transmitter, ranging from college students experimenting in science classes, to amateur inventors who ordered kits, to...