Conferences / Symposia, Federalist Society, Free Speech, Media and Journalism, Politics

Free Speech: The Fairness Doctrine

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Over the weekend, we had the pleasure of attending the Federalist Society’s 2009 National Lawyers Convention, down in Washington, D.C. As in past years, conservative and libertarian legal luminaries were plentiful, and the panel discussions and other events were excellent.
Some folks — e.g., Josh Blackman — were liveblogging the proceedings. We’re only writing up the conference now, so you can call this “lateblogging” (both because we’re late in blogging about the conference, and blogging late at night; hey, better late than never).
This year, sadly, we missed most of the Thursday events (because of a speaking engagement at the ABA’s Law Firm Marketing Strategies Conference). The first Fed Soc panel we caught was on Friday afternoon:
Free Speech: The Fairness Doctrine

  • Prof. Thomas W. Hazlett, Professor of Law & Economics, George Mason University
  • Mr. Seton Motley, Communications Director, Media Research Center
  • Prof. Jamin Ben Raskin, Director, Law and Government Program, Washington College of Law, American University College of Law
  • Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
    Our rough notes on the discussion, after the jump.


    Seton Motley, Media Research Center
    Fairness doctrine created in 1949. In place from 1949 to 1987, then rescinded by Reagan’s FCC.
    The doctrine had a huge chilling effect on free speech. Many more radio stations today than before the withdrawal.
    There is no need for a fairness doctrine. “The left knows the jig is up on the fairness doctrine.”
    The left has moved on to other agenda items. But the principle remains that “they want to shut down perspectives with which they don’t agree.”
    Jamin Ben Raskin, American University – Washington College of Law
    (Joked about being the token liberal on the panel.)
    My view of the fairness doctrine: understandable but flawed, needs to be updated to reflect current circumstances.
    FCC arose because broadcast operators were competing too aggressively with each other, jamming each other’s signals, etc.
    Fairness doctrine designed to ensure broadcasters tackle political issues in a way that reflects the full spectrum of opinion.
    The fairness doctrine included the “personal attack” rule and the “political editorial” rule. Basically, if a radio station is using its piece of public property (radio airwaves) against you (personal attack), or to endorse a candidate against you (political editorial), you are entitled to the opportunity to respond.
    What is so objectionable about this? It is certainly constitutional. The idea of allowing someone who has been attacked to respond is not a foreign notion.
    But the fairness doctrine was admittedly difficult to administer. I agree with not trying to bring it back.
    Nobody is trying to revive the fairness doctrine. But the issues implicated by it appear in various contexts — e.g., net neutrality, campaign finance.
    We need to make sure we are fostering debate in our nation that is fair and not dominated by moneyed interests. We need to protect against corporations and their wealth from dominating our democratic discourse.
    Thomas Hazlett, George Mason
    Fairness doctrine addressed in the Red Lion case. SCOTUS upheld the doctrine 8-0.
    After 1987, when fairness doctrine was abolished, we ended up with more “public interest” content. Information content on AM channels skyrocketed (and also increased on FM channels).
    But there are other threats to free speech:

    • equal time rule
    • localism
    • media ownership rules
    • administrative radio spectrum allocation

    There are strong forces working in opposition to full First Amendment coverage for broadcasting.
    Also: there is no finite number of radio licenses. That is a myth. There is no physical scarcity here.
    The FCC is not getting abolished, but “I can dream like anyone else.” (Laughter.)
    2009 National Lawyers Convention Schedule [Federalist Society for Law and Public Policy]
    FedSoc LiveBlog: The Fairness Doctrine featuring Thomas Hazlett and Seton Motley [Josh Blackman’s Blog]

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