Free Speech: The Fairness Doctrine
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
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 In place from 1949 to 1987, then rescinded by Reagan’s FCC.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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Comments
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Captain First!
I'm no fan of the Fairness Doctrine (and I'm as liberal as they come).
I do, however, believe that right-wing hate radio appeals to the lowest common denominator for the sake of advertising dollars. You know, kind of like this blog, but much worse (and even dumber).
When are you not "lateblogging?"
3 - When they are beating the WSJ and Am Law to 90 percent of law firm news stories?
2, you mean radio stations play things that a lot of people want to listen to for the sake of making money from advertising? whoa. what a revolutionary concept.
We should silence talk radio with the Fairness Doctrine because we can't control the message. Three things we do control are the House, the Senate, and the White House. By the time the constitutionality of this law would get to SCOTUS, we might even control that.
Let's take talk radio down while we still can. The talk guys have some serious power, and if we can take them out of the equation it will be much easier to create the socialist state our founding fathers wanted and out people need.
2 is spot on.
Why can't "right-wing hate radio" present the issues in an objective, non-partisan fashion like Air America Radio, MSNBC, NPR, NYT, WaPo, LA Times, CBS News, NBC News, ABC News, CNN, Newsweek, etc.?
The Fairness Doctrine is necessary to keep dangerous "traditional views" off the public airwaves. Just because you have an opinion that people want to hear doesn't mean you're entitled to share it.
Nominations for Fairness Doctrine Czar now being accepted.
AIRWAVES SECURE
Fed Soc? Is that some kind of covering for the feet of fat overprivileged WASPs living in DC?
Why are conservatives so much better at using talk radio than liberals?
(I'm not a conservative. I'm just curious.)
9, because conservatives have the testosterone to create deep, rich, and velvety tones perfect for radio broadcasts. Liberals, on the other hand, lack the requisite balls. This results in a shrill, whiney and altogether unpleasant listening experience.
10 - Um, have you listened to NPR at all? What they're saying may be crap, but their tones are "rich and velvety."
2 is right. Any speech that doesn't incessantly promote higher taxes, collectivism, serfdom and buggery is, by definition, hate speech.
12 - Buggery? Seriously? C'mon....
I kinda like the fairness doctrine. It might make for more intelligent discussion then we have under Rush Limbaugh, Glenn Beck, Keith Olbermann, and Jon Stewart.
Do we really need the Fairness Doctrine in light of the proliferation of media outlets (esp. on the internet)?
Commenter 9,
Working class conservatives have to listen to radio because there is a large segment of them that work from their vehicles (truck drivers, outside salesmen, small business owners, etc). As a result there is a much demand for conservative talk radio, and Rush & Co supply the hot air to meet demand.
Working class liberals do not listen to the radio because they can instead watch cable from their home on their flat screen tv because they do not have jobs. There is simply no demand for liberal talk radio because these people are not forced to the airwaves for daytime entertainment.
If we stopped subsidizing laziness, working class liberals would be forced to work in jobs like the ones mentioned above. As a result, demand for liberal talk radio would be created, and Olbermann & Co would grab a mic.
I am aware that there is one fundamental flaw in this model. If these working-class liberals had jobs, I am not sure if they would still be liberals.
-Economist Secure
Oh, me next! I have a question!
Do conservative talk show hosts really believe the ridiculous bullshit coming out of their mouths, or are they just playing the hate card for ratings?
Agreed 17.
Radical ideas like limited government, low taxes, individual liberty, private property rights, strong national defense, and personal responsibility have no place in civil public discourse.
Liberals like me should not be made to feel intimidated by the playing of such "hate cards for ratings."
Therefore, I declare conservative talk radio to be hate speech, and move that the Fairness Doctrine Czar revoke their licenses under the hate crime laws.
AIRWAVES SECURE
Wow!
A whole panel discussion on a doctrine that has been inoperative and obsolete for over twenty years, and one whose biggest fans don't even support bringing back.
Must be great to be a professor and give papers on the battles other people won for you in 1987
Economist Secure is an interesting read. I certainly don't agree with everything he/she writes but I hope he/she keeps commenting for the sake of the discussion.
First to suggest Affirmative Walrus is Lat.
20,
Economist secure just made up a bunch of bullshit with no figures to back him up. To take such comments seriously shows you to be a fool.
That is, unless you're just trolling.
Conservative talk radio works so well because populist conservative themes can be reduced to meaningless sound bites and talking points and regurgitated ad nauseum in light of the latest isolated "liberal" outrages. The content is absent, but the passion and vim and vigor are resplendent. When's the last time Limbaugh or Hannity or Michael Savage invited any conservative law professor or social scientist on their shows? If it's happened, it's been rare and the reason why is that conservative talk radio is meant for simpletons, idiots, racists and bigots (of which there are many in our country). That's why it thrives, that is how it will continue to thrive and that's exactly why liberal talk radio will always miserably fail.
Liberal talk radio will never work because the vast majority of scholars in the social sciences, law and policy already dominate the stream of research and opinionated thought when it comes to progressive law and politics. The liberal block is facilitated in this regard by the mainstream media, which understandably and justifiably seeks out mainstream progressive scholars and researchers over conservative media superstars when reporting on important legal and/or political issues.
The fairness doctrine is useless. We intelligent, rational, sensible people should enthusiastically let conservatives have their talk radio and World Net Daily and Washington Times and Front Page Magazine and Redline and Hannity and all that. It guarantees that conservatives will never be taken seriously by the academic and legal and journalistic elite in our country and allows us a perfect foil.
Bravo, conservatives!
Bravo, 23. If anyone in my law school class tells me that they listen to conservative talk radio, I immediately put them in the moron pile (unless they have just done it to get a sense of how stupid conservative talk radio is). Pretty sure that every faculty member and most other students would, as well. It's a hard pile to dig out of, but Sarah Palin is attempting as we speak (though she's hurting her chances by appearing live on television where someone else is allowed to ask her unscripted questions, like today).
23 = Fail
The Dems came to power in the last election threatening to bring back the Fairness Doctrine. No one doubted this was in reference to Conservative dominance of the radio waves.
Although I don't agree with him/her, 16's post is far superior to yours insofar as it can actually account for a division in media preference. In fact, your explanation completely fails in that regard ("that's why liberal talk radio will always miserably fail"). First, Liberal ideas cannot be reduced to sound bites? You beg the question. Is TV, as opposed to radio, qua medium more conducive towards lofty ideas, thereby filtering out the "idiots, bigots, racists." etc.? Is that why Olbermann, Anderson Cooper, Nancy Grace, etc., are on TV and not radio?
Second, so-called liberal dominance research and "opinionated thought" (whatever that is) has nothing to do with the transmission of news information. In case you've been on a different planet, there's almost a complete disconnect between readers and writers of academic literature, whatever their political bent, and the rest of the world,
Further, you think the "mainstream media" facilitates transmission of that information by occasionally having academics as guests? Have you ever watched any cable news programs? MSNBC, CNN? (You'll also take note that all "mainstream" news media fare relatively poorly, but with FOX being the largest draw for the last 80 months or so consecutively. If you also investigate the number of cable news network viewers compared to radio viewers, you'll find it difficult to exclude radio from "mainstream media", which you must if you wish to retain your claims that 1, radio qua medium is not conducive to liberal thought and 2, that "mainstream media" favors liberal values). One can be a full-fledged Left-winger and still hold that the preponderance of the "mainstream media"'s content is both mostly liberal and retarded. These are not mutually exclusive terms. They, (I include here Stewart et al) bring academics on to their programs only to dumb down their views into sound bytes for quasi-illiterate college kids and other such ignoramuses that watch such programs. Simply having liberal academics on one's program does not mean the academics are engaged in any highfalutin exposition of their research. More often than not, they're just expressing their own prejudices at a basic level. This "sampling bias" is no proof of the content's truth value or quality.
Your conceit does not match your logical thinking skills, you liberal scum.
#9 - liberal AM talk show formats are not very successful because most of the news on TV and most major newspapers have a liberal bias. Liberals don't need to go to alternative sources of news such as AM radio to hear a liberal perspective. On the other hand, if you want to hear a conservative perspective, AM radio and FOX opinion shows are about the only place you will find it.
Also, liberals have NPR.
#23 - Limbaugh very rarely has guests. That is not his format. There are many conservative talk shows that interview scholars. Michael Medved, Dennis Praeger, and Hugh Hewitt are a few examples. Probably Larry Elder too.
It is sad that you are so condescending to people just because they hold different views. Name call often?
Forced speech, genius!
"conservative and libertarian legal luminaries" is an oxymoron
Is this the panel that featured Susanna Dokupil?
25,
A better explanation of why liberals watch tv rather than listen to the radio would be higher rates of A.D.D.
16-
Howcome conservatives assume that people who are unemployed are liberal and prefer to collect a government check instead of working?
32: Because many conservatives don't base their beliefs, stereotypes and assumptions on facts and reality and instead parrot whatever their favorite talk radio host told them is true.
25 = fail. Non-conservatives will always dominate the elite industries and sectors of society in this country because very smart people will always overwhelmingly reject religious dogma for science, intolerance for open-mindedness and simple-minded platitudes for empirical research. Progressives will always be secure in the upper (and middle) echelons of law, media, academia, business, government and the arts.
Anything to get those right-wing wackos off the air, I'm in favor of. (I'm not trolling here. I think that Rush, Sean, etc. are absolute lying, racist, hateful pigs who need to be silenced)
34, why do they need to be silenced? if they are so lying, racist, and hateful as you say wouldn't their advertisers leave and do the job for you?
33 = fail.
In NO way did you respond to my post.
35:
No. You know damed well that despite being the racist scumbag that he is, Limbaugh has millions of little followers who suck up every word he says. Advertisers don't care if someone's creepy and racist; they just care about the number of listeners. Unfortunately, about a third of this country is Sarah Palin- and Rush Limbaugh-loving racist, stupid, angry morons.
--34
And unfortunately another third is comprised of bigoted, conceited, ignorant liberals like yourself.
Can't we just all agree that conservatives will never win respect from very intelligent and powerful people?
39,
Think of what you just wrote and then slap yourself.
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