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Obama And The Fairness Doctrine

November 11, 2014

Our president-elect speaks with a moderate and reassuring tone on many of his policy views. But on some issues, the overwhelmingly Democratic Congress may have different ideas and likely will hand Barack Obama bills that are further left than his pronouncements.

Obama says he wants to raise taxes only on people with incomes over $250,000, for example, but what if Congress opts for a much lower threshold? Obama says he wants only to extend health insurance to those who lack it–but Sen. Ted Kennedy wants his ultimate legacy to be universal health insurance.

So it may be with the Fairness Doctrine, a long-discarded relic of an era in which the federal government dictated “balanced” programming on television and radio. Obama says he’s against reviving it; but House Speaker Nancy Pelosi and other congressional Democrats indicate otherwise.

The Fairness Doctrine, created in 1949 by the Federal Communications Commission, required broadcasters to present opposing views on controversial issues and to provide equal time to political figures who were attacked. The rule would force broadcasters who feature controversial personalities into a Hobson’s choice of either adding dissenting voices (which may reduce ratings) or removing controversial voices altogether.

Despite its obvious censorship of political speech, which is at the core of First Amendment protections, the Fairness Doctrine was upheld unanimously by the U.S. Supreme Court in Red Lion Broadcasting Co. v. F.C.C. in 1969. The Court reasoned that when the government licenses scarce broadcast spectrum, it may attach equal access conditions. Toward the end of the Reagan administration, the FCC itself found the doctrine unconstitutional and discarded it.

Wouldn’t the Fairness Doctrine bring greater balance to a broadcast media that is heavily dominated by liberals? Not likely. The Fairness Doctrine would not apply to biased news broadcasts, but to commentators who have an overt point of view. Worst of all, the doctrine would be applied on a case-by-case basis, giving Obama’s FCC the power to determine which speech should be suppressed.

The doctrine is even more blatantly unconstitutional today than it was when the FCC repealed it 21 years ago. Whatever the vitality of the Red Lion rationale in 1969, the advent of the Internet along with other technological advances have rendered the notion of spectrum scarcity utterly obsolete. Anyone who has something to say can find a medium thats effectiveness is bound only by the desire of people to listen (and sometimes even that boundary does not limit speech). A president-elect who owes his record-breaking fundraising and electoral victory in large measure to new forms of communication cannot plausibly justify censorship of traditional media outlets.

That does not mean that a Congress facing few constraints on its legislative whims will not resurrect the Fairness Doctrine–and that if it does, Obama will not sign it into law. Indeed, the FCC could do so by regulatory fiat. After all, didn’t the American people vote for “diversity”?

As in so many areas, the Republicans laid the groundwork for liberal excesses. The Bush FCC was very fond of censoring language it deemed “offensive”–a highly subjective standard. The trouble with that kind of precedent is that there are few things most liberals find more offensive than Rush Limbaugh.

For freedom and the rule of law to prevail, it must not matter whose ox is being gored. As the Fairness Doctrine rears its ugly head once again, it will be necessary to resist it with principled arguments–but at the same time, to resist all forms of censorship, regardless of how appealing it might seem when those we like happen to occupy the levers of suppression.

Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation and a research fellow with the Hoover Institution.



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