Policing the First Amendment
Four members of Congress, all of them Democrats — Sen. Bernie Sanders of Vermont and Reps. Dennis Kucinich of Ohio and Maurice Hinchey and Louise Slaughter, both of New York — are moving to bring back the Fairness Doctrine in broadcasting to ensure more “diversity of views” in a time when conservative hosts and commentators have larger audiences than liberal counterparts.
In effect by the Federal Communications Commission from 1949 to 1987, the Fairness Doctrine mandated that broadcast stations devote a reasonable amount of time to discussions of controversial issues of public importance — and that the broadcaster was required to offer reasonable opportunity for opposing viewpoints to be heard.
If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment — precisely the opposite of what the founders clearly intended.
Of all justices of the Supreme Court, the most persistent defenders of freedom of speech have been Louis Brandeis, William Brennan and William O. Douglas. In 1973, Justice Douglas thundered: “The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends.”
During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent.
After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply.
This happened at other stations as well. Champions of the Fairness Doctrine glowed in triumph, emphasizing that due to the “scarcity” of stations around the country, the Supreme Court — in its 1969 decision in Red Lion Broadcasting Co. v. FCC — had been correct in upholding the constitutionality of the Fairness Doctrine. This rationale for circumscribing the First Amendment by government dictate came to be known as “the scarcity doctrine.”
But in 1984, the Supreme Court came to its First Amendment senses in FCC v. League of Women Voters. In view, ruled the Court, of the continually multiplying number of radio and TV channels around the country — and, I would have added, the growth of one-newspaper towns and cities — the “scarcity doctrine,” as it applied to broadcasters, diminished free speech.
Three years later, the FCC concurred: “The intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters … (and) actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.”
Nonetheless, in 1987, a bill to restore the Fairness Doctrine passed the House by a 3-to-1 margin and the Senate by nearly 2-to-1. (With Democrats now in control of both chambers, this could happen again.) Then-President Reagan, who had been an active broadcaster (as in the “Death Valley Days” series), vetoed the bill because it was “antagonistic to the freedom of expression guaranteed by the First Amendment.”
Should this enemy of free expression become law again in coming years, it would very likely also extend to FCC bureaucrats’ taking charge of freedom of speech on cable television and the Internet and continuing new forms of expression — under the mandate of the FCC’s definers of “diversity of views.”
There are liberals who preach the need for “diversity of views” in calling for the return of the Fairness Doctrine because they bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators. But these liberals ignore why we have the First Amendment. As Oliver Wendell Holmes emphasized: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not the thought that we hate.”
The framers of the Constitution, in which the First Amendment is embedded, knew from experience that government control of freedom of speech and thought could lead to tyranny. Imagine if Tom Paine had had to give equal time to the royal governor’s opposing views. With the “scarcity doctrine” ended, Justice Douglas was right: “TV and radio stand in the same protected position under the First Amendment as newspapers and magazines.”
Published with the permission of Nat Hentoff. May be linked to but not republished without Hentoff’s permission. Originally posted on The Washington Times Web site on Jan. 29. Hentoff is a contributing editor to Editor & Publisher and also writes for The Village Voice in New York.