Nicholas Johnson Explains It All

Nicholas Johnson on the purpose of the old Fairness Doctrine:

There is no requirement that any given programming be put on the air -- or taken off. There are no requirements as to format. There is not a requirement of "equal time." There is no requirement that each program be balanced; the Fairness Doctrine only addresses the overall programming of the licensee. (To respond to a charge of those opposing the reinstatement of the Fairness Doctrine, there are two reasons why Rush Limbaugh would not only not be taken off the air but would not be affected in any way by application of the Fairness Doctrine: (1) he is not a licensee, he is a program supplier, and (2) there is no Fairness Doctrine requirement that his program be balanced.) There is no requirement that a particular contrasting view be aired. The Fairness Doctrine does not trigger a right in any given individual to respond. (The station can use its own personnel if it wishes, or anyone it chooses.)

Essentially the only limitation the Fairness Doctrine did impose was that a licensee could not use the public's airwaves as an unrelieved instrument of propaganda for a single viewpoint while censoring all other views.

Do click over to Johnson's blog to read his complete entry, as well as links to his thoughts in 1968 and the Supreme Court case in 1969.

Two days ago, in the National Review:

Victory was fast and shockingly easy. The battle over the Fairness Doctrine ended last week when the House of Representatives voted 309-115 against allowing the Federal Communications Commission to re-impose the regulation on broadcasters. The vote almost certainly means that the long-dead rule will not be revived anytime soon. That’s good news. But the celebrations should be tempered: the real battle over media regulation is still to come, and won’t involve the words “Fairness Doctrine.”

...Kucinich’s call attracted much media attention, and more than a little criticism, but little was actually done to advance the idea legislatively. It probably would still be on the back burner were it not for — of all things — illegal immigration. During the acrimonious debate over immigration reform, “AM armies” roused by conservative talk-show hosts proved to be a powerful — and to many legislators, unwelcome — force.

Angered by this, a number of amnesty opponents — from both sides of the aisle lashed out against talk radio. Liberal leaders seized the moment to call for the Fairness Doctrine’s return.

It was a political mistake of the first order. Conservative radio-talk-show hosts from Rush Limbaugh to the smallest local personality hit back hard against the idea. It seemed near impossible to turn on your car radio without hearing about the issue. But it wasn’t just incensed conservative talkers who quashed the idea. No one seemed to like it. Even the normally liberal-leaning blogosphere produced few defenders of a Fairness Doctrine revival. It was just too obviously an attempt to stifle speech.

I always liked what Nat Hentoff said about the Fairness Doctrine. This is from a column of his in 1999 when Bill Bradley was running for President:

In 1949, the Federal Communications Commission created the "Fairness Doctrine."

Broadcasters had to provide equal time to each side of a public issue. Twenty years later, a unanimous Supreme Court upheld the constitutionality of that doctrine (Red Lion Broadcasting Co. vs. FCC).

Newspapers and other forms of printed speech could not be forced to give equal space because they are not licensed by the government. But, the Court ruled, since broadcast frequencies are limited, the public interest required government intervention to ensure that other voices could be heard.

Later, Justice William O. Douglas, who had not participated in the earlier decision, vigorously dissented from it: "TV and radio stand in the same protected position under the First Amendment as newspapers and magazines. The prospect of putting government in a position of control... is to me an appalling one, even to the extent of the Fairness Doctrine."

...In the early years of the Fairness Doctrine, I was working for a radio station in Boston. Soon after listener complaints of unfairness to the FCC resulted in mounting legal costs to answer stern FCC inquiries, the boss ordered us to cease all controversial broadcasting. This also happened at other stations.

Nonetheless, Congress, in 1987, passed a law codifying the Fairness Doctrine. But it was vetoed by President Ronald Reagan, who said it violated the First Amendment, and that the proliferation of cable channels and radio stations nullified the argument that radio and TV outlets were scarce.

In the same year, the FCC itself unanimously abolished the Fairness Doctrine as an unconstitutional limitation of free speech. There are still members of Congress eager to bring back the Fairness Doctrine. Apparently, President Bradley would agree.

While the debate about forced fairness on the air was going on, and as more stations fearfully left the free marketplace of ideas, I spoke to Richard Salant, then president of CBS News.

Salant, along with Fred Friendly, who had also once been president of CBS News, was a dauntless protector of the First Amendment rights of broadcasters.

"Suppose," Salant told me, "the English governor had told Tom Paine that he could go ahead and publish all he liked -- but only if at the back of the pamphlets, he also printed the Royal Governor's views. That command, far from being an implementation of free speech, would have been just the opposite."

On Sept. 21, Republican National Committee chairman Jim Nicholson asked Bill Bradley the following question: "If the NAACP ran an ad promoting racial equality, would Bradley's bureaucrats impose 'a 100 percent tax' on the NAACP to pay for equal time ads by the Ku Klux Klan?"

It would be instructive to find out how deeply each presidential candidate has thought about the dangers to the First Amendment from those who, with the best of intentions, undermine it.

Along the same lines, it's good to see that bi-partisan abortion called McCain-Feingold finally kicked in the knees as of late.

If Congress was going to do anything concerning radio stations, the least they could do is repeal the lack of media ownership regulations within the Telecommunications Act of 1996. Having a few media titans controlling radio programming in most larger towns and cities has made the FM band practically unlistenable thanks to a narrow focus on programming, large amounts of commercials, and ridiculous compression rates in the audio.