That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...
--Thomas Jefferson

Tuesday, March 16, 2010

The Needless Fairness Doctrine

"I think," said ex-President Clinton, "we need to have either more balance in [radio] programs or some opportunity for people to offer counter-veiling opinions." Until 1987, the FCC agreed with him: they required "that public issues be presented by broadcasters and that each side of those issues be given fair coverage." For example, when Red Lion Broadcasting opposed Mr. Cook for reelection, the FCC told them to give Mr. Cook equal time to respond. Red Lion sued, and the Supreme Court upheld this "Fairness Doctrine" as constitutional.

In a famous (or perhaps infamous) essay, Prof. Jerome A. Barron argued that newspapers should also be under this Fairness Doctrine. For "expression already uttered... first amendment case law furnishes considerable help. But what of those whose ideas are too unacceptable to secure access to the media?" The "marketplace of ideas," Barron says, is being censored - not by the government but by a few corporations in control of the few surviving newspapers, seeking their own profit at the expense of "uninhibited, robust, and wide-open" debate. Trying to reach economies of scale without offending customers, they represent only the most common viewpoints in the most restrained terms without letting anyone else speak or even respond when the newspaper criticizes them. The government must act, Barron concludes, to ensure a press truly free to every citizen.

However, Barron is wrong: the Fairness Doctrine is not necessary for a free press. When the First Amendment says, "Congress shall make no law... abridging the freedom of speech or of the press," it implies that freedom of the press will exist if Congress simply does nothing - otherwise, the Founders (or the framers of the Fourteenth Amendment which applied it to the states) would have said, "Congress must make all laws necessary and proper to ensure the press is free to everyone." To the contrary, throughout the 1790's, newspapers printed quite partisan attacks without leaving any room for response.

Barron replies that the current situation is different: "Many American cities have become one newspaper towns," leaving no other outlet. Costs prohibit people from setting up other newspapers. However, this was actually truer in the Founding era than it is today. Few of the minuscule newspapers back then turned a profit, and it's actually more easy now to photocopy something at Kinko's than it was then to buy a printing press. Things have gotten even easier since Barron wrote his article: the Internet has been invented. When the Ron Paul campaign thought the mainstream media was ignoring them, they could just put up banners saying, "Google Ron Paul"! I recently started this blog, giving myself a worldwide platform for free. If Barron is concerned about people finding these alternate sources, he need only look at Google or at the "comments" section now found even in the New York Times, which allows people to link to rebuttles elsewhere. The Internet's near-nil costs allow people to cater to the smallest nitch audiences; any remaining problems are merely due to the difficulty of winning people's attention. Therefore, since the Web affords an adequate forum for reply, the Fairness Doctrine is needless.

Fortunately, the Supreme Court says that the Constitution forbids extending the "Fairness Doctrine" beyond broadcast media. "Half the people might publish and the other half read," the RED LION court said. But "no one has a First Amendment right to... monopolize a radio frequency." "The problem of interference is a massive reality. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast... Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them." When the government grants someone this privilege, the Court said, it can impose conditions - such as the Fairness Doctrine. But, the Fairness Doctrine "rests upon the unique physical limitations of the broadcast medium." Since cable television is not limited to a finite number of frequencies, the Court refused to impose the Fairness Doctrine on it. Whatever Barron may say about market limitations, there are no scientific limitations on the number of newspapers. Therefore, when the Supreme Court struck down the "right of reply" for newspapers, it did not even think it necessary to explain how they were clearly different from broadcast television.

Free speech is still uninhibited, robust, and wide-open. Indeed, the Internet has quite possibly made it freer than ever. We don't need a government to mandate a "right of reply" and spawn a chilling bureaucracy to determine what's a legitimate reply or when a reply is demanded. As long as the American people demand free speech, then speech will be free. If free speech ever perishes from our free country, it will be due to the people.

1 comment:

  1. I agree with your assertion that the government should not impose the fairness doctrine onto newspapers and television, as the internet has allowed for a variety of conflicting opinions to be argued and heard. However, I think you may underestimate the gravity of having a few people control a large portion of the media outside of the internet.

    Television and newspapers still have huge market shares and an enormous amount of power, and for some people, television or newspapers are the only source of media they use to gather information. And while I would say that it is the responsibility of the individual to seek out other venues for news and different opinions on topics, the reality is that there are still people with limited access to the internet and people who have set routines that will not seek these other sources. This is potentially harmful for households without internet access, or to people who are do not really know how to use the internet as a media source.

    Because of this the media conglomerates can act as monopolies and can push particular points of views. This does not lead to an informed citizenry, which is what the first amendment is about. The internet is still not enough of a counter-balance, and many people may still only hear one side, which is not healthy for a democracy. Perhaps an alternative to the fairness doctrine would be to break up some of the large and powerful media conglomerates under anti-trust laws.