Beyond the Fairness Doctrine

Barack Obama says he wouldn't reintroduce the Federal Communications Commission's most notorious speech-squashing regulation. But there are more mundane reasons to fear the next FCC.

First the good news: The fairness doctrine is still dead, and it probably will stay dead even if Barack Obama becomes president. The doctrine, a rule that gave the government the power to punish broadcasters for being insufficiently balanced, was killed off 21 years ago. It isn't likely to return, despite persistent rumors that the regulation's rotting corpse will crawl from its coffin and disembowel Rush Limbaugh.

But you can't blame talk radio fans for worrying. When the Federal Communications Commission enforced the doctrine, from 1949 to 1987, it was a convenient club for politicians and interest groups itching to silence their critics. During the last couple of years, House Speaker Nancy Pelosi and other prominent Democrats have publicly pined for its return, a change that would effectively require any outlet that transmits Sean Hannity's show to either devote a chunk of its schedule to rebutting him or, more likely, dial back its political programs altogether and air a jock or a psychiatrist instead. Pelosi's party hasn't come close to restoring the rule, but they've handed a powerful political weapon to the opposition: Every time the Dems raise the subject, right-wing radio shows and blogs broadcast the news to an angry conservative base. In a year when rank-and-file Republicans are uncomfortable with their party's presidential nominee, it's a potent way to persuade them to hold their noses and vote for John McCain.

And so the conservative weekly Human Events warns that "liberals are chafing at the bit, waiting for regime change in Washington to give them the ability to reinstate the ‘fairness doctrine.' " Michael Medved, the movie critic and AM talker, announces in towering capital letters that "THOSE RADIO HOSTS WHO CLAIM THAT MCCAIN AND HIS DEMOCRATIC RIVALS ARE ‘INTERCHANGEABLE' SHOULD NOT IGNORE THIS CRUCIAL ISSUE." And Cliff Kincaid of Accuracy in Media—an organization that never shied from wielding the fairness doctrine against the left—frets that "if Obama captures the White House and gets the opportunity to appoint the FCC chairman, liberals would then have a 3-2 majority capable of bringing back the Fairness Doctrine through administrative action, without the need for congressional approval."

It won't happen, says Obama. On June 25, in a savvy political move, his press secretary sent an email to the industry journal Broadcasting & Cable. Deftly deflating the scare, the secretary stated flatly that "Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters."

Now the bad news. There's a host of other broadcast regulations that Obama has not foresworn. In the worst-case scenario, they suggest a world where the FCC creates intrusive new rules by fiat, meddles more with the content of stations' programs, and uses the pending extensions of broadband access as an opportunity to put its paws on the Internet. At a time when cultural production has been exploding, fueled by increasingly diverse and participatory new media, we would be stepping back toward the days when the broadcast media were a centralized and cozy public-private partnership.

Such threats might not rile up the red-state base the way the fairness doctrine does, in part because it's far from clear that the GOP would be any better. Under its current chairman, Republican Kevin Martin, the FCC has been no friend to either free enterprise or free speech. It has sharply increased federal restrictions on the media, with a sanctimonious crusade against "indecent" broadcasting; new regulations for satellite radio, wireless phones, and other communications industries; and an attempt to assert unprecedented powers over cable TV. "Martin is the most regulatory Republican FCC chairman in decades," says Adam Thierer, director of the anti-censorship Center for Digital Media Freedom. "He wants to control speech and will use whatever tools he has to get there."

An Obama FCC might mean still more steps toward reregulation. Coming on the heels of Martin's commission, it could also mean a relative reprieve—even, in some areas, a move away from command and control. A lot depends on events, and a lot depends on which interest groups acquire the most influence in his administration. Here are four factions to keep an eye on.

The Players

The idealists. There is a loose coalition on the left that calls itself the media reform movement. Its members are rarely the most powerful people in the room, but they inevitably shout the loudest. They gather in public-interest groups—Free Press, Public Knowledge, the Media Access Project—that cast themselves as populists fighting the major media corporations, which they accuse of centralizing power and shutting out dissident perspectives. In their more libertarian moments, they'll call for opening up more spectrum, loosening copyright controls, and rolling back culturally conservative restrictions on speech. Prominent reformers will also, alas, support a host of new economic regulations and speech controls.

Some members of the movement, such as the communications historian Robert McChesney, prefer to stress the reregulation. In his 2008 book The Political Economy of Media, McChesney goes so far as to describe "private ownership of media" as one of "the primary internal impediments to a viable free press." Other reformers, such as the legal scholars Lawrence Lessig and Tim Wu, aren't so statist; even when they call for new controls, they say they prefer broad and simple rules aimed at encouraging innovation, not diktats meant to force a specific outcome. "We need to radically carve back on the scope and reach of what the FCC is doing," Lessig says, "not to the world of no regulation, but to the world of regulation for the objective of facilitating proper competition, not protecting against competition."

Lessig has met with Obama to discuss technology policy, and while he has his disagreements with the candidate—he didn't appreciate Obama's vote this year to give telecom companies retroactive immunity for illegally assisting government spies—he strongly supports the Democratic ticket. From the other end of the coalition, McChesney told the National Conference for Media Reform in June: "Our job doesn't end if he's elected. It begins. But at least we're in play."

Incidentally, Trinity Church, the controversial house of worship that Obama attended until May, is affiliated with the United Church of Christ, a body that has been heavily involved with the media reform movement. During the last few years, the church has urged the FCC to limit product placement on television, to refuse to renew the licenses of stations that don't offer enough children's programming, to let more low-power radio stations on the air, to block media consolidation, and—yes—to restore the fairness doctrine.

Minority broadcasters
. Obama has the overwhelming support of the black community. Generally speaking, that includes blacks in the broadcasting business. The Democratic coalition has a history of calling for more minority-owned enterprises, and that's not likely to change during an Obama presidency.

There's some overlap between this group's goals and those of the media reform movement. Public-interest lobbies frequently proclaim the need for more racial diversity in both ownership and programming, and organizations such as the National Association of Black Owned Broadcasters (known by the delightful acronym NABOB) often join the reformers in condemning concentrated ownership of the media. But the two policy programs are not an exact match. When the small businesses that make up much of the minority broadcasting community look at some of the regulations endorsed by the reformers, they see red tape and bureaucratic discrimination. David Honig, a veteran of Jesse Jackson's Rainbow Coalition who now runs the Minority Media and Telecommunications Council, has fiercely criticized the FCC for the ways "regulation acts as a filtering device to guarantee entry by favored groups and to discourage entry by disfavored groups."

Naturally, the tune changes when the regulations favor minority ownership. Both Honig's group and NABOB think the commission should prefer nonwhite applicants when awarding broadcast licenses.

Tech support. Barack Obama may consult with activists eager to bring the media and telecom companies to heel, but he receives plenty of industry support as well. Some of those companies donate money to both candidates, but the lion's share of the loot is going to the Democrat. As of July, according to the Center for Responsive Politics, Obama had received $12,351,351 from the communications and electronics sector, as opposed to just $3,055,535 for McCain. The computer and Internet industries favored Obama over McCain, $3,729,991 to $920,554; TV, movie, and music companies preferred Obama as well, $4,701,382 to $815,451. (Telephone utilities, on the other hand, gave $379,835 to the Republican and $249,072 to the Democrat.)

This pattern has alarmed Obama's supporters in the media reform camp. Writing in May, McChesney and The Nation's John Nichols warned that "industry money is going to Obama in anticipation of his victory." At the National Conference for Media Reform, McChesney added that the reformers would need to "apply pressure" from the other direction.

It's worth noting, though, that the reformers and industry aren't always at odds. The most prominent example is net neutrality—the idea, endorsed by Obama, that Internet providers should not discriminate in price or priority between different uses of the Net. Like the reformers, but for its own self-interested reasons, Google strongly supports legal enforcement of this principle. As of July, Google accounted for $373,212 in donations to the Obama campaign.

The bureaucracy. And then there's the commission itself, which has its own momentum. "The FCC is, structurally, an independent agency," points out Kevin Werbach, an assistant professor of legal studies at the Wharton School, a prominent champion of spectrum reform, and an Obama supporter. "The president selects the chairman and nominates the commissioners, but the president does not tell the FCC it must rule this way or that way on a particular proceeding."

Both of the current Democratic commissioners, Jonathan Adelstein and Michael Copps, have supported increases in regulatory controls, with Copps in particular leading the charge against both vulgar broadcasting and media mergers. Neither is likely to leave next year. For some observers, that alone is enough to indicate what to expect from a new administration. It's "not hard to envision an Obama FCC—just read the speeches and opinions of Adelstein and Copps, and you're there," says Ben Compaine, co-editor of the Journal of Media Economics. (Both Adelstein and Copps declined to be interviewed for this article.)

With those frequently conflicting forces in the background, here's how the most important issues at the FCC might play out under Obama.

'Indecent' Speech

In the last seven years, the commission has ramped up its war on "indecency," levying unprecedentedly high fines and attempting to extend its influence into cable and satellite broadcasting. (Under current law, its rules against swearing and smut do not apply to such subscription services.) This shift of policy actually preceded 2004's Super Bowl debut of Janet Jackson's right breast, but the crackdown has only intensified since then, with steeper fines and sillier targets.

"Give credit where it's due," says Thierer. "Obama is pretty good on this issue." The Democrat's official technology plan condemns violent, sexual, and bigoted speech and images in the media, but it also states directly that the candidate "values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. Instead, an Obama administration will give parents the tools and information they need to control what their children see on television and the Internet." That's a far cry from the views of Kevin Martin, who once said, "You can always turn the television off and, of course, block the channels you don't want. But why should you have to?"

That said, the bureaucratic momentum on this issue favors the current crusade. In 2004, People asked the man who put Martin in charge of the FCC what to do about "foul language and sexual titillation" on television. Bush's reply: "They put the on/off button on TVs for a reason." It was a wise answer, just like Obama's comments about the First Amendment. And it didn't prevent the crackdown.

"I don't follow Obama as much as I follow the FCC," says Matthew Lasar, a left-leaning historian at the University of California at Santa Cruz and a frequent contributor to the tech site Ars Technica. "Think in terms of what he's going to inherit." The drive for higher indecency penalties isn't coming only from the Republican chairman. On the Democratic side, Adelstein and Copps are enthusiastic censors as well, with Copps in particular urging the commission to come down harder on vulgar expression. In 2004, when the agency fined Clear Channel $755,000 for a series of crass radio skits and some related incidents of improper recordkeeping, Copps objected that the company's stations should have paid even more—or, better still, lost their licenses to broadcast altogether: "I am discouraged," he wrote, "that my colleagues would not join me in taking a firm stand against indecency on the airwaves."

"Michael Copps and Jonathan Adelstein are pretty invested in the indecency process, because it brings various parties together around the issue of believing in regulation," says Lasar. "They see this as a way to draw people into the pro-regulator camp." Reversing that trend would mean facing down an entrenched independent bureaucracy. "I'd be surprised if Obama can make much of a dent in that, assuming he really wants to," Lasar concludes.

Congress, too, seems attached to regulating indecent language. The judiciary, however, may be leaning in another direction. In July the U.S. Court of Appeals for the 3rd Circuit ruled that the FCC "acted arbitrarily and capriciously" when it fined CBS $50,000 for Janet Jackson's nipple slip. In a similar case, involving the government's right to punish stations for airing unplanned, fleeting four-letter words, the 2nd Circuit rebuffed the commission on the same grounds, adding that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster." The government has appealed that decision, and the U.S. Supreme Court will hear the case soon.

Local Speech

During the last few decades, radio stations have relied increasingly on programs produced elsewhere. With voicetracking technology, a DJ in Dallas can record hours of shows for stations around the country in less than 30 minutes, complete with regional references to be inserted into different outlets' transmissions. Meanwhile, local musicians and community activists often have trouble getting any airtime at all.

It's technologically feasible to let the locals start small stations of their own, but regulators have made that a long, cumbersome, and expensive process. The entry barriers range from costly technical requirements to outdated channel separation rules that tighten the number of available licenses.

The obvious solution is to reduce those barriers. But you'll also hear calls to compel existing stations to make room for more locals, or to require broadcasters to air other kinds of "public interest" programming. Think of it as the flip side of the indecency debate: This is the speech that everyone professes to like, at least when it takes the form of broad buzzwords such as diversity and localism and not actual programming that might offend people.

In January, for example, the FCC released a report on broadcast localism, which among other recommendations suggested that each station should "convene a permanent advisory board made up of officials and other leaders" to advise it on "community needs and issues." The report also declared that the commission should give aggrieved listeners "more straightforward guidance" on "how individuals can directly participate in the license renewal process."

It sounds mild—but then again, so did the fairness doctrine, which merely asserted that stations should "afford reasonable opportunity for discussion of conflicting views on matters of public importance." When "individuals" decide to "participate" at license renewal time, that's when would-be censors crawl out of the woodwork. The United Church of Christ, for example, has distributed a manual to activists with advice on how to target a station for termination. It includes a sample petition, filed by Rocky Mountain Media Watch in 1998, urging the government to "protect" the public by refusing to relicense a Denver TV outlet, on the grounds that its newscasts "are severely unbalanced, with excessive coverage of violent topics and trivial events, and, consequently, inadequate news coverage of a wide range of stories and vital social issues. In addition, newscasts present stereotypical and unfavorable depictions of women and minorities."

Imagine having to contend with such petitions, from both the left and the right, every time you have to ask the FCC for permission to keep broadcasting. Even if you get to keep your license, it'll mean spending more time and money dealing with the hassle. The natural impulse will be to throw some bones to your critics, especially the ones who have managed to land spots on your community advisory board.

For some Republicans, the suggested regulations are a way to bring the fairness doctrine back into the conversation. In a June letter to Kevin Martin, House Minority Leader John Boehner charged the FCC with a "stealth enactment of the Fairness Doctrine," arguing that "the recreation of pre-1980s advisory boards will place broadcast media squarely on a path toward rationed speech." A group called Save Christian Radio worries that since the community advisory boards must be "broadly representative of an area's population," the new rules could mean that "Christian broadcast stations could be forced to take programming advice from people whose values are at odds with the Gospel."

Maybe yes, maybe no: The FCC is still receiving citizen comments on its initial proposals—most of them running against the idea—so it's hard to say how onerous the final rules will be, if indeed they're passed at all. But if you're worried about an Obama administration, this is where there's the most potential for mischief. The candidate has broadly endorsed rules requiring more local programming. He also supports a proposal the Martin commission has rejected: shortening the time between broadcast license renewals from eight years to two.

Much of the media reform movement has endorsed these ideas. The minority broadcasting community is less enthusiastic. In the spring, the Minority Media and Telecommunications Council and the Independent Spanish Broadcasters Association submitted comments to the commission criticizing the localism report, arguing that "many of the proposals...would have a disproportionate negative impact on minority broadcasters because of their relatively small size and limited access to capital." In particular, "very few small, local broadcast owners can afford to formally administer the permanent advisory boards."

Opening Up Spectrum

A better way to promote localism is to allow more local stations on the air. At this point the technical cost of starting a station is so low, and the potential competition for advertising is so cutthroat, that an open marketplace might actually favor small, volunteer-run, noncommercial outlets created out of a passion for music or to express a particular point of view. For a rough comparison, look at the Internet, where passion-driven websites proliferate even when e-commerce hits a downturn.

Ushering in those stations requires little more than loosening the federal government's grip. Simply allowing FM broadcasters to use the space allocated to TV channel 6, for example, could make room for thousands of new stations around the United States. But that option, like many others, has been shut off, largely because the National Association of Broadcasters is good at persuading Washington to protect the incumbent industry from competition.

Unsurprisingly, the lobbyists who push hardest for these barriers are often the first to protest the public-service regulations beloved by the media reform movement. Meanwhile, the media reformers can suddenly sound like libertarians when the topic turns to letting community groups start their own stations. Many of them, in fact, support even more sweeping changes to the FCC's controls on the electromagnetic spectrum. In his 2001 book The Future of Ideas, Lessig wrote that "the only thing that government-controlled spectrum has produced is an easy opportunity for the old to protect themselves against the new. Innovation moves too slowly when it must constantly ask permission from politically controlled agencies." The real debate, he argued, is between those who think spectrum should be treated as private property and those who believe new technologies allow the ether to function as an open commons.

Both Obama and McCain would probably be pretty good on the specific issue of allowing more community outlets. William Kennard, the Clinton-era FCC chair who championed licensed low-power radio, is an Obama adviser. McCain initially opposed the idea—in 1999 he suggested that anyone who wants to start a low-watt station should get "a Web page or a leased access cable channel" instead—but he has reversed himself since then. Last year he co-sponsored the Local Community Radio Act, which would allow more stations on the air.

It's harder to imagine either candidate pushing for sweeping spectrum reform. But there is one policy debate that could propel that issue onto the table: the question of "white spaces," unused spots in the spectrum between the frequencies used by TV broadcasters. Many in the media reform movement have been pushing the FCC to open those areas to unlicensed devices delivering wireless Internet access. Microsoft unveiled a prototype last year that it said could use those spaces without interfering with television signals. (So far the commission doesn't agree.) A number of free market economists, meanwhile, have called for the FCC to auction off the spaces and let different potential users bargain for the right to use them. Still other policy watchers have called for a mix of the two approaches. What all these ideas have in common is that they would allow much more flexible uses of spectrum, pulling the FCC back from its role as the zoning board of the airwaves and setting a precedent for larger reforms.

Even if Obama's appointees let that happen, industry lobbies could still stop the idea. "I would expect the National Association of Broadcasters would do what they did with low-power FM," says Lasar. "They'd take a fear-mongering campaign to Congress and make some sort of bid for a law to restrict what the FCC can do." Legislators of both parties, he argues, are "pretty susceptible to the National Association of Broadcasters' position, which is that unlicensed broadband applications will create a gigantic crisis for the entire broadcasting industry, will interfere with TV, will interfere with medical devices, will ruin the world. Which they have all but said in FCC proceedings."

Back-Door Regulation

In a June debate before the conservative Federalist Society, former FCC chief Reed Hundt, serving as a surrogate for Obama, said the candidate "doesn't think there should be any more media consolidation until new policies are developed to promote diversity and localism." The candidate himself co-sponsored a bill last year to prevent the FCC from loosening the rules restraining newspapers from owning broadcast stations and vice versa.

Meanwhile, out in the marketplace, the media have been going through a wave of deconsolidation, most of it market-driven. CBS recently announced that it will sell off 50 radio stations. Clear Channel, the biggest radio chain, put more than 400 stations up for sale in 2006. Time Warner has been spinning off properties for years. It's weird to work up a sweat about media monopolies at a time when the media themselves are sweating over the new forms of competition they're facing—weirder, at least, than it was a decade ago, when the headlines were filled with mergers and AOL Time Warner stood like a colossus atop the horizon.

The persistant concern with consolidation would be harmless, even productive, if it manifested itself as a sustained effort to let more people onto the airwaves. But that's not where it seems to be heading now. An FCC on the prowl against "media monopolies" is an FCC that's more willing to interfere with future mergers. Not to block mergers, but to extract concessions.

Last year America's two satellite radio companies, XM and Sirius, asked the government for permission to merge. Thirteen months later, the Federal Trade Commission approved the deal. Four months after that, the FCC agreed that the marriage should go forward, but it also attached some conditions to the ketubah. Among other commitments, the combined company would have to cap its prices for three years, extend its service to Puerto Rico, and offer "à la carte" programming packages in which customers can unbundle their subscriptions and pay only for particular channels.

In other words, the FCC imposed new controls on a single business, and it did so without the rulemaking procedures that are ordinarily required before regulations can be adopted. In the process, it may have found a way around institutional impediments to its power. The "à la carte" proposal, for example, has been enthusiastically supported by Chairman Martin (and by John McCain), who thinks it would be a good way to help viewers avoid indecent programming. It is less popular among the people who run niche channels—including, by and large, the minority broadcasting community—because it will cut into their potential audiences. So far Martin hasn't been able to make the idea law. But if he can impose it on enough cable companies through the back door, a formal change to the federal code might not be necessary.

This isn't a new threat. The Bell Atlantic/NYNEX merger of 1997 started the ball rolling, with a series of conditions the companies embraced "voluntarily" before the FCC approved the combination. But the agency has grown more brazen since then, as commissioners from both parties learned to love the process. Given that bipartisan backing, neither Obama nor McCain is likely to restrain them. The industry hasn't protested much either. When the government imposes company-specific laws, you can divide most businesses into two categories: those that have managed to survive the process and those that aren't affected by the conditions.

The good news is that the commission refrained from restricting what XM/Sirius could actually put on the air. (Clear Channel, for example, had asked the FCC to bar the satellite network from offering any local content, thus insulating its terrestrial stations from space-based competition.) But as these back-door regulations grow more common, it's easy to imagine a future commission insisting that, say, a media conglomerate submit its cable channels to the same indecency rules imposed on over-the-air stations.

Convergence

It used to be easy to divide the broadcast issues at the FCC from the other areas it regulated. Not in the Internet era, when you might find yourself receiving TV shows over your phone lines. Today, some of the most intrusive restrictions on broadcasting aren't even enforced by the FCC. It's the Federal Election Commission that restricts the content of paid political speech during a campaign, and it's the Copyright Office that imposes onerous fees on Web radio stations, threatening to drive the entire industry off the Net.

Within the FCC, the issues surrounding broadband deployment could become a foothold for controls on online expression. Consider the adventures of M2Z, a California-based company that wants to build an ad-supported national broadband network in which consumers can pay extra for speedier connections. In 2007 it asked the FCC to grant it the spectrum for free. When the commission refused, the company sued to overturn the decision. Then Kevin Martin proposed another sort of back-door regulation: The government would auction off the spectrum, but it would attach conditions on how those airwaves could be used—conditions that happen to dovetail with M2Z's original business plan.

You needn't be fond of the incumbent wireless industry—hardly free market heroes—to appreciate how inappropriate it is for the government to tilt the scales in a single firm's favor. But it wasn't just wireless companies and supporters of equal treatment who protested Martin's plan. Civil libertarians were aghast, because Martin's conditions included a requirement that the auction winner filter pornography from its free tier of services.

At press time it's unclear whether Martin's slanted auction will ever take place. But there's a broader issue at stake. When the commission starts granting favors to companies in exchange for regulatory concessions, it's just a matter of time before those regulations include restrictions on speech.

That's the threat to fret about under the next FCC, be it Democratic or Republican. It's hard to imagine President Obama trying to bring back the fairness doctrine: Even if he's prone to breaking his campaign promises, it's just dumb to invite a fight with a big, noisy enemy that's able to instantly mobilize an army of angry listeners. The real danger is more subtle and more mundane. It's a bipartisan bureaucracy slowly, steadily increasing its power.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America (NYU Press).

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    I don't buy the reasoning that Obama won't try to resurrect the fairness doctrine just because he said he won't.

  • Turtles||

    Now imagine a year from now, under the BO regime, the required counterpoint article: "Why the FCC is a good and benevolent agency"

  • ||

    What a weird little obsession - the terror at the possibility that stations might have to run counterpoint commentaries.

    Hey, and how about those mandatory PSAs, huh? To the barricades!

  • ||

    Joe, I've read your comments many times -- you're too smart to really believe that is what the result of the fairness doctrine was or would be in the future.

  • ||

    BladeDoc-

    Joe knows.

  • Head||

    What a wierd little obsession liberals have that the government would use warrentless wiretapping to spy on American citizens instead of for catching terrorists...

  • ||

    Come on joe, you yourself have some kind of a saying about people playing dumb.

  • ||

    Head-

    You mean those same liberals who voted for enhanced executive branch espionage?

  • ||

    F-Fabian

    C-Communication

    C-Control

  • ||

    Maybe I'm missing something, Bladedoc, but we had the Fairness Doctrine for decades, didn't we?

    And the consequences were those drab "And now, a counterpoint" editorial.

    No?

    Don't get me wrong, I can see the principled argument here. It's just the volume of ink spilled on this issue seems disproportionate.

  • a name before submitting the f||

    Thanks for not choosing a picture of a few seconds before that one.

  • BakedPenguin||

    And the consequences were those drab

    The consequences were often unseen. Namely, all the political speech that went unsaid because dealing with potential "counterpoints" was too much of a hassle.

  • ||

    Counterpoint? How does that work unless you think there are only two sides with views worthy of airing? This whole concept turns free speech on its ear and is worth making a big deal about.

  • BakedPenguin||

    Ugh. English is my first language, I swear.

  • ||

    So your pragmatic concern, BakedPenguin, - the one that raises this from a matter of principle to something really important, something that might even be worth changing your presidential vote over - is that in the age of the internet and cable television, people won't have access to political commentary?

    I always hear the opposite argument on threads about media consolidation, and it's pretty good argument.

  • Jesse Walker||

    Joe: The consequences included overt attempts by elected officials to use the doctrine to harass their critics. I wrote about some of the ugly history here.

    Bilby: The argument isn't just that he says he won't do it, but that he's politically savvy enough to understand the dangers of doing it. But I could be wrong. Give the Dems a veto-proof majority and all sorts of things might suddenly become thinkable.

    For the most part, the point of the article isn't to predict the future so much as to open up the hood, show the major mechanisms that will be at work in an Obama FCC, and give the readers the tools to judge for themselves how those mechanisms are interacting. That, and to remind readers that the Fairness Doctrine isn't the only important issue on the table.

  • dhex||

    And the consequences were those drab "And now, a counterpoint" editorial.

    it was a *bit* more complicated than that.

    now i realize this is some kind of zombie stalking horse (it hungers for the flesh of living wheat) as part of the last ditch efforts of republicans to cast the tall shadow of socialist barackian dhimmitude upon a fearful masses or whatever the living fuck they think they're doing at the moment and whatnot, but that doesn't make it less odious. it's odiousness doesn't really make it very plausible, either, so there's that to be thankful for.

  • BakedPenguin||

    No, joe. I don't think people will lose all access to political commentary. Let me restate, if I was unclear - of the media outlets whom the doctrine applies to, some will forgo political speech, especially any speech that may be considered controversial - because it's easier than dealing with the requirements of the doctrine.

    I have no idea where you got the "changing your presidential vote" idea from. I was addressing the consequences of a policy.

  • Head||

    Joe is willing to make all sorts of "compromises" of his "liberty" as long as the consequences are predictable and benefit his agenda. That's what liberal means, anyway - liberty for the favored intellectuals, mute acquiescence for everyone else.

  • ||

    Jesse,

    Do you have anything to say about this controversy over the new system of radio ratings that would replace the venerable diary system? I have heard that the new ratings system results in lower ratings for minority broadcasters, and that Obama and Andrew Cuomo and other lefty lawyers have been working to use lawsuits to prevent the implementation of the new system.

  • ||

    Those are some pretty ugly anecdotes, Jesse.

  • ||

    Penguin,

    So your concern isn't with the public and the availability of ideas and the richness of political discourse, but with the station management. OK.

    I "got" the thing about changing one's presidential vote from my first comment - which was, once again, a question about why this issue is being treated as so important.

    Head, if you actually believed any of the yammering you engage about the biased liberal media, you wouldn't be arguing that giving dissenting voices airtime represents an effort to advance my political agenda. But, of course, you don't.

  • ||

    the terror at the possibility that stations might have to run counterpoint commentaries.

    So is there going to be a libertarian counterpoint? A constitutionalists counterpoint? An evangelical counterpoint? An anarchist counterpoint? A spaghetti Monster Counterpoint? The Whig Counterpoint? The Communist Counterpoint? Or are we stuck in the idiotic simplistic world where only Democrats and Republican's have opinions?

    What the the fairness doctrine really means is ONLY republicans and democrats batting it out. But since there have long since any meaningful difference between the parties, the mediocrity that this doctrine would leave us with not worth the price or reducing anyone's freedom.

  • Head||

    I was yammering about your biased liberal apologia - not the media. Dissenting voices are exactly what is stifled by the fairness doctrine - or do you actually believe that in a fairness doctrine world liberal media outlets (no, I'm not saying all media are liberal - just some) would be forced to include conservative views? If you do, you are surely doing a discredit to your normally evenhanded analysis.

  • Point-counterpoint||

    Conservative: We should lower taxes on individual income
    Liberal: We should raise taxes on individual income.

    Liberal: We should raise taxes on individual income.
    Communist: What is this "individual" income you speak of?

  • Libertarian Counterpoint||

    There should be no personal income tax.

  • Anarchist Counterpoint||

    All taxes are theft, but so is private property. Let's all smash toilets!

  • Evangelical Counterpoint||

    Gays are evil and should not be allowed to marry.

  • The Whig Counterpoint||

    President Jackson thinks he can ride roughshod over the Constitution!

  • The Fascist Counterpoint||

    Everything within the State, nothing outside the State.

  • Populist Counterpoint||

    They tuk ur' jebs!

  • Jesse Walker||

    mitch: Only that it's yet another indication that the different ways of measuring audiences are skewed in different built-in ways, a topic I've discussed in the past in connection with the use of different yardsticks by the Corporation for Public Broadcasting. I haven't been paying a lot of attention to the lawsuits that are now being filed; I should probably probe that more closely.

  • BakedPenguin||

    Right, joe. Station management. Those greedy bastards in Jesse's link all got what they deserved. How dare they oppose such a well meaning doctrine, especially when there are no consequences.

    Had I addressed your comment about changing one's presidential vote due to this issue, I could see why you'd bring it up. I didn't. Given that neither candidate has committed to this issue, I think changing your vote on this would be a silly idea. Neither candidate is very good on 1st amendment issues.

  • BakedPenguin||

    Crap. "Neither major party candidate..."

  • Jordan||

    Head, if you actually believed any of the yammering you engage about the biased liberal media, you wouldn't be arguing that giving dissenting voices airtime represents an effort to advance my political agenda. But, of course, you don't.



    One can criticize the media for being one-sided without advocating for government intervention to change it.

  • Seward||

    Why would the "fairness doctrine" be needed in the first place? Is someone actually suggesting that the Democrats and Republicans don't get enough airtime to mention their talking points?

  • ||

    troy,

    I think it would likely be exactly the opposite of this: What the the fairness doctrine really means is ONLY republicans and democrats batting it out. Third-party voices would be sought out to provide the counterpoint by those stations that are pushing the message of one of the two parties, in order to avoid giving the other side air time, and the net result would be an expansion of their visibility.

    I'm thinking of the way Fox News brings on libertarians, not liberal Democrats, to argue the anti-PATRIOT side, or how MSNBC brings on Pat Buchanan to argue opposite a liberal on a foreign policy issue.

  • Invisible Finger||

    So your concern isn't with the public and the availability of ideas and the richness of political discourse, but with the station management. OK.

    You have to have your head buried in the sand to claim a lack of availability of ideas and political discourse.

  • ||

    The only argument in favor

  • ||

    Oops, let's try again:

    The only argument in favor of the Fairness Doctrine was the limited channels argument. Since that's long gone, the sole justification for allowing rebuttal time is also long gone. And that justification was bogus even when it wasn't, if you catch my meaning.

    It's a sad commentary on the state of free speech discourse when people are okay with laws that may chill political speech.

  • ||

    Head,

    or do you actually believe that in a fairness doctrine world liberal media outlets (no, I'm not saying all media are liberal - just some) would be forced to include conservative views?

    That is how it worked last time, but oh, right, I forgot: everyone conspires for the liberals, including the FCC, so they'd get a special break. You have no idea how far up this thing goes, man!

    Easy there, BakedPenguin. I'm just making sure I understood your point.

    And you addressed me after I asked why this was being treated as a major issue, so perhaps you can stretch yourself enough to perceive why I might think you were discussing what made it a major issue.

    Jordan,

    One can criticize the media for being one-sided without advocating for government intervention to change it. But that's not the argument I was responding to. Rather, I was responding to the assertion that favoring, or even non opposing enough, a proposal to require a diversity of viewpoints is an effort to advance a liberal agenda, and laughing particularly hard at the fact that said assertion is coming from someone who swears up and down about the liberal media. You see, I'm only willing to see the liberal media required to provide alternative viewpoints because I want to silence all non-liberal voices. Or something. I don't know, it probably made sense in Head's head before he typed it.

  • ||

    You have to have your head buried in the sand to claim a lack of availability of ideas and political discourse.

    I agree; in fact, I made that point before you did.

  • Seward||

    Pro Libertate,

    Shouldn't we also apply the "fairness doctrine" to religious programming as well? :)

    joe,

    From what I have come to understand of the subject in this conversation the "fairness doctrine" is at its base content regulation by the government. I can't think of any possible reason why content regulation is a good idea.

  • ||

    I think it would likely be exactly the opposite of this: What the the fairness doctrine really means is ONLY republicans and democrats batting it out. Third-party voices would be sought out to provide the counterpoint by those stations that are pushing the message of one of the two parties, in order to avoid giving the other side air time, and the net result would be an expansion of their visibility.

    I'm thinking of the way Fox News brings on libertarians, not liberal Democrats, to argue the anti-PATRIOT side, or how MSNBC brings on Pat Buchanan to argue opposite a liberal on a foreign policy issue.


    Your example is not a good one, as it does not involve legally being forced to give an opposing viewpoint. That is just an example of a station giving an opposing view of their choosing. If it becomes a requirement by legal force, the oppoing view will most often be represented by whoever has the most power to bring about that legal force. And I doubt it would be anyone without ties to the major political parties.

  • LarryA||

    Maybe I'm missing something, Bladedoc, but we had the Fairness Doctrine for decades, didn't we?

    And the consequences were those drab "And now, a counterpoint" editorial.


    Let's suppose the FCC requires every station to air all sides of any issue presented. First, the easy way to comply is to avoid presenting any issues. (As covered above.) But let's say that doesn't occur, that each station does air all sides.

    How many stations do you need? One.

    This is part of what happened to newspapers. The professional press decided they were going to be impartial. Instead of a city with five different papers, having five different political slants, you have five news papers with "no" political slant. If your five papers present identical AP news, four become redundant. That's when we really got hit by "media consolidation."

    What's the broadcast alternative? Open up the spectrum. If you don't like the political viewpoints available, start your own station and throw yours into the ring.

    BTW, why were the "counterpoint" editorials drab? Because a station forced to air an alternate viewpoint has no incentive to make that viewpoint appealing.

    OTOH an alternate viewpoint station, trying to attract financial support and listeners, has a huge incentive to make its programming as engaging as possible.

    The free market at work.

  • dhex||

    It's a sad commentary on the state of free speech discourse when people are okay with laws that may chill political speech.

    people are fuckholes about things sometimes because it's not about principles but sports.

    TEAM RED TEAM BLUE GO TEAM GO!

    woo! we're winning! woo!

  • ||

    Third-party voices would be sought out to provide the counterpoint by those stations that are pushing the message of one of the two parties, in order to avoid giving the other side air time, and the net result would be an expansion of their visibility.

    This didn't happen in the proceeding decades when we had the doctrine. Why should I believe that it would be any different in the future? A television station that gave a communist a few minutes would have lost his license immidiately.

  • Jesse Walker||

    The regulatory edict that eventually evolved into the Fairness Doctrine was directed at a station owned by the Socialist Party.

  • ||

    So, what if we send a manned mission to Mars? Will the stations covering the event have to give equal time to Mars landing hoaxers?

  • Neu Mejican||

    "Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters."

    I thought this might be an important point.
    Talk about much ado about nothing.

  • Neu Mejican||

    More to the point.

    Given that the abuse/expansion of power is mainly a hallmark of the Bush approach, why is there an inference that Obama will operate in the same way?

    The danger exists, but is there reasonable support for the notion that this increased regulation of content trend would continue with Obama?

    All vapor and innuendo it seems.

  • ||

    Here's my counterpoint.
    "Joe, you ignorant slut!"
    No-one else was going there ... *sheepish*

    Don't like it, not at all.
    A concept that should forever remain on the trash heap.


    Anarchist Counterpoint
    All taxes are theft, but so is private property. Let's all smash toilets!

    At this point i went full on LOL looking for a hammer.

  • ||

    NM,

    But the Congressional leadership does, apparently, want to reinstate the Fairness Doctrine. Would Obama oppose Congress on this issue? I rather doubt it.

  • Neu Mejican||

    Pro Libertate,

    I disagree.
    He has explicitly stated that he does not support the idea.

  • Neu Mejican||

    BTW,

    I have never heard a legislator discuss bringing this back.

    Never.

    Doesn't seem high on their agenda.

  • ||

    . . .and he's not going to appoint liberal justices. Let's just say that I don't think Obama is going to be the first presidential candidate to tell us the truth about what he's going to do in office.

  • ||

    I've actually heard Pelosi talking about reviving the Fairness Doctrine. On NPR, I believe.

  • ||

    There's a little bit about current Congressional support for reinflicting the Fairness Doctrine on us in the Fairness Doctrine wiki entry.

  • Seward||

    Neu mejican,

    The danger exists, but is there reasonable support for the notion that this increased regulation of content trend would continue with Obama?

    As Jesse makes rather clear in the article the issue may have as much or morde to do with the FCC than it does Obama.

    I have never heard a legislator discuss bringing this back.

    Read the article.

  • Invisible Finger||

    I agree; in fact, I made that point before you did.

    Only as I was typing mine :)

    And yet you support a regulation that provides value of less than zero.

  • ||

    Rather than arguing about whether the Fairness Doctrine will be merely a minor imposition on the First Amendment, or have a major chilling effect on free speech, let's ask the prior question:

    What justification is there for it at all.

    And, joe, the chilling effect of the fairness doctrine became perfectly apparent after it was lifted. This little thing called talk radio sprung out of the void, you know. Now, I realize that it is full of Speech Joe Doesn't Like, but that really doesn't signify in the whole marketplace of ideas thingy.

  • Neu Mejican||

    Seward,

    House Speaker Nancy Pelosi and other prominent Democrats have publicly pined for its return

    I read the article before commenting.

    I have not heard this pining.
    So I will stick with my assessment that it is low on their agenda.

    Pelosi: "did not want to forbid reintroduction of the Fairness Doctrine"

    Hardly sounds like a wave of support for the idea. The wiki entry corroborates my opinion that this is low on the agenda.

    morde to do with the FCC than it does Obama.

    Yeah, but Obama will the replacing many of the players that are pushing for content regulation with people that agree with him.

    He as made it explicit that he does not support content regulations.

  • ||

    He as made it explicit that he does not support content regulations.

    I give him some credit for that, yet his campaign has tolerated numerous activities aimed at silencing critics and opposition. It sounds like he's OK with free speech in principle, but isn't willing to get his hands dirty fighting for it.

  • ||

    I just wonder how much of this is going to be rendered moot as higher speed cell phone networks grow and as people adopt the new technology- I can get internet radio almost anywhere now with an iPhone. I'm curious how much claim the FCC has to be able to regulate speech and indecency over internet "radio"?

  • Seward||

    Neu Mejican,

    I have not heard this pining. So I will stick with my assessment that it is low on their agenda.

    I'm not quite sure why the fact that you haven't heard something has anything to do with whether it is high on their agenda or not.

    Yeah, but Obama will the replacing many of the players that are pushing for content regulation with people that agree with him.

    As we all know, once the "right people" are in charge all things will run perfectly.

    He as made it explicit that he does not support content regulations.

    Where exactly did he state that? If by this statement you mean he has sworn off trying to reinstate the "Fairness Doctrine," well that doesn't mean he has sworn off content regulation.

  • Seward||

    dead_elvis,

    Regulators never seem to figure out that technology and human behavior tend to severely undercut their regulatory schemes.

  • Neu Mejican||

    Seward,

    Where exactly did he state that?

    Because you haven't heard him state it means it is not true? ;^)

    I'm not quite sure why the fact that you haven't heard something has anything to do with whether it is high on their agenda or not.

    Since I pay attention, it seems that I would have heard of the items that are high on their agenda. It seems.

    Yeah, but Obama will the replacing many of the players that are pushing for content regulation with people that agree with him.

    As we all know, once the "right people" are in charge all things will run perfectly.


    Nice bumper sticker.
    The preferred policy of policy makers tends to have an impact on the policy implemented.

    It ain't about the people, it is about the policy.

  • Neu Mejican||

    Oh, and Seward,

    Regarding Obama and his position on regulation of content...

    Read the post.

    Sheesh.

  • Neu Mejican||


    Protect Our Children While Preserving the First Amendment: We live in the most information-abundant age in history and the people who develop the skills to utilize its benefits are the people who will succeed in the 21st century. Obama values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. An Obama administration will give parents the tools and information they need to control what their children see on television and the Internet in ways fully consistent with the First Amendment...



    http://www.barackobama.com/issues/technology/

  • ||

    Obama has said a lot of things. If you believe them all, I have a secure hedge fund to sell you. He will align with the Fairness Doctrine Illuminati in Congress before you can say El Rushbo.

  • Seward||

    Neu Mejican,

    Because you haven't heard him state it means it is not true? ;^)

    It might be true. Which is why I asked the question.

    Since I pay attention...

    Not enough to note some direct comments by members of the Democratic party on the issue.

    It ain't about the people, it is about the policy.

    But you wrote...

    Yeah, but Obama will the replacing many of the players that are pushing for content regulation with people that agree with him.

    So apparently it is about the people who have the right policies.

    Anyway, two things from the link above:

    Barack Obama strongly supports the principle of network neutrality to preserve the benefits of open competition on the Internet.

    Net neutrality is a terrible idea for multiple reasons. So there is one very important reason not to vote for Obama.

    As president, Obama will encourage diversity in the ownership of broadcast media, promote the development of new media outlets for expression of diverse viewpoints, and clarify the public interest obligations of broadcasters who occupy the nation's spectrum.

    This all rings of some form or another of content regulation. Why not simply get rid of the stupid ownership rules and let the market decide the issue, instead of trying to mandate some ownership, viewpoint, etc. outcome?

  • ||

    An Obama administration will give parents the tools and information they need to control what their children see on television and the Internet in ways fully consistent with the First Amendment

    This is either content-free hogwash, or the assumption of god-like powers. You make the call.

  • ||

    R C Dean,

    Have you opened your heart to Obama?

  • ||

    He will forgive you your sins.

  • Neu Mejican||

    Seward,

    Not enough to note some direct comments by members of the Democratic party on the issue.

    Indeed, I have not payed enough attention to catalog all the comments by the Democratic party leadership on all issues.

    RC Dean,
    You have a low bar for god-like powers.
    This would be no more of a burden than providing the number of calories in a cola.

    Always Sunny In Philadelphia: Tonight's episode contains violence, sex, necrophilia, cannibalism, drug use, and profanity.

    God like.

    Net neutrality is a terrible idea for multiple reasons. So there is one very important reason not to vote for Obama.

    Okay. At least in this case you would be voting against him for a real position rather than voting against him for a position you think he might secretly have.

    As for net neutrality... devil's in the details whether it is a good idea or not.

    This all rings of some form or another of content regulation.

    Encourage doesn't have to mean mandate.
    Encourage doesn't have to mean regulate.
    Encourage can mean encourage.

    Now, "obligations" might mean regulate.
    But the question is whether this is a regulation on content, or activity (a mushy area for sure).

    But I do pay enough attention to know that this issue is not high on their priority list.

    So apparently it is about the people who have the right policies.

    A difference without a distinction I suppose.
    Like I said before, it is a nice bumper sticker.





  • Neu Mejican||

    Wow,
    That was weird.

    Squirrels scrambled my comments.

  • Paul||

    it was a convenient club for politicians and interest groups itching to silence their critics.



    I wonder what more recent law might be used as such a club... something's coming to mind, but I can't quite get it in focus...

  • Loquat||

    This article was informed, insightful, comprehensive and well-written.
    Jesse Walker is the anti-Steve Chapman.

  • nfl jerseys||

    fywsrg

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