Broadcasters in Bondage

Free speech is a fundamental right? Not when it comes to TV and radio broadcasters, it isn't—and an odd coalition of liberals and conservatives want to keep it that way.

Phyllis Schlafly thinks the Fairness Doctrine, which requires broadcasters to devote a "reasonable amount of time to discussing controversial issues of public importance in their communities" and to do so in a balanced manner, is a good idea. Earlier this year, in a series of round-table discussions on the doctrine at the Federal Communications Commission (FCC), Schlafly, the nemesis of the equal rights amendment and all other liberal causes, advocated the continued use of big government "to serve as a small restraint on the monopoly power wielded by Big TV Media."

When it comes to avowed conservatives supporting federal regulations to curb perceived abuses of the broadcast media, Schlafly is not alone. The American Legal Foundation (ALF), a conservative public-interest law firm, and Accuracy in Media (AIM), an organization devoted to overseeing news coverage by broadcasters, both filed similar comments in recent FCC hearings on the Fairness Doctrine.

These groups, curiously, have found allies for this cause in a number of liberal organizations. The American Civil Liberties Union (ACLU), the United Church of Christ, the National Association for the Advancement of Colored People (NAACP), Media Access Project, Telecommunications Research & Action Center, and the Democratic National Committee, among others, all have filed comments with the FCC that strongly support the Fairness Doctrine. Indeed, as Commissioner James Quello remarked at the hearings, with apologies to Schlafly, "politics makes strange bedfellows."

Since speakers' positions at the hearings apparently were not preordained by ideological orientation, it was often difficult to predict who would support the Fairness Doctrine and who would oppose it. In short, it was hard to tell the players without a scorecard. But as the two days of hearings drew to a close the breakdown became more definite. Most, although not all, constitutional scholars and practicing journalists opposed the doctrine. It was supported principally by groups with a political axe to grind. The doctrine's proponents, it appeared, were united not by outlook but by pragmatic considerations—an alliance of those who advocate the use of federal power to force broadcasters to air their version of the truth.

The commission initiated its investigation into the continuing validity of the Fairness Doctrine in 1983 in order to determine "if any substantial possibility exists that the rules have impeded, rather than furthered, First Amendment objectives." If the doctrine has infringed the free-speech and -press rights of broadcasters, said the FCC notice of inquiry, "repeal may be warranted on that ground alone." Another issue raised by the inquiry is whether the Fairness Doctrine is merely a commission policy or was created by an act of Congress.

Those uninitiated in the mysteries of broadcast regulation may consider the answers to such questions obvious. After all, the First Amendment to the US Constitution says that "Congress shall make no law…abridging freedom of speech or of the press.…" How, then, can regulations that restrict the freedom of television and radio journalists possibly further "First Amendment objectives," regardless of whether they were adopted by Congress or created by the commission?

The traditional answer to this question is that the number of available broadcast frequencies is limited and therefore must be rationed by the government. In exchange for a broadcast license, the station owner must make his station available for the presentation of contrasting viewpoints on controversial issues of public importance. Otherwise, according to this theory, those who gain control over this scarce resource would monopolize the marketplace of ideas. Therefore, the FCC has the job of regulating the airwaves in order to keep them free.

This theory was elevated to constitutional status in 1969 in the landmark Supreme Court case Red Lion Broadcasting Co. v. FCC. The court endorsed the Fairness Doctrine with the oft-quoted remark: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Still, the court recognized as "a serious matter" the possibility that broadcasters would limit their coverage of controversial issues and engage in self-censorship to avoid trouble with the FCC. "If experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage," the court concluded, "there will be time enough to reconsider the constitutional implications."

The time for reconsideration clearly has arrived. Broadcasting is hardly the scarce resource it was in the 1940s when the Fairness Doctrine was conceived. Radio and television stations now outnumber daily newspapers by more than five to one. New technologies, from videocassette recorders (VCRs) and cable television to satellite delivery systems, have revolutionized the electronic-media marketplace, making it increasingly unlikely that anyone could corner the information market.

Even the Supreme Court has acknowledged that it may be time to take a second look at the constitutionality of the Fairness Doctrine. In a 1984 League of Women Voters case, which struck down a ban on broadcast editorials by public radio and television stations, the court took note of the FCC's Fairness Doctrine inquiry. Although Justice William Brennan, writing for the court, expressed no opinion on the legality of a commission decision to repeal or modify the doctrine, he added that if the FCC found that the rules inhibit speech, "we would then be forced to reconsider the constitutional basis of our decision in [Red Lion]."

Against this backdrop, the FCC, headed by Chairman Mark Fowler, has been attempting to strip away many of the regulations encumbering broadcasters. Among other things, he has proposed "a marketplace approach to broadcast regulation," in which the electronic media would be accorded the same constitutional status as those who ply their trade in print. The Fairness Doctrine hearings are part of this overall review of existing regulations.

This philosophical orientation has won Fowler few friends on the left or on the right. Some liberals have branded him the "mad monk of deregulation," the "James Watt of telecommunications." Many conservatives are no happier with Fowler. The AIM Report, published by the conservative group Accuracy in Media, grumbled that "the Reagan appointees to the FCC have been openly campaigning to abolish the Fairness Doctrine, and they have summarily rejected virtually every serious fairness complaint that has come before them, no matter how solidly documented. This is a reflection of the libertarian philosophy of FCC Chairman Mark Fowler.…" Phyllis Schlafly echoed this concern, claiming that once Fowler's views on the Fairness Doctrine became known, "the outrageous and blatant anti-Reagan bias of the TV network newscasts accelerated rapidly.…"

Critics from both ends of the political spectrum appear to agree that without the Fairness Doctrine, someone will end up controlling the airwaves—that is, someone other than themselves. Liberals see the specter of corporate power corrupting the marketplace of ideas. Andrew Schwartzman of Media Access Project has asserted that corporate free speech will come at the expense of the rights of individuals. Or, as Pat Aufderheide asked in the left-liberal weekly journal The Nation, "Whose First Amendment is it, anyway—the corporations' or the people's?" Conservatives are haunted by a more specific vision—liberal network bias. Hostility toward network news is the dominant theme in right-wing support of the the Fairness Doctrine.

Conservative groups have mounted assaults on several fronts to combat what they perceive to be slanted reporting by the networks. Sen. Jesse Helms recently created an organization dubbed "Fairness in Media," whose sole purpose is to encourage politically minded investors to buy CBS Television. The goal: to become "Dan Rather's boss" and presumably to tell him to stop spewing all that liberal hogwash, or else. The American Legal Foundation and other "public interest law firms" have taken a more direct approach. They have funded libel suits against a wide range of media defendants. Perhaps the most notable example was the ill-fated suit by General William Westmoreland against CBS—which, incidentally, was dropped after the general's subordinates testified that the CBS broadcast was substantially correct. These groups also have filed a series of Fairness Doctrine complaints at the FCC as part of this effort.

Organizations on both the left and the right dismiss the notion that the Fairness Doctrine inhibits broadcast journalism. Or, rather, liberals deny any chilling effect, while conservatives seem to be saying that the media could use a little inhibiting. Both sides base their arguments on faulty premises.

Conservative paranoia over network power seems oddly out of place given the political developments of the past five years. Phyllis Schlafly testified at the FCC that "a review of 10 years of network coverage of the equal rights amendment showed that the coverage was loaded 95-5 in favor of the ERA." She and others argue that the media have been wildly anti-Reagan. Even if true, it is hard to get too worked up over such claims—the networks obviously lacked the power to sustain the ERA or to keep Ronald Reagan from enjoying an overwhelming landslide.

Those who fear network bias have also chosen the wrong weapon. The Fairness Doctrine (and all other FCC content regulations, for that matter) operates against individual broadcasting stations, not networks. Granted, networks can be pressured through the handful of stations they own and operate. But if anyone can afford protracted legal battles over their programming, it is the networks and their stations—CBS, for instance, spent several million dollars in defending itself against the Westmoreland suit. It is smaller operations that are chilled, since often they can afford neither the Washington counsel nor the diversion of resources necessary to combat the special interests who use the Fairness Doctrine to launch costly legal attacks on broadcasters.

Conservatives should realize this. The Supreme Court Red Lion decision resulted from the refusal of an iconoclastic broadcaster in rural Pennsylvania to bow to FCC pressure to air a response to personal attacks made on a liberal writer. The station toed a staunchly conservative line before the Supreme Court test. Afterward, it was forced to be "balanced"—in other words, bland. The Fairness Doctrine thus has its greatest impact in stifling the development of controversial viewpoints at the grassroots level. It prevents the emergence of a broadcast counterpart to the likes of the conservative newspaper the Manchester Union Leader.

Liberals are similarly off-target when it comes to the Fairness Doctrine. Organizations such as the ACLU traditionally champion the First Amendment and thus are sensitive to claims that FCC regulations silence journalists. (Not all liberals are so sensitive. Herbert Chao Gunther of the Public Media Center, a "public interest" advertising agency, has been quoted as saying, "If corporations want the free speech rights of individuals, then they ought to be liable for capital punishment, too.") Consequently, the Fairness Doctrine is often painted as the means by which struggling political groups obtain a voice in the face of overwhelming odds. A writer for The Nation noted, "The Fairness Doctrine is perhaps most commonly invoked by citizens during local referendums in order to counter expensive, blanket ad campaigns by powerful interests."

Even if this could be considered a plausible characterization, however, it ignores the fact that the Fairness Doctrine's history is one of abuse. The Democratic National Committee mounted a Fairness Doctrine campaign in the mid-'60s to "inhibit the activity of…right-wing broadcasts." A confidential report to the committee stressed that the principal targets were "small rural stations…in desperate need of broadcast revenues" and that a continuing effort would force stations to drop certain programs from their broadcast schedule.

To the DNC, if not the public, the campaign was a success. Carl McIntire, an ultraconservative radio preacher and one of the primary voices the DNC sought to still, was dropped by nearly 400 radio stations. Others were silenced as well. More significantly, the campaign led directly to the test case which culminated in the Red Lion decision.

Such official abuse of broadcast regulations has not been limited to one side of the ideological fence. Those in power, regardless of political stripe, have used the FCC to help maintain that power. Richard Nixon reportedly threatened to hold up the licenses of Post-Newsweek stations as he became increasingly upset with the Washington Post's Watergate coverage. More pointedly, the Central Intelligence Agency is currently pursuing a Fairness Doctrine complaint against ABC over the network's news report that the agency had sought to assassinate a former agent. For the first time in history, one government agency is applying to another arm of the government to censure a critical news organization. The CIA has requested that the commission impose sanctions on ABC's owned and operated stations, including the possibility of revoking their licenses.

The challenged news report involved claims by a Honolulu investment counselor that he had been a covert CIA agent and that the agency had solicited ex-prison guard Mike Barnes to kill him. The allegation was made in interviews with Barnes on the September 19-20, 1984, editions of World News Tonight. ABC aired the CIA's denial of the allegations and later backed off the claims, issuing a statement that the network had been unable to corroborate the story and that Barnes had refused to take a lie-detector test.

The truth of the story remains unclear. What is certain, however, is that broadcasters will be far less willing to criticize the government when public officials who dislike a given report may file petitions to punish "offending" television stations. This new application of the Fairness Doctrine bears a sinister resemblance to "seditious libel"—the law by which colonial governors imprisoned editors brazen enough to criticize their policies.

The ACLU and Media Access Project, realizing that the CIA complaint strikes at the very heart of First Amendment values, have filed comments with the FCC opposing it, even though both groups support the Fairness Doctrine in general. They argue that the chilling effect on journalists is greater when another government body files a petition and that the Fairness Doctrine was never intended to allow government agencies to seek sanctions against broadcasters. Perhaps they are correct. An FCC staff lawyer recently said confidentially that he pays greater attention to requests for assistance or information from other government offices.

Acknowledging that the damage to free speech is greater when initiated at the government's behest, however, is a far cry from agreeing that inhibitions advocated by private parties are constitutionally acceptable. It is just as destructive to the First Amendment for nongovernmental groups to seek punishment for ABC in this case, since, in the extreme case, a complaint could endanger television station licenses. In fact, this threat currently exists.

The FCC dismissed the CIA petition in January this year, because "the allegations fail[ed] to establish prima facie complaints sufficient to initiate a Commission inquiry." However, the decision summarily rejected the idea that government agencies are barred from filing such complaints. Encouraged by this, the CIA has since renewed its petition in an effort to cure the failings in its first attempt. Also, the same day the FCC issued its decision, the conservative American Legal Foundation filed an inch-thick petition supporting the agency's claims against ABC. ALF is asking that the FCC consider the complaint when television stations owned by ABC as well as all its affiliates come up for license renewal. A spokesman for the conservative organization was optimistic about their complaint, saying, "We're not novices in this area."

Indeed. When ALF complained to the FCC about ABC's CIA newscasts, it already had on file two Fairness Doctrine complaints—one concerning the CBS documentary "The Uncounted Enemy: A Vietnam Deception," which was the subject of the Westmoreland libel case, and another which targets a segment of CBS's Our Times With Bill Moyers entitled "Pentagon Underground." The aggressiveness of such groups as ALF has earned them the label of "right-wing media bashers."

Ominous as these examples are, it is not the overt attempts at intimidation made possible by the Fairness Doctrine that represent its greatest threat to free speech. Most serious is the way the doctrine alters day-to-day news operations.

Station owners quickly learn that the easiest way to avoid complaints is to stay away from controversy. No one files Fairness Doctrine complaints for stories that were not produced—the complaints come only when broadcast news ruffles some feathers. As John Spain of the Radio and Television News Directors' Association testified at the hearings, "We all know the trigger words in this business: abortion, nuclear power, school integration, police brutality. Under the Fairness Doctrine the rule becomes, 'Deal with the issue rigorously and get burned; deal with it blandly and be safe.'"

The Fairness Doctrine need not even be enforced in order to have this stifling effect. The very existence of the doctrine places a cloud over journalistic freedom. For example, the FCC dismissed ALF's complaint concerning the CBS Westmoreland documentary shortly after the general raised the white flag in his libel case. Within a week, however, Commissioner Quello castigated the broadcast media in a speech before a gathering of news executives, stating that more programming like CBS's "Vietnam Deception" and the ABC allegations about the CIA "could have serious adverse consequences for the press—particularly the broadcast press."

Quello described the Westmoreland broadcast as "shoddy journalism," which "unjustly maligned…an honorable field general," and characterized the ABC news story as an "unbelievable accusation." He criticized television news in general for its adversary attitude toward government and its "insolent approach to the President." Although noting that "the present FCC doesn't believe in substituting its editorial judgment for that of a broadcaster," Quello added that the press should re-examine its role in order to placate "those who would…tighten the straightjacket on electronic journalism."

The commissioner was engaging in a little regulation by raised eyebrow—a time-tested technique for bringing the press to heel. In this case, this message was clear: if television news doesn't "clean up its act," these Fairness Doctrine complaints may be looked at more carefully. The FCC's life-and-death power over broadcast licenses makes this tactic particularly persuasive. It has been said that station owners are so sensitive to the commission's moods that when the FCC sniffles, the television industry sneezes.

Thus, in the end, it is the viewing public that suffers because of the Fairness Doctrine. The efforts by both liberal and conservative groups to use the regulation do not lead to increased presentation of controversial information, but less. They help to ensure that television will be little more than the "vast wasteland" described by former FCC chairman Newton Minow. The real tragedy of the Fairness Doctrine is that it tends to make the most powerful communications medium in the world's history safe only for the likes of Three's Company, Dynasty, and happy-talk news.

Robert Corn is a communications lawyer with the Washington, D.C., firm Steptoe & Johnson.

Will Congress Play Fair?

As of this writing, the Federal Communications Commission (FCC) has yet to issue a decision in its Fairness Doctrine inquiry. But informed sources both inside and outside the commission predict that before summer ends it will rule that it lacks authority to change the doctrine. The five commissioners are expected to conclude that Congress has sanctioned the fairness rules and that the commission, as an agency of the legislative branch, is powerless to repeal them. According to the anticipated commission findings, if the Fairness Doctrine is to be rescinded, Congress must act.

Congress, however, is an unlikely candidate for this task. That body has shown little enthusiasm for recognizing full First Amendment rights for broadcasters. In fact, it has been actively hostile to the idea.

The Senate Commerce Committee last year killed a bill sponsored by Sen. Robert Packwood (R–Ore.) that would have eliminated broadcast-content controls. This year's committee chairman, Sen. Jack Danforth (R–Mo.), recently proposed a "clean campaign act," which would require broadcasters and cable operators to provide free air time for candidates to respond to "negative ads" aired by their opponents.

If passed, the Danforth bill would put broadcasters even more at the mercy of politicians, since federal law already requires licensees to provide a "reasonable" amount of air time for candidates for federal office—at stations' lowest unit rate for advertising—yet denies stations any control over the content of political ads. The new bill would go the extra step of forcing broadcasters to give free time for candidates to respond to the cut-rate ads the stations were compelled to air in the first place.

Even though Congress may not be the answer, the FCC's Fairness Doctrine inquiry may not have been futile. The commission is also expected to find that the regulations do inhibit broadcast speech by discouraging controversial programming. Such a finding could provide the necessary support for a successful court challenge to the doctrine's constitutionality. The Supreme Court last year expressed its willingness to revisit the issue if the FCC were to conclude that the Fairness Doctrine chills free expression of ideas.

—R.L.C.