Rules of the Air

Remember the "fairness doctrine"? Back in the 1940s, the Federal Communications Commission announced that broadcasters would be expected to provide balanced coverage of controversial topics.

As an aspiration, that sounded fine. But as a legal requirement, it imposed an onerous burden that actually deterred TV and radio stations from dealing with issues of public concern.

The FCC itself reached that conclusion in 1987, when it repealed the fairness doctrine, citing its chilling effect on speech. The commission found that the desire to avoid complaints and possible disciplinary action encouraged broadcasters to steer clear of controversial discussions and provocative commentary.

But the fairness doctrine was not quite dead yet. The FCC continued to enforce two narrower rules that grew out of it and that posed similar threats to freedom of speech: the political editorial rule, which required stations that criticized a candidate or endorsed his opponent to let him respond on the air, and the personal attack rule, which gave the same right to individuals or groups whose "honesty, character, integrity, or like personal qualities" were impugned.

The commission was never able to explain why these rules were not just as unnecessary, counterproductive, and unconstitutional as the fairness doctrine itself. Noting the continued inadequacy of the FCC's defense after many years of litigation, an exasperated federal appeals court recently ordered it to rescind both rules.

The rules could still be revived if the FCC goes through a new rule making process and offers a justification that satisfies the courts. Indeed, if the Democrats have their way, the entire fairness doctrine could be reinstated by Congress.

In this context, it's important to remember that the FCC did not scrap the fairness doctrine simply because it didn't work as intended. The commission also concluded that it violated the First Amendment.

When the U.S. Supreme Court upheld the fairness doctrine in 1969, it said the "scarcity of broadcast frequencies" justified speech restrictions for TV and radio stations that would not pass muster if applied to print media. This argument was never very persuasive, since all resources are scarce, including the capital needed to put out a newspaper or magazine.

With the proliferation of radio and TV stations, including dozens of cable channels, the scarcity argument made even less sense. "The scarcity rationale…no longer justifies a different standard of First Amendment review for the electronic press," the FCC concluded in 1987. "The function of the electronic press in a free society is identical to that of the printed press and…the constitutional analysis of government control of content should be no different."

The other major argument for giving broadcasters less First Amendment protection than publishers is that TV and radio stations get to use "the public airwaves" for free, so it's only fair that they should be required to operate in "the public interest." This rationale is used to justify not only the fairness doctrine but also demands that broadcasters keep sex and violence in check, offer more educational programming for children, and carry presidential debates and other dull fare instead of the shows that viewers prefer.

But the "public airwaves" argument amounts to little more than a loaded phrase. After all, publishers use "the public roads" to deliver their newspapers, and cable companies use public rights of way to hook up their customers. These facts do not mean that The New York Times and CNN must submit to the government's content requirements.

What's more, it's not really true that broadcasters use the airwaves for free. While the first owner of a station does not pay for a broadcast license, its value is part of the price that subsequent owners pay.

Thus, to a large extent, the ability to broadcast at a given frequency in a particular area is already treated like a transferable property right. Yet the government still insists, when it's convenient, that the broadcaster's property is a communal resource.

Broadcasters bear some responsibility for this situation. Whenever they argue that broadcast rights should be given away instead of auctioned off (as they did when they got a chunk of spectrum for digital TV in 1996), they reinforce the idea that they should be subject to special constraints.

But with cable or satellite TV in more than three-quarters of U.S. households, the "public airwaves" distinction is becoming increasingly untenable. To the typical viewer, cable and over-the-air channels are indistinguishable. Pretty soon, only bureaucrats and politicians will see a difference.