Tuesday, December 30, 2008

Bring Back the Fairness Doctrine, and then Enforce it Fairly and Evenly to Bury it Forever

Conservatives are concerned that the incoming Democratic regime will reimpose the Fairness Doctrine on the broadcast industry.

The Fairness Doctrine has often been misunderstood. First, it was never a legislative enactment. It was promulgated by the Federal Communications Commission in 1949 and rescinded in 1987. The premise behind its adoption was the limited band width then available on the public airways. The Supreme Court in an 8-0 opinion upheld the constitutionality of the Fairness Doctrine, following this premise, but left open the issue of its constitutionality if it restrained speech.

The FCC Doctrine had two major components. First, broadcasters had to devote time to discussing controversial matters of public interest.

Second, broadcasters had to “afford reasonable opportunities” for airing contrasting views on matters of public importance.

The FCC did not technically require, contrary to popular perception, broadcasters to provide equal time.

Unlike three decades ago, the media has substantial alternatives in cable and the internet. Cable would technically not be covered under the original Fairness Doctrine because it does not use the public bandwidths.

Clearly, beginning with the path pioneered by Rush Limbaugh, talk radio has become the media outlet for conservatives, who comprise 75% of the market. Liberals thrive in the mainstream media, including newspapers and television, Hollywood, and the academic profession.

We are in a new cycle of campaigning. The Republicans pioneered small campaign contributions by millions of individual contributors, and then talk radio. The Democrats, led by Governor Howard Dean four years ago, and mastered by Senator Obama this cycle, have mastered the use of the internet.

Both House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid support it. Senator Reid has been singled out by Rush for special criticism. Senators Boxer, Durbin, Kerry, and Schumer want to bring it back. Their goal is to muzzle talk radio. While President Elect Obama has disclaimed any desire to reimpose it, he also singled out Fox News, Rush Limbaugh, and Sean Hannity for criticism during the campaign. Whether or not he will resist Congressional pressures remains to be seen.

If enacted, the Doctrine will be litigated on First Amendment grounds. One can assume that the lawyers for ABC and Clear Channel/Premiere Radio Networks have already drafted their complaints, and decided in which “friendly jurisdictions” to file suit. The constitutionality will ultimately be decided the Supreme Court, and if that’s a 5:4 decision dependant upon Justice Kennedy, then anything is possible.

Historically, the Doctrine should rank up there with the Alien and Sedition Acts and campus speech codes as gross violations of Free Speech.

Implicit in the Fairness Doctrine is the belief, or rather the misbelieve, that the government can, and should, define and enforce objectivity in speech.

Sometimes the best way to get rid of a stupid law or regulation is to enforce it. So let’s enforce the Fairness Doctrine.

Everytime NBC broadcasts a puff piece on the Obama Administration, demand equal time for a response. So too with ABC and CBS. The three major networks are the most at risk under the Fairness Doctrine. After a short time fighting a flood of fairness complaints, the networks will plea for relief from Congress or the FCC.

We witnessed this past year an incredibly entertaining, riveting, hilarious parody of Governor Palin by Tina Fay on Saturday Night Live. Demand similar treatment of Senator Biden. If David Letterman goes on a rant against Senator McCain, then request similar treatment of Senator Obama.

Absurd? Of course, but then so is the Fairness Doctrine.

The power of Saturday Night Live should not be underestimated. Governor Jimmy Carter won a close election in 1976 over President Ford. Carter carried Ohio’s 25 electoral votes by a popular margin of 11,116 votes. SNL throughout the campaign did a powerful parody of President Ford as a stumbling buffoon, characterized by the pratfalls of Chevy Chase. Chevy recently admitted he wanted Ford to lose and Carter to win. One assumes the same mindset existed this past election with SNL’s portrayal of Governor Palin.

Without Ohio, Carter still would have won, but only by a electoral vote of 272-265.

Let us note that “localism,” a more subtle alternative to the Fairness Doctrine is kicking around Congressional Democrats today.

Under localism, stations would have to create “community advisory boards” comprised of local officials and other community leaders. These boards would then advise the stations whether their broadcast content address the needs of the community, as determined by the advisory board. Localism by liberal local community activists will have a chilling effect on free speech.

John Podesta, who heads President Elect Obama’s transition team, is veritably salvitating that fines, perhaps totaling $250 million, for violating community needs would go the Corporation for Public Broadcasting, the parent of National Public Radio (NPR).

Localism is much more subtle than the Fairness Doctrine, but just as offensive to the First Amendment.

President Elect Obama supports localism.

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