You may have noticed a recent decline in chatter about reinstating the Fairness Doctrine, and some Democrats backing away from earlier pronouncements of support. Marin Cogan claims that this was all a straw man anyway, the result of right-wing fear-mongering and a “manufactured controversy.” Blake Dvorak responds by pointing to the words of Congressional leaders that really did call for a reinstatement of the Fairness Doctrine.

Why backtrack now? It could be that the economy, wars abroad, and serial bailout votes are crowding the Fairness Doctrine out of the agenda. It may also be that proponents of the Fairness Doctrine took a closer look and decided that they would lose a constitutional challenge.

A legal challenge to the new Fairness Doctrine would succeed for three reasons. First, the legal rationale that justified it in the first place has been overcome by technology. Second, the effect of a new Fairness Doctrine would be to restrict speech, not increase the volume and quality of discourse. Third, the Supreme Court, as currently constituted, will overturn a new Fairness Doctrine. 

Technology

The Fairness Doctrine existed from 1949 to 1987 in FCC policies and regulations, requiring coverage and balanced discussion of social issues. The end of the Fairness Doctrine came as a change in FCC policy, not from a defeat in court. In fact, it survived Supreme Court review in the 1969 case Red Lion Broadcasting Co. v. FCC. The lack of bandwidth in the early days of radio and the scarcity of broadcast licenses meant that commercial broadcast license-holders had to provide opposing views when covering controversial issues.

Print editors fared better. In 1974, the Court invalidated a state statute that mandated free space in newspapers for political candidates to reply to criticism and attacks in Miami Herald Publishing Co. v. Tornillo. Minus the scarcity rationale, a free press cannot be forced to share its pages with opponents. As technology advanced, the policy was not applied to all media. The FCC later exempted “subscription television” (cable TV) from political access requirements in its 1978 Policy Statement.

In 1984 the Court noted that technology had advanced in FCC v. League of Women Voters of California. In a footnote, the Court acknowledged that the policy had come under criticism with the advent of cable and satellite TV, but declined to overturn the Fairness Doctrine without a signal from Congress or the FCC that scarcity was no longer a valid rationale for its imposition.

Reconstitution of the Fairness Doctrine under a scarcity rationale is laughable today. The advent of HD Radio, satellite radio, Wi-Fi radio in cars, streaming radio on cell phones, cable television (now in a majority of American households), satellite television, the internet, and streaming internet radio stations undermine any case for scarcity.

Reducing Speech, Not Enhancing It

The Supreme Court said from the outset in Red Lion that if the Fairness Doctrine ends up improperly blocking speech from public discussion, then it would be unconstitutional. Proponents of the Fairness Doctrine are pretty clearly gunning for conservative talk radio, which appears to be the only format of media that doesn’t lean left.

The enforcement of the new Fairness Doctrine would likely be the same as standards for indecency or profanity. Aggrieved listeners would file a complaint with the FCC, and the inevitable result is a deterrent against any opinion without a counterpoint commentator. Prof. Jack Balkin provides a detailed description of how broadcasters complied without increasing the quality of their broadcasts. Broad discretion as to which issues are covered and the advantage of picking your opposition make compliance easy but do not guarantee meaningful debate. In short, a radio version Hannity & Colmes would pass muster, but did Colmes ever win one of those exchanges?

The Fairness Doctrine ends up inhibiting a lively discussion of social issues. Prof. Balkin believes that the Fairness Doctrine does pass constitutional muster but remains poor public policy, and recently commented that the Fairness Doctrine is not coming back, and certainly not to the internet. Professors Eugene Volokh and Cass Sunstein agree that the Fairness Doctrine makes for bad policy in this video. Prof. Volokh has also asked Fairness Doctrine supporters how media outlets would accommodate multiple viewpoints beyond the traditional left-right divide. 

Simply put, this is a measure that will restrict speech, and no amount of civic education window-dressing can hide that.

Supreme Court Composition

Under the current composition of the Court, the Fairness Doctrine is unlikely to survive.

This can only be fleshed out in an article of its own, but the bottom line is that the Court has recently held unconstitutional campaign finance reform measures that were far narrower than the Fairness Doctrine. In FEC v. Wisconsin Right to Life, the Court invalidated part of the McCain-Feingold Bipartisan Campaign Reform Act of 2002 with respect to issue advocacy. In Davis v. FEC, the Court invalidated the “millionaire’s amendment” of the same act, a provision giving fundraising advantages to political candidates facing wealthy opponents.

Some may contend that I’m erring in making a connection between campaign finance and broadcast restrictions that inevitably come with a federal license. But it’s hard to argue that these restrictions on political expression, which impact some advocacy groups and some political candidates, would be invalidated while a 24/7 restriction on a whole medium of communication on all controversial social issues would be upheld as constitutional. Even harder when you take away any argument under a scarcity rationale and face the fact that implementation of the policy will inevitably reduce political discussion instead of enhancing it.

The facts above lead me to believe that Barack Obama, a former constitutional law professor, omitted the Fairness Doctrine from his platform for a reason. As Jesse Walker points out, there are many other levers the president and FCC can pull that influence public debate without inviting a constitutional challenge.