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Commentary: Government Imposed 'Fairness' Is A Proven Failure

The Fairness Doctrine was a flawed and impermissible approach to control of broadcast news coverage and program content 2/14/2009 12:00:00 AM Eastern

Will there be new regulations of broadcast news and program content?

While there are claims that government oversight and regulation of broadcast news and program content are necessary for fairness, balance, localism or good citizenship, the question remains whether government is the best, or even a possible, vehicle to reach those ends.

It is said that a better informed reading of the First Amendment's protection of speech and press affirmatively authorizes government revision of news and program content to provide, for example, information balance or better behavior by the public.

We want to accept that productive regulation of commercial enterprise is something we can manage. But regulation of speech, press and thought is quite a different matter. There are no economic models or thought paradigms that can help us assess the "right" amount of government interference with what otherwise would be the free flow of information to the public. Can we impose a government truth for issues of political or social consequence and still avoid benign or corrosive government censorship?

The record we do have is that of the Federal Communications Commission in its enforcement of the Fairness Doctrine over a number of years.
While the Agency and Judicial theories were attractive at its adoption, by 1985 the facts were overwhelming. It was a flawed and impermissible approach to control of broadcast news coverage and program content.

Those years can be seen as a unique and extraordinary test of the notion that the First Amendment can and should be used to further other social purposes along with the traditional use of protecting, for example, the press from government control. Ordering news to present other views--whether or not the truth, whether or not newsworthy by journalism standards and determined by counting transcript lines and seconds of broadcast with a stopwatch to meet the government's mechanical standard for fairness--did not prove out.

After an exhaustive factual examination, the FCC found in 1987 that the Doctrine:

"1) chills speech and results in the net reduction of the presentation of controversial issues of public concern and
2) excessively infringes on the editorial discretion of broadcast journalists and involves unnecessary government intervention..." ( 41)

The FCC opinion demonstrated the risks to any broadcaster when trying to comply with the Doctrine; government sanctions on broadcasting controversial issues when government would "second-guess broadcasters'
judgment on the issues they cover as well as on the manner and balance of coverage."

Not only was it "safer" to broadcast other kinds of programming, the Doctrine favored orthodox opinions and penalized or impeded the expression of unpopular opinion depriving the public of robust debates which the Doctrine in theory was to promote.

This is not a record that the Doctrine was "all right." Nor was it consistent with broad discretion for the broadcaster in what would be broadcast. The FCC found explicitly that the Doctrine "indisputably represents an intrusion into a broadcaster's editorial discretion," both in its enforcement and in the threat of enforcement.

In language appropriate to government fixing of "balance" or other subjective terms, the FCC said, "The Doctrine forces the government to make subjective and vague value judgments among various opinions on controversial issues to determine whether a licensee has complied with its regulatory obligations."

Of course, it was later discovered that the Doctrine had been used by political campaigns to drive opposing views off the air by harassing broadcasters with Fairness complaints. And, on a different concern, the chairperson of the FCC and the majority were and are appointed by the President. When the Commission ruled on Equal Time complaints as well as Fairness complaints during political campaigns and controversies, this had to raise theoretical governance questions, however moderate and fair the Commissioners.

It is hard to imagine the print press having to deal with regulations broadcasters experienced. The FCC concluded from its experience that broadcasters should have the same protection under the First Amendment as the print press. What a change and improvement that would make for press and public.

Corydon B. Dunham was executive VP and general counsel of NBC. He is a Woodrow Wilson Scholar and a participant in Harvard Law School's Corydon B. Dunham Fellowship for the First Amendment.

 

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