The left sure seems to have a lot invested in convincing the American people they do not want to reinstate the Fairness Doctrine. Whenever conservatives like George Will accuse them of wanting to revive the abandoned FCC rule, the usual suspects are quick to completely deny any such plans exist. It’s like that classic scene from Star Wars:


The Washington Monthly’s Steve Benen is the chief wannabe Jedi mind trickster. In response to Will’s latest, he writes:

I haven’t the foggiest idea what compelled George Will to write such nonsense. It’s not only ridiculous, it neglects to mention to the reader that no one is seriously trying to reinstate the Fairness Doctrine. TNR’s Marin Cogan recently wrote a great piece, noting that she couldn’t find anyone on the left who really wants to reinstate the policy.

Really? No one? I guess it depends on what you mean by ‘Fairness Doctrine’. First some history. The original Fairness Doctrine was promulgated by the Federal Communications Commission in 1949 pursuant to authority derived from the 1934 Communications Act. As Will notes, the Supreme Court held the doctrine did not violate the First Amendment in 1969 and the doctrine was still in effect up until the Reagan Administration abandoned it in 1987. In other words, no new legislation would be needed to revive the worst elements of the Fairness Doctrine. They still exist under the 1934 Communications Act and have been blessed by the Supreme Court. As one leading Washington think tank recently concluded:

First, from a regulatory perspective, the Fairness Doctrine was never formally repealed. The FCC did announce in 1987 that it would no longer enforce certain regulations under the umbrella of the Fairness Doctrine, and in 1989 a circuit court upheld the FCC decision. The Supreme Court, however, has never overruled the cases that authorized the FCC’s enforcement of the Fairness Doctrine.

Moreover, the original Communications Act of 1934 still authorizes the FCC to require “reasonable access to or to permit purchase of reasonable amounts of time” by a legally qualified candidate for federal elective office, and equal opportunities must be afforded all other candidates for that office. These obligations come from the same set of concerns from which the Fairness Doctrine arose. And Section 315 of the Communications Act still requires commercial broadcasters “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance.”

Thus, the public obligations inherent in the Fairness Doctrine are still in existence and operative, at least on paper.

Which think tank authored those lines? Presiden-elect Barack Obama transition team chief John Podesta’s Center for American Progress published the above paragraphs in their report: The Structural Imbalance of Political Talk Radio. And what policy changes does the CAP report recommend to ‘fix’ this ‘structural imbalance’?

More important, the Fairness Doctrine was never, by itself, an effective tool to ensure the fair discussion of important issues. The Fairness Doctrine was most effective as part of a regulatory structure that limited license terms to three years, subjected broadcasters to license challenges through comparative hearings, required notice to the local community that licenses were going to expire, and empowered the local community through a process of interviewing a variety of local leaders. Simply reinstating the Fairness Doctrine will do little to address the gap between conservative and progressive talk unless the underlying elements of the public trustee doctrine are enforced, in particular, the requirements of local accountability and the reasonable airing of important matters.

We recommend the following steps the FCC should take to ensure local needs are being met:

  • Provide a license to radio broadcasters for a term no longer than three years.
  • Require radio broadcast licensees to regularly show that they are operating on behalf of the public interest and provide public documentation and viewing of how they are meeting these obligations.

So under the old Fairness Doctrine, free speech on the radio was stifled by an FCC rule that required broadcasters to devote reasonable time to fairly presenting all sides of any controversial issue discussed on the air, with the government deciding the meaning of all the italicized words. Under the CAP/Podesta/Obama Fairness Doctrine broadcasters must renew their licenses every three years instead of every eight and when they do so the must “show that they are operating on behalf of the public interest” with public interest being defined as whatever ACORN like community organizers the left can rustle up to help define “community needs.” Will writes:

In 1969, when the Supreme Court declared the fairness doctrine constitutional, it probably did not know the Kennedy administration’s use of it, as one official described it: “Our massive strategy was to use the fairness doctrine to challenge and harass the right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.”

Doesn’t sound like the left’s game plan for stifling free speech has changed all that much in 40 years. CAP report co-author Mark Lloyd told The New Republic, “I don’t think there’s any movement [to restore the fairness doctrine] at all. … We don’t support it.” … In other words: This is not the Fairness Doctrine you’re looking for.