The Dangers of the Fairness Doctrine

This summer, three Democratic senators have called for a return of the Fairness Doctrine, a misguided concept that required broadcasters to provide a forum for different viewpoints when discussing controversial public issues.

In 1987, the Federal Communications Commission under Dennis Patrick found the Fairness Doctrine to be unconstitutional and repealed it. Now, senators Durbin, Feinstein, and Kerry are among those who want to reintroduce it.

Broadcast investments in Disney, CBS, Clear Channel, and thousands of smaller companies would suffer if the Fairness Doctrine were revived. If a local sportscaster calls Alex Rodriguez the best baseball talent in New York, fans of Jeter, Reyes, Wright, and Maine might want equal time. Anyone not happy with Katie Couric's statements about the beauty of a town could demand time to respond. Successful programming rife with opinion, such as Rush Limbaugh's show, could not easily be broadcast. Even ordinary, day-to-day broadcast operations would be affected.

Broadcast owners would not necessarily accommodate every request for response time, but disgruntled viewers could and would make their dissatisfaction known to the FCC at the time of license renewal. Companies owning stations up for license renewal could be forced to confront a large number of complaints simply due to the content of their programming.

Putting the government in a position of deciding the content that must be broadcast and, implicitly, which content must not, is an untenable situation in a free society. Other countries have state-owned or -controlled broadcast stations — not America. Mr. Patrick and his FCC colleagues did not abolish the Fairness Doctrine to help Rush Limbaugh and other conservative talk radio hosts who were not yet on the air. No one could have predicted in 1987 how much America wanted conservative talk radio. Mr. Patrick and his colleagues simply saw the obvious: an unconstitutional policy that was hamstringing the day-to-day operations of commercial broadcasters.

Regardless, Mr. Durbin and some of colleagues want to resurrect the Fairness Doctrine. Their motivation is transparent — they want to roll back radio to the good old days when there was no conservative talk medium. Congress can change laws, but it can change neither the Constitution nor technology.

The Fairness Doctrine applied only to free, over-the-air broadcasting, which accounts for a rapidly diminishing share of the American audience. Howard Stern switched to a subscription-based format beyond the reach of most content regulation from a broadcast format. Sean Hannity, Laura Ingraham, Rush Limbaugh, Michael Savage, and others could do the same if broadcast stations became inhospitable to opinionated entertainment.

Moreover, programs are increasingly available to consumers directly over the Internet, thereby avoiding content regulation entirely. New 3G and WiMAX wireless broadband services are making streaming Internet programming equally available to the car, home, or office.

Revival of the Fairness Doctrine would not silence speech in America; it would merely drive many forms of speech and audiences to other media. Innovative programming would eschew broadcast outlets and the regulation that comes with it.

The congressmen and others who call for a return of the Fairness Doctrine often invoke the phrase "the airwaves belong to the public" as the unpersuasive justification for trampling the First Amendment. To hear the argument, one might imagine that broadcasters merely lease spectrum from the government.

Yet broadcasters collectively, not the public, have spent tens of billions of dollars to purchase licenses and substantially more for programming and operational expenses. The mere fact that the FCC licenses spectrum does not give it the power to limit the First Amendment any more than any other government office that issues any type of license.

The constitutional basis for the Fairness Doctrine is dubious. The Supreme Court in 1969 opined in Red Lion that government regulation of broadcast content was permissible because of licensing of scarce spectrum. Practically all resources in our economy are scarce, but licensing of a scarce resource is not a basis to suspend the Constitution. Moreover, all FCC licensees — from amateur radio operators to large wireless companies — use scarce spectrum and face the same public interest standards as broadcasters.

A return to the Fairness Doctrine would primarily erode the value of the broadcast industry. But all Americans should be concerned. A government willing to deny First Amendment rights to broadcasters today could be willing to deny them to everyone tomorrow.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.