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Debate Breaks out on Senate Floor Over Fairness Doctrine

February 26, 2009

I was pleased to learn last week that President Obama stated through a spokesperson that he does not favor reinstatement of the Fairness Doctrine. This is outstanding news for those of us who favor free speech in the broadcast marketplace, and I want to thank President Obama for reaffirming his commitment to this.  While I am pleased to hear that President Obama has said he will oppose the Fairness Doctrine, I would like to see his words followed by action.  As Democratic senators are currently calling for the reinstatement of the doctrine, it is time for the president to reaffirm to the fellow members of his party and to the whole nation that the Federal Communications Commission will not reinstitute the doctrine and stifle our First Amendment rights.

The Fairness Doctrine was a regulation that the Federal Communications Commission developed to require FCC-licensed broadcasters to provide contrasting viewpoints on controversial issues.  However, the FCC conducted a review of this regulation in 1985 and concluded that "we no longer believe that the Fairness Doctrine serves the public interest."  In explaining why they reached this conclusion, the FCC wrote, "the interest of the public is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming unnecessarily restricts the journalistic freedoms of broadcasters."  The FCC's refusal to enforce the Fairness Doctrine was later upheld in the DC Circuit Court of Appeals in 1989.

I have been outspoken on this issue for some time.  For example, during consideration of the fiscal year 2006 Department of Defense Authorization Bill, I successfully authored an amendment to prevent the needless re-evaluation of the American Forces Radio and Television Service and the Armed Forces Network.  At that time, I made the point that if the troops do not like what they are hearing, they could call the radio station and ask that the programming be changed.  It is called the market.  If there is no market for it, why should we unnecessarily change military radio programming? I was also a cosponsor of Senate Amendment 2020 to the Department of Defense Authorization Bill for fiscal year 2008, which would have prohibited the FCC from implementing the Fairness Doctrine in any programming. 

          In 1949, when the FCC developed the doctrine, it viewed licensed stations as public property and decided that there were far too few radio stations and too few frequencies for the public to get contrasting points of view. In those days there were not more than a couple of AM stations per market. But the doctrine didn't work. Instead, stations simply didn't discuss issues that were controversial, to avoid the possibility of FCC legal action. The doctrine had a chilling effect over the broadcast community.

It deeply concerns me that any revival of the Fairness Doctrine will have a similar chilling effect, not only on talk radio, but also on the willingness of religious broadcasters to air political, and perhaps even religious, messages. It is well known that the only radio station ever taken off the airwaves was a Christian radio station, WGCB in Red Lion, Pennsylvania. While in that particular instance the supposed "offense" was a personal attack against the author of a political publication, the case is instructive. Religious messages are, often times, inherently political. Even when they are not, they could be considered controversial, and under the Fairness Doctrine as it once existed, controversial issues of public importance must be presented in an equitable and balanced manner. I am concerned that the ACLU and other liberal organizations will use this logic to file lawsuits against anyone who presents a message that they deem to be controversial. Though I believe these lawsuits would ultimately fail on First Amendment grounds, the chilling effect that the mere threat of a lawsuit will have on religious broadcasters could be substantial.

Free speech is fundamental to what it means to be an American, and it must be protected.  Re-imposing some form of a Fairness Doctrine threatens this First Amendment right.  We all know what is going on here: pure politics. Some on the Left of the political spectrum are frustrated that more talk radio shows have a conservative political leaning than have a liberal political leaning. In response, I say that the content is market driven. If more people want to listen to a certain type of talk radio, then those programs in demand will be sustained by advertising, donations, and other sources of income. Within the current market system, American consumers are getting what they want. If the demand for liberal programming were greater, there would be more shows with that content. Any attempt by a few liberals to reinstate the Fairness Doctrine clearly goes against the will of Congress and the American people.  It is a dangerous maneuver to enact more government policing of our airwaves.  With the onset of the internet and other media technology, there are countless sources of information at our fingertips.  There is no reason to bring back the Fairness Doctrine or any version of it.

Not only do I stand firm in my opposition to the Fairness Doctrine, but I am also wary of any stealth attempts aimed at regulating the airwaves, such as broadcast localism and licensing changes. I intend to fight against the regulation of free speech, not just the Fairness Doctrine, but in all its various forms. My colleague from South Carolina's amendment is vital element in this fight, and I extend to it my complete support.