The Other Side of Fairness

LARRY BUMGARDNER

October 10, 1993|By LARRY BUMGARDNER

It's hard to vote against "fairness." For that and other moresinister reasons, it appears that Congress may reinstate an outdated and dangerously mislabeled broadcasting rule known as the Fairness Doctrine.

The Fairness Doctrine required radio and TV stations to provide balance in their overall programming by showing both sides of controversial issues -- or, in simple terms, to be fair. But broadcasters and other critics have called the rule anything but fair since it was first officially imposed by the Federal Communications Commission in 1949. Even the FCC decided it was unfair and repealed it in 1987.

But Congress is considering reimposing it by statute, in part to counter the influence of Rush Limbaugh and other conservative talk show hosts by enabling more liberal voices to demand that stations run opposing views. The "Hush Rush Rule," as the Wall Street Journal calls it, has been attached to campaign reform legislation.

In fact, Congress has tried to reinstate the doctrine several times since its repeal, even before Mr. Limbaugh and talk radio were such potent political forces. President Ronald Reagan vetoed the legislation once, and only the threat of a veto from President George Bush kept it from becoming law during his term.

But Congress has failed to realize that the Fairness Doctrine was both bad policy and bad practice. There are many reasons the rule deserves to be left in the technological junkyard with black-and-white TVs and AM-only radios.

dTC First, the doctrine has been abused by both political parties over the years. Republican and Democratic administrations lodged fairness complaints with the FCC to intimidate and harass broadcast stations airing views contrary to their own. Any rule so susceptible to abuse does not deserve to be law.

Second, as even the FCC has determined, the doctrine did not serve its stated purpose of encouraging discussion of important issues. It actually inhibited such discussion as broadcasters often chose not to cover an issue at all, rather than risk a complaint that might result in their having to air opposing views.

Third, and most important, the Fairness Doctrine should be seen as an obvious infringement on broadcasters' First Amendment rights. Similar laws have been struck down as unconstitutional when applied to newspapers and other members of the print media.

But almost 25 years ago, the Supreme Court ruled that broadcasters are due less First Amendment protection because the broadcast airwaves are a scarce and limited resource owned by the public. This "scarcity rationale" has been used to justify not only the Fairness Doctrine, but many other limits on the First Amendment rights of broadcasters.

If such a view was ever justified, it is not any longer. Today, radio and TV stations far outnumber daily newspapers; cable TV has provided a seemingly limitless outlet for programming channels; and broadcast technology has advanced to the point that scarcity is no longer a real issue.

In addition, the broadcast media have long since passed newspapers as the prime source of information for the majority of Americans. Many Americans almost never read a newspaper, but it is very rare that you find a home without a television or radio. The result is that Congress and some courts are saddling our most influential media with the most burdensome rules infringing on freedom of the press.

Still, Congress seems compelled to compound the problem by reimposing the Fairness Doctrine. Congressional leaders seem to think they can order "fairness," rather than leaving it to journalistic responsibility or to the economic marketplace. It's doubtful that Congress has thought of all the potential consequences of enacting the Fairness Doctrine.

The law might finally force the Supreme Court to reconsider the doctrine's constitutionality in light of the passage of a quarter-century. That could entail looking at the overall scarcity rationale and rejecting the primary basis for greater regulation of the broadcast media. In a footnote to a 1984 decision, the court hinted that it might do just that, if given the right case. Congress will not happily give up its considerable power over broadcasting.

Or, should the Fairness Doctrine survive a court challenge and be enforced by the FCC, it will only be a matter of time before conservatives are using the rule to intimidate liberal commentators, rather than liberals using it to "hush Rush." Either way, Congress may regret the day it rushed to judgment on the Fairness Doctrine.

A lawyer and former journalist, Larry Bumgardner is associate vice chancellor and teaches communications law at Pepperdine University in Malibu, Calif. He wrote this commentary for the Los Angeles Daily News.

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