Democrats Abandoning the First Amendment, Part 1: The Fairness Doctrine

by on January 29, 2007 · 10 comments

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”


Nat Hentoff, a famous civil libertarian and one of our nation’s most tireless defenders of freedom of speech, penned an editorial for today’s Washington Times about congressional efforts to reinstitute the so-called Fairness Doctrine, which was in effect from 1949 until 1987 when the Reagan Administration FCC abolished it.

This effort, he notes, is being led by four Democrats–Sen. Bernie Sanders of Vermont and Reps. Dennis Kucinich of Ohio and Maurice Hinchey and Louise Slaughter, both of New York. Hentoff argues that these Democrats are under the illusion that by reinstituting the Fairness Doctrine they will be ensuring a greater diversity of views in the modern media marketplace. The reality, he argues, will be quite different. Hentoff was a radio broadcaster himself in the old days when the Fairness Doctrine was in effect and he notes that the threat of regulation had a severe chilling effect on free speech:

If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment–precisely the opposite of what the founders clearly intended…

During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent.

After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply. This happened at other stations as well.

The chilling effect associated with the Fairness Doctrine has been thoroughly documented by many media analysts and backs up what Hentoff experienced. Economists Thomas Hazlett and David Sosa provided the definitive economic treatment of the issue in their seminal 1997 study, “Was the Fairness Doctrine a ‘Chilling Effect’? Evidence from the Post-Deregulation Radio Market.” Hazlett and Sosa even created an economic model and crunched some numbers to illustrate the Doctrine’s negative impact. And the definitive legal critique of the Fairness Doctrine can be found in Chapter 9 of Thomas G. Krattenmaker and Lucas A. Powe, Jr.’s excellent treatise on Regulating Broadcast Programming. They document the many doctrinal inconsistencies associated with the Doctrine and highlight how the rule was used as a tool of political extortion by presidents from both political parties who wanted to stiffle dissent about their administrations.

But you don’t need to sweat the numbers or read lengthy legal tomes to realize just how much better off we are without the Fairness Doctrine on the books. Just look around at the amazingly vibrant and diverse media marketplace that exists today. The cornucopia of media choices is overflowing and there’s now something for every conceivable human interest under the sun.

But Hentoff notes that the Fairness Doctrine could be even more destructive to the vibrant exchange of viewpoints today because policy makers might try to impose it on these new media outlets as well:

Should this enemy of free expression become law again in coming years, it would very likely also extend to FCC bureaucrats’ taking charge of freedom of speech on cable television and the Internet and continuing new forms of expression–under the mandate of the FCC’s definers of “diversity of views.”

There are liberals who preach the need for “diversity of views” in calling for the return of the Fairness Doctrine because they bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators. But these liberals ignore why we have the First Amendment. As Oliver Wendell Holmes emphasized: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not the thought that we hate.”

In closing, I should note there have been some Republicans in favor of reinstituting the Fairness Doctrine as well. But there are fewer today than in the past. Of course, that might have something to do with the fact that conservative viewpoints are getting a lot more play on the airwaves these days. Thus, some of the former pro-regulatory conservatives probably no longer favor the Fairness Doctrine, feeling that it might chill their voices instead of their opponents.

(Next up in the series: How Democrats are leading the charge to regulate “excessive violence” on television).

  • http://techdirt.com/ Mike Masnick

    The Fairness Doctrine is incredibly dumb, but just to be accurate, you should note that Sen. Sanders is not actually a Democrat, but an Independent.

    Personally, I don’t care what party any politician is in, just their policies. Why even bother listing their affiliation or setting this up as an attack on Democratic Party politicians? Why not just focus on any politician who is introducing similarly anti-free speech policies?

  • http://techdirt.com/ Mike Masnick

    The Fairness Doctrine is incredibly dumb, but just to be accurate, you should note that Sen. Sanders is not actually a Democrat, but an Independent.

    Personally, I don’t care what party any politician is in, just their policies. Why even bother listing their affiliation or setting this up as an attack on Democratic Party politicians? Why not just focus on any politician who is introducing similarly anti-free speech policies?

  • Adam Thierer

    Thanks Mike. Your answers…

    RE: Sanders.. Even though he he calls himself an independent, he caucuses with the Democrats in the Senate and is counted as a Democrat when committee assignments are made.

    RE: “Why bother listing affiliation…” / “attacking Democratic politicians…” .. I am trying to highlight the fact that Democrats are abandoning whatever claim they once had to being the party of the First Amendment. We have come to expect the GOP to support just about all forms of content regulation, but now there seems to be little difference between the Dems and Republicans on these matters. This is very troubling to me since it means that, in essence, there will no longer be ANY free speech champions in Congress if the Dems abandon us.

    I think parties need to be singled-out on occasion when they betray core principles. Many of us here have jumped on Republicans who support Internet taxation, for example, since the GOP is suppose to be the anti-tax party.

    Finally, I’m an independent and have never voted for anyone from either party in my life. So, this is just me being an equal opportunity offender as usual!

  • Adam Thierer

    Thanks Mike. Your answers…

    RE: Sanders.. Even though he he calls himself an independent, he caucuses with the Democrats in the Senate and is counted as a Democrat when committee assignments are made.

    RE: “Why bother listing affiliation…” / “attacking Democratic politicians…” .. I am trying to highlight the fact that Democrats are abandoning whatever claim they once had to being the party of the First Amendment. We have come to expect the GOP to support just about all forms of content regulation, but now there seems to be little difference between the Dems and Republicans on these matters. This is very troubling to me since it means that, in essence, there will no longer be ANY free speech champions in Congress if the Dems abandon us.

    I think parties need to be singled-out on occasion when they betray core principles. Many of us here have jumped on Republicans who support Internet taxation, for example, since the GOP is suppose to be the anti-tax party.

    Finally, I’m an independent and have never voted for anyone from either party in my life. So, this is just me being an equal opportunity offender as usual!

  • http://mcgath.blogspot.com Gary McGath

    Opposition to free speech is particularly common among those who call themselves “progressives” rather than liberals. Woodrow Wilson is one of their heroes.

  • http://mcgath.blogspot.com Gary McGath

    Opposition to free speech is particularly common among those who call themselves “progressives” rather than liberals. Woodrow Wilson is one of their heroes.

  • http://thegreateric.com Eric

    It might be helpful to consider just why some liberals (emphasis on the some, I really think it’s a vocal minority here) are interested in resurrecting the Fairness Doctrine. It can be summarized by two words: Fox News

    Personally speaking, I look at the media landscape today and I cringe. Far from the “vibrant and diverse media marketplace” you cite, I see one filled with propaganda and talking heads. I see commentary being passed off as news, pundits as journalists, sound bytes as coverage, and outright falsehoods as truth. I see dearth of anything that resembles real information, facts, or analysis. And while Fox News is the worst offender, CNN and its other competitors are no better. The fourth estate has completely abrogated it’s responsibility to inform the public and serve as a check on government.

    The fairness doctrine is a terrible idea, but I can at least understand the motivation behind it. The “free market” isn’t going to solve this problem, since that’s largely what got us to this point – the newsroom is now expected to turn a profit, which means attracting viewers and advertisers. Which means that Michael Jackson gets hours and hours of painstaking coverage, and (for example) proposals to bring back the fairness doctrine get almost none at all. The “market” does a hideous job of selecting for what’s important and relevant.

    As I said, I don’t like the fairness doctrine, or any solution where the government dictates what’s on the airwaves. But at the same time we can’t ignore the fact that television is the 800 lb gorilla when it comes to shaping the public discourse, and the current state of television news is incredibly damaging to our republic.* That, rather than the fairness doctrine, is the real issue here.

    *For a specific example, see the 2004 election. More than half of the people who went to the polls on that day did so with the belief that WMD’s had been found in Iraq; around 40% believed Saddam had a hand in 9/11 – both demonstrably untrue as a factual matter. That’s not something that’s supposed to happen in a country with a free press.

  • http://thegreateric.com Eric

    It might be helpful to consider just why some liberals (emphasis on the some, I really think it’s a vocal minority here) are interested in resurrecting the Fairness Doctrine. It can be summarized by two words: Fox News

    Personally speaking, I look at the media landscape today and I cringe. Far from the “vibrant and diverse media marketplace” you cite, I see one filled with propaganda and talking heads. I see commentary being passed off as news, pundits as journalists, sound bytes as coverage, and outright falsehoods as truth. I see dearth of anything that resembles real information, facts, or analysis. And while Fox News is the worst offender, CNN and its other competitors are no better. The fourth estate has completely abrogated it’s responsibility to inform the public and serve as a check on government.

    The fairness doctrine is a terrible idea, but I can at least understand the motivation behind it. The “free market” isn’t going to solve this problem, since that’s largely what got us to this point – the newsroom is now expected to turn a profit, which means attracting viewers and advertisers. Which means that Michael Jackson gets hours and hours of painstaking coverage, and (for example) proposals to bring back the fairness doctrine get almost none at all. The “market” does a hideous job of selecting for what’s important and relevant.

    As I said, I don’t like the fairness doctrine, or any solution where the government dictates what’s on the airwaves. But at the same time we can’t ignore the fact that television is the 800 lb gorilla when it comes to shaping the public discourse, and the current state of television news is incredibly damaging to our republic.* That, rather than the fairness doctrine, is the real issue here.

    *For a specific example, see the 2004 election. More than half of the people who went to the polls on that day did so with the belief that WMD’s had been found in Iraq; around 40% believed Saddam had a hand in 9/11 – both demonstrably untrue as a factual matter. That’s not something that’s supposed to happen in a country with a free press.

  • http://www.mplampla.gr/blog/?w=poiu Henry
  • http://www.mplampla.gr/blog/?w=poiu Henry

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