Does the Fairness Doctrine Still Roar?

America continues to face obstacles to free speech touted in the name of the “public interest.” While well-intentioned by some, the encouragement of paternalistic government intervention in the broadcast of news and other media threatens the same repressive consequences as the now defunct Fairness Doctrine.

A recent conference, “Does the Red Lion Still Roar?,” debated the ongoing legacy and relevance of the 1969 Supreme Court case Red Lion Broadcasting Corporation v. Federal Communications Commission (FCC). The unanimous court ruling upheld the FCC’s authority to impose “equal time” and “response to personal attack” provisions under the Fairness Doctrine because the free speech of viewers outweighs the free speech of broadcasters. It also upheld the FCC’s imposition of these additional requirements as in continuity with the Congressional legislation, denying that the requirements were either vague or unfairly imposed.

“We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable…but will deal with those problems if and when they arise,” concluded Justice Byron White for the court majority opinion. In the 1970’s, Justice White also supported forced busing as a remedy for segregation.

Of the 19 speakers at the American University Washington College of Law conference, only three criticized Red Lion’s court decision—and several supported the expansion of government regulation into the internet.

Only one speaker condemned the other panelists for supporting increased government regulation and intrusion within the industry. “Would you rather have the government decide for you what they think is suitable, which was the language of Red Lion?,” asked Helgi C. Walker, a lawyer at Wiley Rein LLP. “The first amendment is about individual liberty and it’s not about government paternalism and I don’t know why [if] in so many contexts you would want to uphold individual liberty, in almost every other…context, and why here it can all be different,” she said.

She pointed out that Justice White had a history of deciding in favor of the state, essentially watering down the First Amendment. “Justice White was no promoter of the First Amendment….He was pretty much a statist. Justice White referred over and over again in his decisions, government regulation of all kinds of things in America,” she said.

A keynote speaker at the conference, Professor Cass R. Sunstein of the University of Chicago told the audience that he thought citizens’ current fad for personally-tailored information, the “Daily Me,” was inimical to the First Amendment. “I want to bring those ideas, those values, those Red Lion, Madisonian values in great tension with…the ability to create an informational or communications universe of your own choosing, sometimes described as the “Daily Me,” where the idea is that each of us can construct…a political universe which is limited to topics and ideas that please or interest us,” he said. “That I’m saying is a problem from the standpoint of the first amendment, not a solution, and Red Lion points the way toward recognizing why exactly it’s a problem.”

American’s self-sorting, he argues, unnecessarily polarizes the political debate and undermines levels of social trust.

Professor Sunstein based these assertions on the results of two studies documenting group polarization among like-minded individuals. The rare “discovery” of this research is that grouping together people who believe similar things (i.e., conservatives and liberals) will produce a group consensus more radical than if the individuals had been interviewed prior to such contact. Or, as Sunstein put it “the self-sorting into like-minded groups squelched internal diversity.”

He argues, “The third thing the public forum doctrine does, I think, is the most interesting, which is that it imposes on each of us not exactly a legal responsibility but something like a civic responsibility to see our fellow citizens when they’re disturbed or suffering and different from us, even if we would in our desire for comfort and peace want, before the fact, not to have to be exposed to that.” In this space, Americans would be introduced to “offensive” or “uninteresting” news for their own good, he argues.

The second part of this article can be viewed here.

Bethany Stotts is a Staff Writer at Accuracy in Academia.

Bethany Stotts