Power Grab

Since the election of Barack Obama to the presidency, some Democratic members of Congress have ramped up the rhetoric on reinstitution of the Fairness Doctrine. The Fairness Doctrine was a Federal Communications Commission (FCC) regulation in place from 1949 to 1987 that ―required broadcasters to identify issues of public importance, decide to cover those issues, and then to afford the best representatives of the opposing views on the issue the opportunity to present their case to the community.‖1 Ironically, they say that a fairness standard is needed to counter the influence of conservative talk radio on the American people and to bring ―accountability and standards‖2 to the airwaves. Yet despite conservative talk radio dominance, Democrats swept the 2008 elections and now hold the presidency and a majority in both houses of Congress. But is the return of the Fairness Doctrine even a remote possibility? At least one liberal blogger has insisted that conservatives need not worry about reinstitution of the Fairness Doctrine because ―[t]here's no bill to reinstate it in Congress, no public interest advocates are campaigning for it, and the netroots aren't interested.‖3 Besides, he writes, the senators talking about it are not likely to bring a bill from their posts on the agriculture and banking committees.4 However, Senator John Kerry of Massachusetts has been picked to chair the new Communications and Technology Subcommittee under the Senate Commerce Committee, and he is on record in favor some reincarnation of the Fairness Doctrine.5 Adding to the apprehension, President Obama says that he opposes bringing back the 1

Kathleen Anne Ruane, Fairness Doctrine: History and Constitutional Issues, 1, Congressional Research Service (2009). 2 Michael Calderone, Sen. Stabenow Wants Hearings on Radio “Accountability”; Talks Fairness Doctrine, POLITICO.COM, Feb. 5, 2009 (quoting Senator Debbie Stabenow, a senator from Michigan, whose husband, Tom Athans is a liberal talk radio executive). 3 Craig Aaron, The Fairness Doctrine: Just Say No, HUFFINGTONPOST.COM, Feb. 13, 2009. 4 Id. 5 John Eggerton, Kerry Named To Head New Communications & Tech Subcommittee, BROADCASTING & CABLE, Feb. 12, 2009, http://www.broadcastingcable.com/article/174073-Kerry_Named_To_Head_New_Communications_ Tech_Subcommittee.php. Kerry has called the demise of the Fairness Doctrine ―one of the ‗most profound changes in the balance of the media,‘ in a 2007 radio interview, adding that conservatives have been able to ‗squeeze down and squeeze out opinion of opposing views. I think it has been a very important transition in the imbalance of our public dialog.‘‖

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Fairness Doctrine, but that he does support ―media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets.‖6 Accordingly, a fear of some new fairness standard is not at all unfounded. But why do conservatives oppose it? After all, Americans value diversity of thought and the principle that everyone is entitled to his or her opinion. Why should there not be a standard in place to ensure a level playing field in the marketplace of ideas? Times have changed, say the doctrine‘s opponents, and we should let the market decide, and protect the free speech rights of the radio hosts and radio station owners. Among the most outspoken of the opponents are the conservative talk radio hosts themselves, most notably Rush Limbaugh. Limbaugh‘s long career in syndication began in 1988, the year after the Fairness Doctrine was abolished.7 Limbaugh argues that the Fairness Doctrine would only cause station managers to dump any political debate programming in response to ―a bunch of liberals demanding that they get some time on the radio to respond to whatever . . . conservative hosts are saying.‖8 Limbaugh says that ―management just wouldn't put up with [it]. . . . they [would] just shut it down.‖9 Such a limitation, says Limbaugh, is a violation of his and station management‘s First Amendment right of free speech.10 Also weighing in conservatives‘ favor is that with the technological advances of the late twentieth century, i.e., the Internet and satellite TV and radio, the wide availability of opposing 6

John Eggerton, Obama Does Not Support Return of Fairness Doctrine, Broadcasting & Cable, June 25, 2008, http://www.broadcastingcable.com/article/114322-Obama_Does_Not_Support_Return_of_Fairness_Doctrine.php 7 Anthony L. Green, Limbaugh, Rush, ENCYCLOPÆDIA BRITANNICA (2009), Encyclopædia Britannica Online, Feb. 16 2009. Pundits still debate whether the proliferation of conservative talk radio was due to the Fairness Doctrine‘s repeal, but there exists at least a correlation. 8 Rush Limbaugh, The Fairness Doctrine Will Just Be the Tip of the Iceberg, ¶ 2, The Rush Limbaugh Show, June 25, 2008, http://www.rushlimbaugh.com/home/daily/site_062508/content/01125112.member.html. 9 Id. 10 Rush Limbaugh, The Show US Presidents--Then and Now--Don't Want You to Hear, ¶ 3, The Rush Limbaugh Show, Feb. 13, 2009, http://www.rushlimbaugh.com/home/daily/site_021309/content/01125109.member.html (―Has this nerd never heard of the First Amendment? . . . Enforced media accountability is not permitted by the US Constitution.‖).

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viewpoints through various and extensive media renders the Fairness Doctrine unnecessary. This was the argument adopted by the FCC in 1987 when it abolished the Fairness Doctrine. The FCC ―reasoned that increased competition in the marketplace, First Amendment concerns, and evidence that the Fairness Doctrine actually chilled speech rather than facilitating it justified abandoning the policy.‖11 The argument holds true today. Renewal of the Fairness Doctrine or implementation of its effectual equivalent in the new technological age is an unnecessary and unconstitutional burden on purveyors of conservative political speech. Its reinstitution would be a shameful abandonment of free market and free speech principles. The first section of this paper examines the history of the Fairness Doctrine, followed by a discussion of the recent calls for its revival. The next section summarizes today‘s talk radio market—largely dominated by conservative commentators, with a sprinkling of liberals. Finally, constitutional concerns with the Fairness doctrine are discussed in light of twenty-first century technology and media realities. This paper covers the Fairness Doctrine only as it relates to talk radio, and not as it relates to any other medium. It touches on questions concerning media ownership, but only as much as its regulation amounts to a back-door Fairness Doctrine. Fairness Doctrine Past and Present Former Life In the 1930‘s radio was the only broadcast medium, and the scarcity of airwaves caused Congress to set up a licensing scheme for those wishing to broadcast over them, so as to avoid interference from broadcasters competing for the same frequency.12 The Communications Act of 1934 required that the FCC grant broadcast licenses only ―if public convenience, interest, or

11 12

Id. Ruane, supra note 1, at 1.

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necessity [would] be served.‖13 This ―public interest‖ standard was adopted by Congress, who felt that the scarcity of radio frequencies necessarily meant that some of those who wished to broadcast could not.14 Thus, a mechanism had to be put in place to ensure that content that was controlled by a limited number of licensees on the scarce airwaves served the public interest.15 In the early 1940‘s the FCC used its authority to place an outright ban on editorializing by broadcasters, a ban known as the Mayflower Doctrine.16 By the end of the decade, however, the ban had softened somewhat, allowing editorial content as long as differing points of view were aired.17 Then in 1949, the FCC issued a report entitled, ―In the Matter of Editorializing by Broadcast Licensees.‖18 The report concluded that broadcast licensees have an ―affirmative responsibility . . . to provide a reasonable amount of time for the presentation over their facilities‖ for discussion of public issues, and that ―public interest requires that the licensee must operate on basis of overall fairness, making his facilities available for the expression of the contrasting views . . . on the various issues which arise.‖19 Thus, the Fairness Doctrine, as it became known, had two requirements: (1) that every licensee devote a reasonable portion of broadcast time to the discussion and consideration of controversial issues of public importance; and (2) that in doing so, [the broadcaster must be] fair – that is, [the broadcaster] must affirmatively endeavor to make . . . facilities available for the expression of contrasting viewpoints held by responsible elements with respect to the controversial issues presented.20

13

47 U.S.C. § 307 (1934). Ruane, supra note 1, at 1-2. 15 Id. 16 Vale E. Limburg, Fairness Doctrine, ¶ 3, THE MUSEUM OF BROADCAST COMMUNICATIONS, Accessed Jan. 28, 2009, http://www.museum.tv/archives/etv/F/htmlF/ fairnessdoct/fairnessdoct.htm. 17 Id. 18 13 FCC Rept. 1246 (1949). 19 Id. at 1249-50. 20 Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10426 (1964). 14

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In 1971, the FCC required an ―Ascertainment of Community Needs‖ report to accompany each licensee‘s broadcast license renewal application.21 This report was to detail the licensee‘s ―efforts to seek out and address issues of concern to the community.‖22 The Commission had already instituted requirements regarding personal attacks and political editorializing.23 The personal attack rule required broadcast licensees to notify, within one week, the subject of a personal attack made on their stations, provide the subject with a copy of the broadcast, and give the subject a chance to respond over the air.24 The political editorial rule required broadcasters to give a political candidate time to respond to the broadcaster‘s endorsement of the opposing candidate.25 These two rules gave rise to a case that found its way to the United States Supreme Court and became the most famous of Fairness Doctrine cases. In 1964, the Reverend Billy James Hargis presented a 15-minute broadcast on WGCB, a radio station in Pennsylvania.26 During the broadcast, Hargis discussed an author, Fred J. Cook who wrote a book entitled, Goldwater—Extremist on the Right.27 Hargis said that Cook was fired from the New York World Telegram after making a false charge on television of a New York City government official; that a Newsweek article had shown that Cook and a friend had made up the charge and confessed to it; that Cook then went to work for a left-wing magazine that ―has championed many communist causes over many years‖; that Cook wrote an article for the

21

Limburg, supra note 19, at ¶ 4. Id. 23 Ruane, supra note 1, at 1-2. 24 Id. at 2-3. 25 Id. at 3. 26 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 371 (U.S. 1969). The broadcast was part of the Reverend‘s ―Christian Crusade‖ series. 27 Id. 22

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magazine that ―absolve[d] Alger Hiss of any wrong doing‖; and that Cook wrote a book attacking J. Edgar Hoover and the CIA.28 Cook heard of the personal attack and contacted the station to request free time to reply, which was refused.29 The FCC then concluded that Hargis‘ words constituted a personal attack on Cook, and that Red Lion Broadcasting Company (Red Lion) had failed to send Cook a copy of the broadcast and offer him reply time as required by the Fairness Doctrine.30 The FCC ordered Red Lion to give Cook free air time to reply.31 The Court of Appeals for the District of Columbia sided with the FCC, holding its actions were proper and constitutional.32 In light of the Red Lion litigation, the FCC moved to clarify the personal attack rule and enhance its enforceability, and further clarify the political editorial rule.33 The Seventh Circuit held the provisions in the rules unconstitutional, as they violated the freedoms of speech and of the press.34 The Unites States Supreme Court, however, reversed the decision of the Seventh Circuit, because the Fairness Doctrine‘s rules actually ―enhance rather than abridge the freedoms of speech and press . . . .‖35 First, the Court held that Congress granted the FCC specific authority to protect the public interest when granting broadcast licenses, and that the Fairness Doctrine was a legitimate means to that end.36 The legislation granting that authority, the Court said, relies mainly on the scarcity theory of public airwaves—that is, that ―broadcast frequencies are limited and, therefore,

28

Id. at 373, n. 2. Id. at 372. 30 Id. 31 Id. 32 Id. at 373. 33 Id. 34 Id. 35 Id. at 375. 36 Id. at 385. 29

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they have been necessarily considered a public trust.‖37 Next, in holding that the fairness doctrine did not abridge Red Lion‘s First Amendment rights, the Court adopted the scarcity theory: Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.38 In this respect, the Court takes a collective and paternalistic view of the First Amendment, rather than focusing on Reverend Hargis‘ and Red Lion‘s individual free speech rights. The Court here values the listeners‘ right to hear above Red Lion‘s right to speak, especially when the medium used by Red Lion is technically not available to all. The Fairness Doctrine had cleared its first constitutional hurdle, but Red Lion would not be the final say. In the years that followed, journalists and broadcasters became increasingly uneasy with the Fairness Doctrine and what they saw as its restrictions on the freedom of speech and of the press.39 Many journalists, who felt that the First Amendment allowed them the right to balance their stories as they saw fit, declined to seek out all viewpoints on every issue, opting instead to avoid controversial issues altogether.40 This ―chilling effect‖ was exactly the opposite of what the FCC had intended its Fairness Doctrine to do. Finding and giving voice to every viewpoint became such a burden to broadcasters that they avoided issues to avoid requirements of the fairness doctrine—a view, however, that Dr. Philip M. Napoli of Fordham University says was formed from mainly anecdotal evidence.41

37

Id. at 383 Id. at 390. 39 Limburg, supra note 19, at ¶ 7. 40 Id. 41 Bethany Stotts, Fairness Doctrine Unfairly Promoted, ACCURACY IN MEDIA, May 1, 2008, http://www.aim.org/ aim-column/fairness-doctrine-unfairly-promoted. 38

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In the 1980‘s the underlying rationales for the need for the Fairness Doctrine became increasingly suspect. The Fairness Doctrine came under further attack when Ronald Reagan appointed Mark Fowler—who vowed to kill the fairness doctrine—as FCC chairman.42 In a 1984 case holding that banning public broadcasters from editorializing was unconstitutional, the Supreme Court declined to hold the Fairness Doctrine unconstitutional.43 However, the Court also stated that perhaps it would reconsider if given a ―signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.‖44 In 1985 the FCC issued a report that questioned the need for and constitutionality of the Fairness Doctrine.45 The report concluded that (1) ―the fairness doctrine no longer serve[d] the public interest‖; (2) the development of new media from which to gather information made ―unnecessary any governmentally imposed obligation to provide balanced coverage of controversial issues of public importance,‖ and; (3) that the fairness doctrine had actually chilled broadcasters‘ speech, rather than encourage civic dialogue as the doctrine was intended to do.46 For these reasons, the report stated, the FCC ―questioned the permissibility of the doctrine as a matter of both policy and constitutional law.47 Instead of repealing the Fairness Doctrine at this point, however, the FCC deferred to Congress, which had before it proposed legislation to abolish the doctrine.48 There was also some question of whether the FCC even had authority to abolish it. The report could not determine whether Section 315 of the Communications Act, as amended, had codified the Fairness

42

Limburg, supra note 19, at ¶ 8. FCC v. League of Women Voters, 468 U.S. 364 (1984). 44 Id. at 376, n. 11. 45 General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985). 46 Id. at 35453. 47 Id. 48 Id. 43

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Doctrine, and therefore mandated its continuation.49 A subsequent D.C. Circuit opinion helped clear that up. In affirming the FCC‘s decision not to extend the Fairness doctrine to a new technology called teletext, the court held that language in the 1959 amendment to the Communications Act that referred to the Fairness Doctrine had not codified the Fairness Doctrine.50 ―[R]ather,‖ said the court, it ratified the Commission's longstanding position that the public interest standard authorizes the fairness doctrine. The language, by its plain import, neither creates nor imposes any obligation, but seeks to make it clear that the statutory amendment does not affect the fairness doctrine obligation as the Commission had previously applied it. The words employed by Congress also demonstrate that the obligation recognized and preserved was an administrative construction, not a binding statutory directive. Congress described the obligation to which it addressed its admonition as one imposed under the Act, not by the Act.51 This holding left the door wide open for the FCC to abolish the Fairness Doctrine, as it was now clear that it was a discretionary administrative policy, and not codified law. Following this case, and at Congress‘ direction, the FCC sought public comments for alternatives to the Fairness Doctrine in 1987.52 The FCC rejected all of the proposals, including ―abandoning a case-by-case enforcement approach, replacing the doctrine with open access time for all members of the public, [and] doing away with the personal attack rule.‖53 Later in the year, a case decided by the Commission provided the arena for the Fairness Doctrine‘s repeal. 49

Id. Telecommunications Research & Action Center v. FCC, 801 F.2d 501, 517 (D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987). The language of the Act in question reads: 50

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed on them under this Act to operate in the public interest and to afford reasonable opportunity for the presentation of conflicting views on issues of public importance. 51

Id. at 517-18 (internal quotes and citations omitted; emphasis in the original). Ruane, supra note 1, at 7. 53 Id. 52

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The dispute had already been heard by the FCC and appealed to the D.C. Circuit54, who remanded the matter to the FCC—who would now reexamine it in light of the same court‘s holding that the Fairness Doctrine had not been codified into law, and therefore not a doctrine the FCC is statutorily bound to enforce. The case arose out of a television station‘s (WTVH, Syracuse) broadcast of several editorial commercials in support of building a new nuclear power plant in the area of Syracuse, New York.55 The FCC originally found that the construction of a nuclear plant was a controversial public issue, and that WTVH had failed to broadcast opposing views on the plant, as required by the Fairness Doctrine.56 WTVH argued, among other things, that the Fairness Doctrine, as applied to its situation and circumstances in the Syracuse area, was unconstitutional, as the numerous media outlets in the area informing the public undermined the Red Lion scarcity rationale.57 The FCC had originally punted on the question of the Fairness Doctrine‘s constitutionality because it felt that ―the question of its repeal or its constitutionality is best left to Congress and the courts.‖58 But now, with pressure from the court to decide—not to mention a FCC chairman who admittedly wanted to repeal the Fairness doctrine—it was time for the FCC to decide. And decide they did. The FCC believed that the technological advances up to that point had rendered the scarcity rationale of Red Lion obsolete.59 The Commission further believed that its 1985 report (see note 45 above) provided the Supreme Court with the ―signal‖ contemplated in Red Lion: ―The Commission found in recent years that there had been an explosive growth in both the 54

Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987). The court remanded the case to the FCC, who it determined had been ―arbitrary and capricious‖ by not considering Meredith‘s constitutional rights. 55 In re Complaint of Syracuse Peace Council against Television Station WTVH Syracuse, New York, 2 FCC Rcd 5043, 5044 (1987). 56 Id. 57 Id. 58 Id. 59 Id. at 5053.

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number and types of outlets providing information to the public. Hence, the Supreme Court's apparent concern that listeners and viewers have access to diverse sources of information has now been allayed.‖60 ―Moreover,‖ said the Commission, [w]hile the objective underlying the fairness doctrine is that of the First Amendment itself—the promotion of debate on important controversial issues— the means employed to achieve this objective, government coercion, is the very one which the First Amendment is designed to prevent. As the Supreme Court has noted, ―By protecting those who wish to enter the marketplace of ideas from governmental attack, the First Amendment protects the public's interest in receiving information.‖ Yet the fairness doctrine uses government intervention in order to foster diversity of viewpoints, while the scheme established by the framers of our Constitution forbids government intervention for fear that it will stifle robust debate. In this sense, the underlying rationale of the fairness doctrine turns the First Amendment on its head.61 The opinion also expressed uneasiness about the Fairness Doctrine‘s chilling effect, and its interference with broadcasters‘ ―journalistic freedom,‖ calling it ―a regulation which directly affects the content of speech.‖62 Thus, the intermediate scrutiny employed in the Red Lion case cannot be reconciled with the Fairness Doctrine and its direct aim at the content of speech, which in any other case would be subject to strict scrutiny, especially if aimed at print media.63 In a rather poignant passage, the FCC stated that each of its members had taken an oath to uphold the United States Constitution, and that it could not in good faith enforce a policy that it believed to violate that Constitution.64 With that, the FCC found that, because the Fairness Doctrine chilled speech and did not even meet intermediate scrutiny—that is, was not narrowly tailored to meet a substantial government interest—the Fairness Doctrine ―contravene[d] the First Amendment and thereby disserve[d] the public interest.‖65

60

Id. Id. at 5056. 62 Id. at 5044. 63 Id. at 5056. 64 Id. at 5057-58. 65 Id. 61

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The Fairness Doctrine had been abolished by the FCC, but that did not stop Congress from trying to save it—even before the decision to abolish it was made.66 However, President Reagan vetoed a bill that had been passed in the spring of 1987 that would have mandated FCC enforcement of the Fairness Doctrine.67 ―This doctrine,‖ Reagan said, . . . requires Federal officials to supervise the editorial practices of broadcasters in an effort to ensure that they provide coverage of controversial issues and a reasonable opportunity for the airing of contrasting viewpoints of those issues. This type of content-based regulation by the Federal Government is . . . antagonistic to the freedom of expression guaranteed by the First Amendment. . . . History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.68 Congress again tried to codify the fairness doctrine during the administration of George H. W. Bush, but he too vetoed it.69 Reincarnation While the Fairness Doctrine originally applied to all broadcast outlets—radio and television—recent calls for reinstitution of it have centered mainly on talk radio. The left, admittedly dismayed at the success and influence of conservative commentators like Rush Limbaugh, Sean Hannity, and Glenn Beck, to name a few, have periodically popped their heads up in favor of a new Fairness Doctrine. For example, in an interview with a St. Louis radio station in 1994, then-President Bill Clinton said, ―After I get off the radio today with you, Rush Limbaugh will have three hours to say whatever he wants, and I won't have any opportunity to respond. And there's no truth

66

Doubtless, members of Congress could read the writing on the wall, and they knew that the FCC chairman probably thought the Fairness Doctrine was unconstitutional and would try to get rid of it. Thus, ―preemptive‖ legislation could mandate enforcement of the policy by the FCC. 67 Limburg, supra note 19, at ¶ 10. 68 Ronald Reagan, quoted by Rush Limbaugh, Mr. President, Keep the Airwaves Free, WALL STREET JOURNAL, Feb. 20, 2009, http://online.wsj.com/article/SB123508978035028163.html. 69 Limburg, supra note 19, at ¶ 10.

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detector. You won't get on afterwards and say what was true and what wasn't.‖70 Members of Congress have also recently weighed in on reinstitution of the Fairness Doctrine. House Speaker Nancy Pelosi answered in the affirmative when asked point blank in June of 2008 if she favored the return of the Fairness Doctrine.71 Senator Schumer, a Democrat from New York even likened the regulation of talk radio to that of pornography when he called for some sort of talk radio regulation in November of 2008.72 Schumer said that it is ―inconsistent‖ to allow the government to regulate speech in one area, but forbid its intervention in another.73 Senators Debbie Stabenow from Michigan and Tom Harkin from Iowa recently logged separate appearances on a liberal radio show to agree with the host that some standard of fairness should be brought back.74 The host, Bill Press, even went so far as to call today‘s talk radio ―an exclusive, tightly held, conservative media conspiracy.‖75 Harkin had already said in 2007 that ―[i]t‘s time to reinstitute the Fairness Doctrine. I have this old-fashioned attitude that when Americans hear both sides of the story, they‘re in a better position to make a decision.‖76 Pelosi, Schumer, Harkin, and Stabenow still cling to the hope of bringing the Fairness Doctrine back, even after failed attempts to bring it back just a few years ago. In 2005 two Democratic representatives brought two separate bills that essentially would have codified the

70

Rush Limbaugh, supra note 13, at ¶ 10. John Gizzi, Pelosi Supports “Fairness Doctrine”, HumanEvents.com, June 25, 2008, http://www.humanevents.com/article.php?id=27185. 72 Bob Cusack, Schumer on Fox: Fairness Doctrine “Fair and Balanced”, THEHILL.COM, Nov. 4, 2008, http://thehill.com/leading-the-news/schumer-defends-fairness-doctrine-as-fair-and-balanced-2008-11-04.html. 73 Id. Schumer may not recognize that the Supreme Court has held that political speech is afforded greater protection than sexually explicit speech. R. A. V. v. St. Paul, 505 U.S. 377, 422 (U.S. 1992). 74 Id.; Calderone, Sen. Harkin: „We need the Fairness Doctrine back‟, POLITICO.COM, Feb. 11, 2009. 75 Bill Press, Another Right-Wing Conspiracy in Washington?, WASHINGTON POST, p. B8, Feb. 8, 2009. Press hosts his own liberal talk radio show, The Bill Press Show. 76 Id. 71

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Fairness Doctrine.77 They both failed, but the Democrats have since taken back control of the House and the Senate. Bill Clinton got in on the act again in 2009, saying that, because ―there's always been a lot of big money to support the right wing talk shows,‖ there needs to be ―more balance in the programs or have some opportunity for people to offer countervailing opinions.‖ So it would seem that Clinton wants at least the Fairness Doctrine, but when he says he might want more balance ―in the programs‖ he is aiming at even stricter requirements, as the Fairness Doctrine never required radio programs to be internally balanced. He also appears to espouse Bill Press‘ idea that ―big money‖ is somehow artificially propping up the conservative talk show market. That fallacy will be discussed in a later section. Feeling the urgency of the threat, Rep. Mike Pence, a Republican from Indiana, introduced a bill in 2007 that would have prohibited the return of the Fairness Doctrine,78 but Speaker Pelosi would not allow a vote on the matter.79 In early 2009, after the Democrats swept the November elections, Pence reintroduced his bill—called The Broadcaster Freedom Act—and 177 co-sponsors signed on.80 Senator Jim Demint of South Carolina proposed the Act as an Amendment to the D.C. Voting Rights Act, and it passed, 87-11.81 However, the Senate approved Senator Durbin‘s amendment to the same bill, 57-41.82 Durbin‘s amendment, if signed into law, would require the FCC to ―take actions to encourage and promote diversity in 77

See H.R. Res. 501, 109th Cong. (2005); H.R. Res. 3302 (2005). H.R. Res. 2905, 110th Cong. (2007). The bill was actually an amendment to an unrelated bill. Republican Senators Thune and Coleman sponsored the bill in the Senate. S. Res. 1742, 110 th Cong. (2007); S. Res. 1748, 110th Cong. (2007). 79 Gizzi, supra note 74. 80 FOXNews.com, Despite Signs of Revival, Critics Call “Fairness Doctrine” Outdated Swipe at Modern Market, Feb. 19, 2009, http://www.foxnews.com/politics/first100days/2009/02/19/despite-talk-fairness-doctrine-critics-say/. 81 Trish Turner, Brian Wilson, Senate Backs Amendment to Prevent “Fairness Doctrine” Revival, FOXNews.com, February 26, 2009, http://www.foxnews.com/politics/2009/02/26/demint-tries-prevent-fairness-doctrine-revival/. The D.C. Voting Rights Act, which would give a seat in the House of Representatives to residents of the District of Columbia, is seen by many as unconstitutional, because the District is not a state. 82 Id. 78

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communication media ownership and to ensure that broadcast station licenses are used in the public interest.‖83 The amendment is similar to language in a report written by John Podesta, who led the Obama presidential transition team.84 The report concludes that efforts to ―encourage more responsive and balanced radio programming‖ require increased local control over and diversified ownership of radio stations, which can be accomplished by restoring ―local and national caps on the ownership of commercial radio stations,‖ ensuring ―local accountability over radio licensing,‖ and requiring ―commercial owners who fail to abide by enforceable public interest obligations to pay a fee to support public broadcasting.‖85 President Obama has weighed in on the controversy, and his view on the matter is virtually identical to Podesta‘s. While running for president, Obama declared that he was against reinstating the Fairness Doctrine, but that he was for media-ownership caps . . . as well as increasing minority ownership of broadcasting and print outlets.‖86 The short version of recent history relating to the Fairness Doctrine is that some Democrats favor reinstating it as a means to promote fairness and balance, and to foster discussion of all sides of political issues, while conservatives view talk of the Fairness Doctrine and other ―balancing‖ FCC measures (i.e., ownership caps and required diversity of ownership) as a direct attack on conservatives‘ free speech rights and on free market principles. While highly unlikely that the actual Fairness Doctrine will ever be reinstated, the talk of the Obama Administration clearly points to a new standard that regulates content through greater government control over media ownership. Conservatives view the Fairness Doctrine, or, in this 83

Newsmax.com, Pelosi Backs Talk Radio Regulations, March 8, 2009, http://www.newsmax.com/ headlines/pelosi_durbin_amendment/2009/03/08/189685.html. 84 Id. John Podesta founded the Center for American Progress, a liberal think tank. He was also President Bill Clinton‘s Chief of Staff from 1998 to 2001. 85 Id. Coincidentally, public broadcasting, especially radio network NPR, is traditionally held to be on the left side of the political spectrum. 86 Eggerton, supra note 8.

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case, an alternate means to secure the same result, as little more than a thinly veiled attempt to silence critics of the liberal agenda through government control of private industry and violations of First Amendment rights. Ownership Regulation, Economics and the Law To conservatives, President Obama‘s position on media ownership caps and diversity requirements sound a lot like government meddling in the content of talk radio, because it (1) diminishes the market‘s role in determining ownership, and; (2) gets the government involved in encouraging traditionally left-leaning groups (minorities) to control broadcast outlets. More recently, and since he has taken the Oath of Office, Obama has reaffirmed his opposition to the Fairness Doctrine,87 but, again, this does not necessarily mean that he does not oppose the Doctrine‘s effects. It simply means that he opposes the FCC re-imposing the standard as it existed before its repeal, while encouraging a sort of back-door Fairness Doctrine. ―Back-door‖ because, while not a direct requirement of balance, any FCC standard that imposes caps on radio ownership and more diverse ownership of stations necessarily requires a scaling back of current ownership, which ownership is responsible for the current conservative talk radio content. Liberal radio host Ed Schultz, who buys into Bill Press and Bill Clinton‘s big money conspiracy theory, may have summed up this ―back-door‖ idea better than anyone: The fact is, you can, uh, get Rush Limbaugh on 600 stations across the country and let's tell it like it is, the company that owns those stations own[s] his program and the company that syndicates his show. And Limbaugh is nervous as hell that if Obama were to ever push forward with the FCC to break up major ownership groups in this country and diversify the ownership amongst the little guy and have

87

FOXNews.com, White House: Obama Opposes “Fairness Doctrine” Revival, Feb. 18, 2009, http://www.foxnews.com/politics/first100days/2009/02/18/white-house-opposes-fairness-doctrine/. To Rush Limbaugh, the timing of this official announcement was somewhat suspect, as he had just submitted an op-ed to the Wall Street Journal to be published the next day, in which Limbaugh called for Obama to take a position on the Fairness Doctrine. See Rush Limbaugh, Did Obama Preempt Rush Op-Ed?, The Rush Limbaugh Show, Feb. 18, 2009, http://www.rushlimbaugh.com/home/daily/site_021809/content/01125113.member.html.

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some ownership rule restrictions in major markets, it would be a little bit different world for Limbaugh. He wouldn't be on 600 [stations].88 So it would seem that, even by a liberal radio host‘s account, ownership rules would have the same content-based ―balancing‖ effect of the Fairness Doctrine. The argument against a renewed Fairness Doctrine or its back-door twin, media ownership caps, is twofold: First, talk radio is a market, and its participants are interested in making money. Simply put, what consumers want, consumers will get, and the government should interfere as little as possible. As it turns out, conservative ideas attract the most listeners, as the raw data clearly shows, which brings in the most advertising money. For whatever reason, the platform‘s position in the larger media market is a more favorable setting for conservative thought, which brings high ratings from a unique, conservative and radio-oriented demographic. The first section of the analysis demonstrates that nothing more than market forces are at work, and that these that market forces regulate much more fairly and effectively than could the federal government. Second, the Fairness Doctrine and the effectually equivalent media ownership caps and diversity requirements are blatantly unconstitutional in an age of ubiquitous, overlapping and integrated media. With the invalidation of the scarcity rationale, the First Amendment‘s guarantee of free speech demands the strictest of scrutiny of regulations on political speech in talk radio. Neither the Fairness Doctrine, nor ownership caps can survive such scrutiny, leaving the market to decide what will be on the radio.

88

Ed Schultz, as quoted in Jack Coleman, Ed Schultz Unintentionally Bolsters Limbaugh's Case Against Fairness Doctrine, NEWSBUSTERS, February 24, 2009, http://newsbusters.org/blogs/jack-coleman/2009/02/24/ed-schultzunintentionally-bolsters-limbaughs-case-against-fairness-do.

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Marketability: Conservative Versus Liberal Conservatives dominate talk radio. As of November 2008, Rush Limbaugh‘s audience averaged over 14 million listeners, and conservatives Sean Hannity (13.2 million), Michael Savage (8.2 million), and Glenn Beck (6.7 million) round out the top four (for purposes of this paper, the conservative side will be represented by Limbaugh, Hannity, and Beck).89 Relegated to the eleventh spot in the talk radio ratings race is the left‘s closest competitor, Ed Schultz, who draws about 3 million listeners a week.90 Schultz‘s comments, quoted earlier, suggest that he believes that something more sinister than market forces is going on when it comes to conservative talk dominance. He refers to the fact that Limbaugh‘s program is distributed by Premiere Radio Networks, a division of Clear Channel Communications91, which owns nearly 1200 stations (as of 2005)92 and operates more than 800 stations nationwide.93 To conservatives, this is no more than a free market success story. But to Schultz and supporters of a new Fairness Doctrine (or something like it), this is an agenda-driven monopoly. It is true that the same Premiere Radio Networks distributes both Sean Hannity‘s and Glenn Beck‘s programs.94 But the fact of the matter is that none of these shows would be on the air without bringing in advertising revenue by way of good ratings. A show can be forced on 89

Michael W. Chapman, Democratic Senator Schumer Defends Fairness Doctrine to Regulate Talk-Radio Speech, CNSNEWS.COM, November 4, 2008, http://www.cnsnews.com/public/Content/Article.aspx?rsrcid=38785. Dr. Laura Schlesinger has as many listeners as Michael Savage, but her show focuses mainly on moral and ethical family and relationship issues, rather than political issues. Glenn Beck, listed as fourth, regularly refers to his show as the ―third most listened to radio show in America,‖ so his own numbers may suggest higher ratings than cited by this paper. 90 Id. 91 Coleman, supra note 89. Schultz said that he managed a station owned by Clear Channel, the parent company of the distributor of Limbaugh‘s program, so he knows that Clear Channel ―forces [his] program on stations.‖ 92 The Project for Excellence in Journalism, Ownership, accessed Mar. 9, 2009, http://www.stateofthenewsmedia.org/2007/narrative_radio_ownership.asp?cat=4&media=9. 93 ClearChannel.com, Clear Channel Radio Fact Sheet, accessed Mar. 9, 2009, http://www.clearchannel.com/ Radio/PressRelease.aspx?PressReleaseID=1563&p=hidden. 94 Hannity.com, Homepage, accessed March 9, 2009, http://www.hannity.com/; GlennBeck.com, About Glenn Beck, accessed March 9, 2009, http://www.glennbeck.com/content/program/about/.

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radio stations, but if no one listens, Clear Channel, Premiere Radio Networks, Limbaugh, Hannity, and Beck will lose money and their programs would ultimately be forced off the air. It cannot possibly be true that all or any of these hosts‘ listeners are forced against their will to listen, no matter who owns the radio stations or distribution rights. More likely, conservative hosts have found a niche in AM radio, a medium that apparently draws and serves a more conservative audience. This is not to say that the left side has not tried; their product simply does not sell. Schultz‘s conspiracy theory is implausible and far-fetched. For it to be true, Clear Channel would have to be committed to forcing its stations to carry Limbaugh, Hannity, and Beck, even if it meant operating at a loss. The more realistic approach is to label these programs what they are: successful capitalist business ventures. A scenario in which Clear Channel keeps buying radio stations and making a profit, all without the programs they distribute raking in advertising dollars that are augmented by good ratings, is difficult to imagine. Furthermore, if Clear Channel can do it—that is, present a product for public consumption—what is stopping any other company from doing the same? Well, they tried, and the story of the attempt has an interesting twist. In March of 2004, Air America, a ―progressive‖ talk radio network, launched. When it struggled to get off the ground—and here‘s the interesting twist—Clear Channel, the same conglomerate accused of forcing its stations to carry conservative talk, rescued the failing network.95 In fact, in 2005, about a third of Air America‘s affiliates were stations owned by Clear Channel.96 This figure flies in the face of Schultz‘s conspiracy theory, and leads to a more reasonable conclusion that the market is the driving force behind talk radio, not some grand, 95

Shawn Macomber, Retiring the Boogeyman, THE AMERICAN SPECTATOR, Apr. 1, 2005, http://spectator.org/ archives/2005/04/01/retiring-the-boogeyman 96 Id.

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well-funded, evil conspiracy. Air America continued to fail, however, and filed for bankruptcy in October of 2006, after losing $41.8 million from its inception in 2004.97 The bankrupt network sold in March of 2007, according to the Associated Press, to ―New York real estate magnate Stephen Green and his brother, politician Mark Green . . . for $4.25 million.‖98 So, despite Clear Channel‘s reputation as simply being in the radio business to make money, and despite Clear Channel‘s willingness to carry Air America on stations it owns, Clear Channel, along with its subsidiary, Premiere Radio Networks, ends up being accused of having an agenda and of forcing radio stations to carry conservative talk. This, despite Air America now being owned partly by a politician, and having received money from Democracy Alliance99, an ―an investment partnership of business and philanthropic leaders,‖ whose partners ―are committed to investing in and fostering collaboration among progressive leaders and institutions that are building a more robust, coherent progressive movement at the local, state, and national level.‖100 Among Democracy Alliance‘s founders and financiers is George Soros,101 who is also involved with MoveOn.org102, the Center for American Progress,103 and other various organizations that seek to advance the liberal or progressive agenda. One is left, then, to wonder about whose radio programs are backed by those with a political agenda. This is not to say that those financially backing Air America are doing something sinister or illegal. They have, just as Premiere Radio Networks does, every right to fund radio programs 97

Associated Press, Green Brothers Close Deal to Buy Liberal Talk Radio Network Air America, SIGNONSANDIEGO.COM, Mar. 6, 2007, http://www.signonsandiego.com/news/business/20070306-1031airamericaradio.html. 98 Id. 99 Matthew Vadum and James Dellinger, Billionaires for Big Government: What‟s Next for George Soros‟s Democracy Alliance?, p. 8, Foundation Watch, Capital Research Center, Jan. 2008. 100 Democracy Alliance, About the Alliance, accessed Mar. 11, 2009, http://www.democracyalliance.org/about.php. 101 Vadum and Dellinger, supra note 100, at 3. 102 Laura Blumenfeld, Deep Pockets vs. Bush, Financier Contributes $5 Million More in Effort to Oust President, WASHINGTON POST, Nov. 11, 2003, p. A03. 103 Charlie Savage, John Podesta, Shepherd of a Government in Exile, THE NEW YORK TIMES, Nov. 6, 2008, http://www.nytimes.com/2008/11/07/us/politics/07podesta.html?_r=2&ref=politics.

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and networks and sell their product in the market. The facts about Air America‘s origins and financial support merely serve to illustrate the double standard exhibited by those who think something ought to be done about conservative dominance of talk radio because of their belief that it is a ―vast right wing conspiracy‖ that fuels its success. This leaves the intentions of backers of a fairness standard suspect. Furthermore, as illustrated by the big money backing struggling Air America, it shows that the market ultimately decides which programs succeed, and which programs do not. And no vague and subjectively administered standard should be propping up a product that, while well-funded by private individuals, fails to break into the talk radio market in a significant way. The talk radio market, for one reason or another, is simply more conducive to conservative points of view. But Air America has shown that at least a small market exists for liberal talk radio, and the only thing standing in its way is the desirability of its product in the marketplace. The Fairness Doctrine and Its Offspring is Unconstitutional Even if it were the case that Clear Channel set out to rule the talk radio world and force every one of its stations to carry its conservative programming, Clear Channel should only be subject to established anti-trust laws and not the whims of political appointees administering a vague and subjective standard. In today‘s technologically advanced society, it is shortsighted to look at talk radio as anything more than a small part of the world‘s media framework upon which many points of view may be hung. From print to broadcast, from the Internet to mobile phones, the ubiquitous nature of information makes talk radio but a drop in the media bucket. Singling out radio broadcasts, because of the scarcity of airwaves, in discussions about applying balancing standards is at best a lack of understanding about where people get their information, and at

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worst, a targeting of a certain group‘s political enemies. As a matter of fact, the Fairness Doctrine has been used to target political enemies, and it has cut both ways. The Nixon administration in the 1970‘s threatened to not renew licenses or sic the Securities and Exchange Commission or the Justice Department on offending broadcasters, and both Kennedy and Johnson in the 1960‘s encouraged complaints against right-wing broadcasters to force them off the air.104 Such is the nature of a regulatory regime that employs vague standards and is administered by partisan political appointees.105 For this reason, the Fairness Doctrine—perhaps even when it was in place, before the technological boom of the late twentieth century—is blatantly unconstitutional, as is any FCC licensing scheme with the same effects. The Fairness Doctrine itself is unconstitutional in two ways. First, as applied, the Doctrine is not content-neutral, as is required by the strict scrutiny applied to statutes or regulations that deal with political speech. Second, the standard, which aims at the content of political speech, is too vague to be applied with any consistency. For that reason, it is not narrowly tailored to meet a compelling, or even significant, government interest. Moreover, the Fairness Doctrine and proposed alternatives give too much discretion to partisan political appointees to control the content on the radio. By the same token, the regulatory scheme proposed by John Podesta, and substantially supported by the Obama administration, would give such appointees the authority to strip station owners of property and free speech rights. As the scarcity rationale no longer carries any weight in the new, technologically advanced millennium, any regime that tampers with a broadcaster‘s freedom of speech—especially core, political speech—necessarily deserves the strictest of scrutiny. 104

Erik Ugland, The Fairness Doctrine Redux: Media Bias and the Rights of Broadcasters, 7 Minn. J. L. Sci. & Tech. 301, 309 (Dec. 2005). 105 Id. at 308-09.

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Red Lion revisited and a new standard of review. As noted earlier, the Red Lion court leaned on scarcity rationale to examine the Fairness doctrine under only intermediate, rather than strict, scrutiny, and subsequently upheld its constitutional validity. However, the Court ultimately recognized that technology might progress far enough for them to re-examine the Doctrine.106 Assuming that technology has progressed far enough, the scarcity rationale cannot stand. One particular medium cannot be separated from the vastness of information sources present in the new information age. Instead, an individual medium must be considered as merely part of the whole of today‘s media. Because Americans use a wide variety of media everyday— print, broadcast, cable, satellite, and Internet—singling one particular medium out for stricter regulation fails to adequately appreciate the media-savvy of the average citizen, and the ability he or she has to acquire news, entertainment and other information from any one of the vast array of media, especially when one piece of information can usually be easily found in any and all forms of media. This is especially true of the Internet, through which one can locate content that was originally only printed, broadcasted, or beamed by satellite. Truly, any and all information that can be heard or seen on any other medium is perpetually available on the Internet. Shortages of information or of opposing views are a thing of the past, and a desire to make sure that all views on a particular issue are presented through one medium is either based in ignorance of the reality of today‘s media, or in dirty politics. In that light, different forms of media are melted down to form one giant source of information called ―the media.‖ This great entity then does not require differing regulations for individual parts of the new whole. Thus, a regulation that would be unconstitutional if applied to a newspaper would be unconstitutional as applied to the radio, and vice versa. The case is stronger when its subject is political speech, which is the sort of speech in conservative talk radio 106

League of Women Voters, 478 U.S at 376, n. 11.

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that is targeted by the Fairness Doctrine or ownership caps and ownership diversity requirements. The new attitude toward the Fairness Doctrine in the 1980‘s was that it was a contentbased restriction on core political speech, the speech singled out by the Founders as the type to be most protected by the First Amendment. Still, this view has not completely dissuaded certain Democrats or other leftists from eyeing the doctrine‘s return. Because virtually all calls for the re-imposition of the Fairness Doctrine or something like it have come from the left, and have usually singled out talk radio as its intended target, one has to wonder about the motives behind it. Do supporters of the doctrine‘s return really just want to reestablish fairness and honest, open, and multilateral debate over the airwaves? Or is it simply a content-based ploy to force conservative radio off the dial, or at the very least force unpopular content on unwilling station managers and hesitant listeners? The former question likely rests on a faulty premise (as shown in the previous section) that the talk radio market has not been directed by fair, free-market factors—that listeners are not getting what they want, and that they are begging for something else. Therefore, the only response to the latter inquiry would be in the affirmative. But even if we were to remove political viewpoint from the discussion, the proposed regulatory schemes would still fail to survive strict scrutiny as a content-based regulation. The stated end result of these regulatory schemes is fairness and balance on the airwaves, and thus is in no way content-neutral. Any sanction imposed for not airing all sides of an issue necessarily implies that the aired content did not go far enough to do so—it did not air the ―right‖ content. Thus, the Fairness Doctrine is inherently not content-neutral. That is why intermediate scrutiny will no longer suffice.

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The United States Supreme Court has held that ―[w]hen a law burdens core political speech, we apply exacting scrutiny, and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.107 The Red Lion court got around the ―exacting scrutiny‖ requirement with its adoption of the scarcity rationale as a basis for applying a different First Amendment standard to the Fairness Doctrine.108 Now, although airwaves are still scarce and not everyone who applies for a broadcasting license can get one, abundant alternatives are available to those who wish to disseminate information. Therefore, any regulation that requires station owners to grant air time to anyone who has a beef about what was said on the air is hardly narrowly tailored. Such a regime ignores the multitude of alternatives available to those who wish to rebut what was said on the radio. One would be hard-pressed to find an American who does not know that he can turn on MSNBC or get on the Internet to find out what the other side is saying in response to Rush Limbaugh. And the Supreme Court has expressed its unease with regulatory standards that give wide discretion to their administrators, who, because of such wide discretion, have the ―power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.‖109 The danger of broad discretion to enforce a vague standard. The Fairness Doctrine granted the FCC broad discretion to ensure all sides of an issue presented on the radio were given adequate time. The requirement imposed by the Doctrine is vague in that it leaves it up to FCC regulators to determine what ―all sides‖ of an issue are, and what time given to those views is adequate. Complicating the matter is the fact that those FCC regulators are partisan political appointees, not elected officials. Current events illustrate the problem with this vague standard. 107

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (U.S. 1995) (internal quotes omitted). Red Lion, 395 U.S. at 386. 109 Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 759 (U.S. 1988) [hereinafter Plain Dealer Pub. Co.]. 108

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President Obama makes no secret of the fact that he despises Rush Limbaugh‘s views. He told GOP legislators that they ―can't just listen to Rush Limbaugh and get things done.‖110 Later, the news media uncovered a detailed strategy by the White House to link Limbaugh to the GOP in order to marginalize both, and thereby strengthen the Democratic Party.111 Consequently, the President has the power to appoint to the FCC almost anyone he wants (with the approval of the Senate and provided that no more than three of the five commissioners belong to the same political party),112 who can then further manifest this distaste for Limbaugh and other conservative radio hosts under the guise of serving the public interest by keeping things fair and balanced. FCC regulators would have the discretion to determine, first, what is the public interest; second, what radio content is not serving the public interest, and; third, which opposing views need to be represented in response to that content. The Supreme Court frowns on regulatory schemes that give such broad discretion. In a case in which the Supreme Court struck down a city licensing scheme aimed at newspaper vendors, the Court said that, ―the Constitution requires that the city establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered.‖113 In that case, the city‘s licensing scheme allowed the mayor to grant or deny newspaper vendors the right to place racks on public streets.114 The Court expressed its concern for the suppression of expression because ―in the area of free expression a licensing statute

110

Charles Hurt, Prez Zings GOP Foe in a $timulating Talk, NEW YORK POST, Jan. 26, 2009, http://www.nypost.com/seven/01232009/news/politics/prez_zings_gop_foe_in_a_timulating_talk_151572.htm. 111 Jonathan Martin, Rush Job: Inside Dems‟ Limbaugh Plan, POLITICO.COM, Mar. 4, 2009, http://www. politico.com/news/stories/0309/19596.html. 112 The President appoints five FCC commissioners, only three of which can be from the same political party. Federal Communications Commission, About the FCC, accessed Mar. 30, 2009, http://www.fcc.gov/aboutus.html. However, this means that President Obama can appoint three Democrats and two Independents, or any combination of liberal Democrats, Republicans, and Independents. 113 Plain Dealer Pub. Co., 486 U.S. at 760. 114 Id. at 750.

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placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.‖115 Under the Fairness Doctrine or rules regulating radio station ownership, the content of programming would determine the FCC‘s decision to renew a broadcast license or not. For example, under a new Fairness Doctrine, a station that aired the Glenn Beck Program, followed by Rush Limbaugh, then Sean Hannity, and then Dr. Laura, Michael Savage, and Dave Ramsey116—18 hours of more-conservative-than-not programming—could be deemed by the Obama-appointed FCC regulators as not airing all sides of issues, and therefore not serving the public interest. It is precisely because of the content of these shows that Obama‘s FCC would feel that the public interest was not being served. The FCC could then either require the station to carry alternate programming, or give it the death sentence by not renewing its license. And under the proposed diversity of ownership requirements, this station owner, who, like hundreds of other station owners across the country carries these programs, is more likely than an Air America station with far fewer listeners to be targeted as ―not diverse enough‖ by a liberal-dominated FCC. One would be naïve to think that an Obama FCC with unfettered licensing discretion would not target the right-wing talk radio juggernaut in this way. History tells us that presidential administrations use the FCC to target political enemies, and the Obama administration‘s overt attack on Rush Limbaugh does not lead us to believe that it would behave otherwise. Such content-based regulation of political speech must always be subject to strict scrutiny, needing to be narrowly tailored to meet a compelling government interest. In this case, where the regulation is necessarily content-based, at least in its application, it cannot be said that the Fairness Doctrine‘s equal time for opposing views requirement is narrowly tailored, or that it 115

Id. at 757. Dave Ramsey is a financial guru who urges fiscal conservatism for individuals and government. He has a daily radio show in syndication, and appears nightly on Fox Business Network. 116

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even meets a compelling government interest. Sure, it is important to establish an informed citizenry through promotion of broad discussion of varying points of view, but requiring one radio station to alter its profitable programming and trade its money-makers for time for opposing views is not compelling in light of the advances of technology in the realm of information dissemination. If one can choose to hear opposing views on broadcast television, satellite, other radio stations, or the Internet, of what importance is it to make sure that one of all the varying forms of media presents opposing views to its audience, who has turned in to hear Rush Limbaugh? The answer is that given today‘s information superhighway, political balance on the radio is insignificant. Opposing views are easily found with the click of a mouse, or a turn of the radio or television dial. Ensuring balance of information on the radio, therefore, is not a compelling government interest, and requiring balance on the radio is not a narrowly tailored means to achieve that end, especially when enforced by partisan political appointees. Fairness is not achieved through partisan appointees with unbridled discretion. Under the Fairness Doctrine or its proposed effectual equivalents, the FCC simply would have too much discretion to determine which licenses are granted and renewed. The Fairness Doctrine or its proposed effectual equivalent is therefore too wide open for potential abuse to be used in any Constitutional way to regulate free expression. FCC discretion to grant and renew licenses with the goal of promoting diversity of ownership would give too much power to partisan operatives and enable them to force, in this case, conservative talk off the air. Such potential for abuse cannot be tolerated under the Constitution, and given their unease at licensing schemes containing unfettered discretion, the Supreme Court would likely agree. Rush Limbaugh, quoted earlier, says that station owners and managers faced with Fairness Doctrine requirements would only dump programming like his to avoid controversial

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political issues and keep their stations. Thus, the Fairness Doctrine has two fatal flaws. First, it chills political speech on the radio, rather than fosters more political discussion. Second, by chilling speech in this way, it deprives station owners of hefty profits made from airing highlyrated conservative talk that brings in advertising dollars. And as the standard would be applied by partisan political appointees, free speech be damned, conservative talk radio would suffer the consequences. The same would be true of ownership caps and diversity of ownership standards. First, ownership caps do nothing more than give government more control over who owns what. Economic arguments aside, it should not be left to a partisan federal agency to enforce limits on how much a person or corporation can buy, and by necessary implication, who can sell what to whom. This set up violates principles of individual liberty espoused in the Constitution. Under the proposed regulatory regime, the government would control who can buy or sell what—a first step down an economic model destined, as history has shown, to fail. True, airwaves are scarce, but so is oil, so is land, and so are minerals, to name a few. Scarcity should not allow the government to determine who controls a given resource. One‘s labor, as Locke said, should be a stronger determinant of ownership. Just as oil companies work to secure the capital to purchase land and drilling rights, and then bring in the equipment and laborers to obtain the oil, and sell their product on the market, so goes the radio station owner. He has worked to be able to purchase the station he owns. He has procured the equipment necessary to harness the airwaves in his particular region. He sells his product to a free and willing market, just as producers of oil sell theirs. Government‘s place is not to step in and determine who will be allowed to own what radio station. And it is surely not proper for partisan appointees with broad discretion to do so. Such a content-based regulatory scheme is a threat to free expression; a threat to the freedom of

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conservative radio talk show hosts to engage in core, political speech—speech that is protected above all other forms. Politics, not Balance We have seen how technology has advanced so far as to let every American gather information and assemble all sides of a given issue like never before. We have seen the death of the Fairness Doctrine, brought on by the complete erosion of the scarcity rationale. And now we see calls for its renewal, or for greater government control over media ownership, all in the name of fairness and balance. But with the abundant crop of resources that time and technology have laid at our fingertips, calls for greater regulation of talk radio in order to promote balance and an informed citizenry are only political jockeying and poorly veiled attacks on political enemies. It is simple, really: proponents of the Fairness Doctrine or its equivalent take a paternalistic approach—as opposed to letting the market work—to making sure that ordinary citizens are not led away from them by the ―lies‖ and ―misinformation‖ spread by conservative talk radio. It is more about preserving power in the Democratic Party than keeping citizens informed. What is ironic, however, is that even with Rush Limbaugh, Sean Hannity, and Glenn Beck filling the airwaves with nine daily hours of ―unbalanced misinformation,‖ the Democrats still won the House, the Senate, and the White House in 2008. The motivating factors behind the actions of the party in power are no more than more power and more control. Democrats who support more regulation in this area are either ignorant of technology or are creating a fictional need to further their political ambitions and silence their critics. The true nature of the availability of information leads to no other conclusion.

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