Protect Talk Radio and Religious Broadcasting from Regulatory Repression

By: Wayne Olson and Gregory Hession
April 1, 2008

» Email this page | printer friendly version

The Broadcaster Freedom Act of 2007 (HR2905), introduced on June 28, 2007 by Rep. Mike Pence (R-Ind.), would prohibit the Federal Communication Commission (FCC) from reinstating the so-called Fairness Doctrine, a policy which has not been enforced by the FCC since the mid-1980s. The FCC could resume enforcing the policy through an act of Congress, a decision of the FCC, or most likely through a presidential executive order.

A Clinton presidential aide candidly said of executive orders in 1998, “Stroke of the pen. Law of the land. Kinda cool.”

Such a cavalier attitude about presidential authority which can be abused or become dictatorial raises serious concern. According to Congressman Pence: “The Broadcaster Freedom Act … would ensure that no future President could regulate the airwaves of America without an act of Congress.”

BACKGROUND

The Fairness Doctrine was a policy established by the FCC in 1949, but discontinued in 1987. The policy required broadcasters to make air time available (paid or unpaid) for the expression of contrasting viewpoints about controversial issues of public importance (as determined by FCC bureaucrats) or risk losing their license.

The creation of the rule was justified on the grounds that the public had insufficient access to diverse viewpoints through the limited number of broadcast radio stations that existed at the time. The intent of the FCC was to force broadcasters to keep the public better informed, but the plan backfired. Broadcasters fearful of an unpredictable and politicized regulatory agency reduced air time about controversial issues in order to minimize their risk of inviting an expensive law suit or being shut down.

Although the FCC's purported goal was to foster greater public understanding about key issues, the Fairness Doctrine was turned on its head. It became a tool for censorship and unfairness by politicians who sought to direct and maximize the FCC policy's effect of intimidating broadcasters who, unlike newspapers or magazines, would be forced to give equal time (as determined by the regulators) to viewpoints they may disagree with.

As decades passed the number of broadcast channels proliferated into the thousands. By the mid-1980s the FCC concluded there was no reason to continue enforcing the Fairness Doctrine, because the public had acquired ample access to opposing viewpoints through a natural growth in the number of broadcast outlets. Since then, in the absence of the intimidating effect of the Fairness Doctrine, talk radio has flourished in America and has become a critical watchdog, alerting the masses about outrageous government activity, particularly on occasions when national news networks led by political correctness elites are the dogs that don’t bark.

A POLITICAL WEAPON

Americans should be on high alert about the risk that the inaptly named Fairness Doctrine will be put back into force by a Congress or a president with an agenda to once again deploy the rule's intimidation effect to silence political opponents. Cosponsor of H.R. 2905, Rep. Greg Walden (R-Ore.), warned:

Unfortunately, some in Washington, D.C. appear interested in bringing the Fairness Doctrine back, presumably because they don't like the opinions they hear on the radio and the grassroots-organizing it presents. Quite simply, they want to muzzle the voice of talk radio. This is a blatant assault on the First Amendment, and as a broadcaster for over 20 years I am extremely concerned about it.

When an attempt was made in Congress to reinstate the Fairness Doctrine in the early 1990s, Adam Thierer, in a 1993 article for The Heritage Foundation entitled "Why the Fairness Doctrine is Anything But Fair," pointed out that during the period in which the rule was enforced it had been used as a political weapon by both Democrat and Republican administrations:

Since it is impossible for every station to be monitored constantly, FCC regulators would arbitrarily determine what "fair access" is, and who is entitled to it, through selective enforcement. This, of course, puts immense power into the hands of federal regulators. And in fact, the fairness doctrine was used by both the Kennedy and Nixon Administrations to limit political opposition. Telecommunications scholar Thomas W. Hazlett notes that under the Nixon Administration, "License harassment of stations considered unfriendly to the Administration became a regular item on the agenda at White House policy meetings." (Thomas W. Hazlett, "The Fairness Doctrine and the First Amendment," The Public Interest, Summer 1989, p. 105.) As one former Kennedy Administration official, Bill Ruder, has said, "We had a massive strategy to use the fairness doctrine to challenge and harass the right-wing broadcasters, and hope the challenge would be so costly to them that they would be inhibited and decide it was too expensive to continue." (Tony Snow, "Return of the Fairness Demon," The Washington Times, September 5, 1993, p. B3.)

Several failed attempts over the years have been made by congressional Democrats to reinstate the Fairness Doctrine. President Ronald Reagan vetoed legislation in 1987 and President George H.W. Bush's veto threat derailed later pushes. The 2000 Democratic National Platform again called for a reinstatment of the Fairness Doctrine by the FCC. If the 2008 general election puts Democrats in control of both houses of Congress plus the presidency, the Fairness Doctrine will likely be reinstated.

Some notable Democrats reported to be paving the way for another attempt to reinstate the Fairness Doctrine include: House Speaker Nancy Pelosi, House Majority Leader Steny Hoyer, former presidential candidate Rep. Dennis Kucinich, Rep. Maurice Hinchey, Senate Majority Whip Dick Durbin, former presidential candidate Senator John Kerry, Senator Diane Feinstein, and House Commerce and Energy Committee Chairman Rep. John Dingell in whose committee H.R. 2905, the Broadcasters Freedom Act of 2007, has been held up and languishes.

The primary complaint raised by liberals is that "talk radio" is dominated by conservatives and that a balancing of viewpoints is called for that requires regulatory control (government interference). The complaint is misleading, because any debate about media domination should definitely include consideration of the overwhelmingly liberal slant of network television broadcasting. Conservative talk radio has provided a measure of counter balance to the more influential liberal turf of television.

Having been largely driven into obscurity on network television, in Hollywood, and by most of the largest publishers of printed news, it is not surprising that when conservatives found a much needed forum via talk radio their concentration on it became high. The tyrannical left would deprive conservatives of preeminent strength in any facet of mass media.

While conservative bias on talk radio tends to be direct and up front, the style of liberal bias on television tends to be indirect and subtle. Consider, for example, the use of language: supporters of abortion are called pro-choice while pro-lifers are portrayed as anti-abortion. Another outrage of hard-left network television is the politically correct under-reporting or glossing over of certain politically sensitive issues, such as the travesty of justice concerning Border Patrol agents Ramos and Compean, or by largely ignoring statements from the most conservative candidates while reporting ad nauseum even the most non-substantive prattle by elitist preferred candidates. That unfairly manipulates the name recognition of candidates among the voting public.

Given the political motives for reinstating the (un)Fairness Doctrine and its historic abuse by presidential administrations in the '60s and '70s, it is naïve to expect that if the policy returns it would be applied fairly or that a double standard would not be employed. Don’t expect the politicized FCC to get tough on politically correct network television. A reinstatement of the Fairness Doctrine would shift the net political bias of radio and television combined significantly left-er of left.

A more controversy-charged religious landscape exists in American today than the 1980s or when the Fairness Doctrine was initiated over half a century ago in 1949. Under strict new enforcement of the Fairness Doctrine broadcast stations dedicated to a singular religious school of thought would be required to make air time available, possibly at no charge, for alternative viewpoints on controversial issues such as the plan of salvation, sexual morality, abortion, etc.

The financial viability of specialty religious stations could be jeopardized not only by lawsuits but from a potential drop in funding from donors and sponsors unwilling to involuntarily subsidize programs that compete with or oppose their convictions. As a steppingstone, a reinstatement of the Fairness Doctrine dovetails with the goal of some to make it a "hate" crime in America to preach the traditional morals and doctrine of the Bible.

CONSTITUTIONALITY

The First Amendment of the U.S. Constitution Bill of Rights reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

“Congress shall make no law…” There is nothing ambiguous about “no law.” “No” means no law whatsoever which limits free speech or the press. The Fairness Doctrine’s historic intimidation of broadcasters and the broadcast press brought about self censorship. Under an absolutist interpretation of the First Amendment the Fairness Doctrine thus stands condemned.

Unfortunately, the Supreme Court chooses not to consider all speech as equally protected under the First Amendment, even though the amendment makes no indication there should be discrimination or varying degrees of protection. According to the Legal Information Institute:

The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech.

“Substantial justification” or compelling interest is an abominable loop hole for stomping on the First Amendment! Government control over the expression of political viewpoints is not in the public interest. Who decides what is fair under the Fairness Doctrine when tyrants rule? Tyrants do! The Constitution is intended to limit the authority of the federal government so as to safeguard America from tyranny.

When the U.S. Supreme Court reviews a case to determine whether the government has abridged someone’s free speech in violation of the First Amendment, it imposes an analysis not found in the Constitution, called the “compelling state interest” test. Here is how it works: the court decides whether the government’s action in suppressing free speech is important enough to satisfy some “compelling” government interest, in which case, it justifies and allows the government suppression of free speech.

The mystical formula for deciding whether the government’s interest is compelling enough to squelch free speech is unclear. In fact, what the court allows and what it suppresses changes like shifting sand, depending on the political winds at the moment. By using this “compelling state interest” test, the court has imposed scores of limitations on free speech which are not in the First Amendment, and which almost always reflect a political bias of some sort. It then has a very reasonable-sounding rationale and legal cover for doing what the First Amendment prohibits.

Using this analysis, the court allowed laws prohibiting free speech at abortion clinics, restricting political campaign speech, restricting giving to political campaigns, and permitting simple majorities in unions to impose dues on non-union members, conducting open-air meetings without a license, and even prohibiting non-posted communications to be deposited in private mailboxes.

Congressman Larry McDonald of Georgia was a stalwart conservative constitutionalist Democrat who was lost at sea in 1983 when the Soviets shot down Korean Airlines Flight 007 bound for Korea. He said that the Federal Communications Commission "is the only federal agency which operates for the purpose of violating the First Amendment. It does not say that is what its purpose is; but the meaning of freedom of speech is that government shall not require a license to speak. FCC will revoke a broadcasting station’s license if it does not like what has been said on that station, and will refuse a license if it does not think it will like what the applicant may permit to be said over the air." (We Hold These Truths, Seal Beach, California, ’76 Press, 1976.)

More than a decade before the FCC revoked the Fairness Doctrine, another Democrat, Senator William Proxmire of Wisconsin, the famous fighter against government waste who originated the “Golden Fleece Award” commented:

The Federal Communications Commission’s Fairness Doctrine and the equal-time provision for political candidates are two major abridgments of the First Amendment. But there are other FCC policies that also diminish broadcasters’ free-press rights.

The penalty for broadcasters angering the FCC can be loss of their licenses. Yet there is really little difference between that and closing newspapers and jailing newsmen in countries with less freedom than ours. But since 1934, the FCC has put off or kept off the air a total of 105 broadcasters, and cases against 58 more are pending. From 1970 to 1974, more than 500 fines totaling about $640,000 were levied by the FCC against broadcasters.

Conservative constitutionalist Democrats of the 21st century, where are you when America needs you most? The free speech of broadcasters and the broadcast-press needs to be safeguarded by an act of Congress before it is too late, which could mean before the next Congress and the next president recite their oath of office to uphold and defend the Constitution.

BILL STATUS

H.R. 2905, the Broadcast Freedom Act that would prohibit FCC use of the Fairness Doctrine, was introduced in the House on June 28, 2007 and was immediately referred to the Energy and Commerce Committee and its Subcommittee on Telecommunications and the Internet. The bill has been held up in the committee stage since introduction. Most bills are killed in the committee stage and never get a chance for an up-or-down vote by the House.

On October 17, 2007 Rep. Pence filed Discharge Petition No.110-3 to force the release of H.R. 2905 from committee and allow for an up or down vote by the House. To be successful a discharge petition requires the signatures of a majority of House members (218). The petition was originally filed with 130 signers. By Nov. 6, 2007 the petition had 194 signers.

SPECIAL CONSIDERATIONS

There are fewer than a dozen cosponsors of H.R. 2905 who have not signed Discharge Petition No. 110-3. Democrats sympathetic to H.R. 2905, particularly cosponsors Rep. John Yarmuth (D-Ky.) and Rep. Jason Altmire (D-Pa.), are presumably under pressure from Democrat party leadership to withhold support for this discharge petition.

Therefore, it is critical that Yarmuth, Altmire, and other Democrat congressmen from conservative-leaning districts receive an outcry from their constituents demanding they respond to this issue on the basis of principle rather than partisanship. Otherwise partisan pressures will once again overcome the statesmanship we so desperately need in this country.

Are there other House Democrats in addition to Yarmuth and Altmire who oppose reinstating the Fairness Doctrine? Yes! On June 28, 2007 amendment H.AMT.484 to the Financial Services Appropriations bill H.R. 2829 was passed 309-115, Roll Call #599, with practically half of the Democrats (113) voting in favor of the amendment. That amendment called for the prohibition of funding to implement the Fairness Doctrine should it return in fiscal year 2008. It was a temporary and not comprehensive enough solution, yet demonstrates that many Democrat congressmen are sympathetic to preventing the repressive Fairness Doctrine from being reinstated.

If one or more of them receive enough constituent encouragement to break the ice of partisanship and sign Discharge Petition No. 110-3, other Democrats could follow suite. H.R. 2905 would probably pass in the House if allowed an up or down vote. Let's not let this bill die in committee.

Help make Discharge Petition No. 110-3 a success!

RECOMMENDED ACTION

Confirm whether your congressman is among the 194 published signers of Discharge Petition No. 110-3.
If your congressman has not signed the discharge petition, check to see if your congressman is among the 204 cosponsors of H.R. 2905. [Click the "show co-sponsors (204)" link]
If your congressman is a cosponsor of H.R. 2905, but has not yet signed the discharge petition, ask why not and urge your congressman to sign Discharge Petition No. 110-3, for the Broadcaster Freedom Act of 2007, H.R. 2905.
If your congressman is not a cosponsor of H.R. 2905, please urge your congressman to sign Discharge Petition No. 110-3, especially if in the summer of 2007 he or she voted in favor of amendment H.AMT.484, Roll Call #599. Find out for certain whether your congressman truly opposes the Fairness Doctrine or was merely posturing by a vote in favor of that amendment. Is your representative willing to sign the discharge petition?
E-mail this link to others in your sphere of influence and ask them to likewise voice support to their congressman for Discharge Petition 110-3 and The Broadcaster Freedom Act of 2007, H.R. 2905.