The Fairness Doctrine: One Battle Won, But the War Goes On

In somewhat characteristic performance last week, the Senate voted to close to kill the controversial Fairness Doctrine, then, shortly afterward, opened to the door to its potential return.

In the first instance, the Senate passed Republican Sen. Jim DeMint’s Broadcaster Freedom Act 87-11, an amendment that specifically prohibited the FCC from reinstating the Fairness Doctrine. A few hours later, the upper chamber passed 57-41 a rival amendment from Democratic Illinois Sen. Richard Durbin that rather nebulously called for the FCC to encourage diverse media ownership. According to the Wall Street Journal’s Washington Wire, DeMint said Durbin’s amendment overrode the language in his bill.

Durbin denied this, but all he would say was that “President Obama says he doesn’t support reinstating the Fairness Doctrine and neither do I,” said Durbin.

That’s the rub. DeMint’s bill would have pre-empted any attempt by the FCC to re-impose the Fairness Doctrine. The Durbin bill muddies this with the addition of “diversity” language. So it doesn’t matter what Durbin or Obama think about the Fairness Doctrine. The next FCC chairman, can choose to interpret the language as he sees fit.

Although Free Press, a long-time supporter of the Fairness Doctrine, sees to have given up on it as well, those who place the plain language of the First Amendment above vague and subjective FCC directives should not consider the fight over.

Adam Thierer provides a pointed warning at Technology Liberation Front against assuming the Fairness Doctrine and the Progressive agenda can be easily separated. He writes:

There’s a rich mythology that has built up around “the public interest” efforts of the progressives, but like the Fairness Doctrine, it’s all just arbitrary government abuse of the First Amendment at the end of the day. Indeed, as I’ve noted here before, the public interest standard is not really a “standard” at all since it has no fixed meaning. The definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time. As such, it represents an utter betrayal of the First Amendment and the rule of law. And all the regulations that are pursued in the name of “serving the public interest” are really nothing more than crass political thuggery that have no relationship to what the public actually wants to see or hear. The “public interest” should be what the public says it is, not a handful of unelected bureaucrats who want to spoon feed us nonsense we don’t want and then censor that stuff we actually desire.

The folks at the Free Press can tell us that there is no linkage between the Fairness Doctrine and all these other regulations, but that doesn’t make it so. At the end of the day, these regulations share many things in common, especially their hopelessly arbitrary, First Amendment-betraying nature.

Thus, the war for true media freedom will continue. Nonetheless, it is important not to lose sight of the important win this week for that cause with both Congress and the Free Press acknowledging the anti-free speech, diversity-destroying nature of the UnFairness Doctrine.