What’s Fair Is Fair And fair is not the “Fairness Doctrine.”

[originally posted on National Review Online]

October 20, 2008 6:00 AM

By Barbara Comstock & Lanny J. Davis

A recent Rasmussen poll reported that nearly half of Americans (47 percent) believe the government should mandate political balance on radio and TV airwaves. House Speaker Nancy Pelosi has also indicated that she would like to reinstate the so-called “Fairness Doctrine.” While the two of us can usually be found on opposite sides of many political issues, this is one issue where we have found strong agreement: We both strongly oppose reinstatement of the so-called “Fairness Doctrine.” Historically, opposition to the Fairness Doctrine has been genuinely a bipartisan issue.

To demonstrate — guess which noted newsman had the following to say about how the Fairness Doctrine operated in practice: “I can recall newsroom conversations about what the FCC implications of broadcasting a particular report would be. Once a newsperson has to stop and consider what a government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost.”

Dan Rather.

But the same could have been said by Rush Limbaugh or Sean Hannity and Alan Colmes. All of them, like Dan Rather, have opposed the Fairness Doctrine, an outdated government regulation, abolished in the 1980s, that used to require broadcasters to present contrasting viewpoints on controversial issues or be threatened with fines or losing their broadcast licenses. The doctrine also resulted in lawsuits such as one in 1978 when NBC aired a show on the Holocaust and was sued by a group demanding air time to argue that the Holocaust was a myth. The network had to defend itself for over three years.

Last year, Congress overwhelmingly and bipartisanly passed (309-115) a one year ban on reviving the Fairness Doctrine. This fall they again renewed the ban for another year. However, the First Amendment shouldn’t have an expiration date. The ban on reviving the so-called Fairness Doctrine should be permanent and that is why we both support having a vote on the Broadcaster Freedom Act.

The Federal Communications Commission under President Reagan wisely eliminated the Fairness Doctrine in the 1980s after determining the rule actually discouraged broadcasters from covering controversial issues. Demonstrating the bipartisan opposition to the Fairness Doctrine existed then as now, President Reagan had an unusual ally in his effort in Governor Mario Cuomo who also opposed the Doctrine pointing out: “Of course there are limits to liberty and lines to be drawn … But curtailing First Amendment rights should be allowed only when the need is so clear and convincing as to overwhelm with reasonableness the arguments in opposition. And the case for government intrusion, for the Fairness Doctrine, is certainly less than compelling at its very best.”

The Fairness Doctrine originally was designed at a time when there were only a few media outlets. But as the Los Angeles Times editorial page highlighted last year in an excellent case against reviving the rule: “No matter what your point of view might be, you have free or inexpensive outlets available today to express it — maybe not a radio or TV station but certainly a website, a video blog, a podcast or an e-mail newsletter. At the same time, the public has unprecedented access to a diverse array of opinions. Just as the government shouldn't decide what you say on the channels you create, nor should it be able to dictate the range of opinions people hear over the air.”

Two decades ago, the Washington Post agreed: “…it is a chilling federal attempt to compel some undefined "balance" of what ideas radio and television news programs are to include. However bad or unfair today's news may seem on occasion, do people really want government to step in as judge? Members of Congress who care about genuinely fair coverage of views should abandon the congressional effort, which is based on an outdated concept of limited airwaves.”

The goal of “fairness and balance” in the media is always going to be in the eye of the beholder but fortunately today we have a multitude of media avenues to get our voices heard. And as for the idea of hearing from “both sides” of an issue — who assumes there are just two sides? If any two or three people could disagree as to how many sides of an issue exist — as we are sure we would — can you imagine government bureaucrats deciding first, how many sides of an issue there might be and second, how much “fair and balanced” speech each and every side would be allocated?

Instead we would suggest this well-worn maxim: “The remedy for speech you don’t like is not less speech, it is more speech.” “More speech” is something that today’s 24/7 media environment provides abundantly for all sides.

That is why today the coalition opposing the Fairness Doctrine is broader than ever. Those who cannot compete in the marketplace of ideas have only themselves to blame.

Maintaining our First Amendment freedoms is an American fundamental, one upon which we should be able to reach bipartisan agreement. This will be a contentious election year; but we need more speech, not less, and not government regulated speech. Let our right to free speech remain and pass the Broadcaster Freedom Act.

— Barbara Comstock, a principal of Corallo Comstock, Inc., represents the National Association of Broadcasters and served as director of public affairs for the Department of Justice from 2002-2003. Lanny J. Davis, a Washington , D.C., attorney in the global law firm, Orrick Herrington & Sutcliffe, served as President Clinton’s special counsel from 1996-98.