Dispatches from the Creation Wars

Volokh on the Fairness Doctrine

Eugene Volokh has an excellent post about the impossibility of coherently crafting a fairness doctrine in this day and age. Imagine we have a basic rule saying that every media outlet, when it presents a perspective on a public issue, must present each side fairly or allow each side a reasonable opportunity to present their views. This sounds much simpler than it actually is in reality. Volokh asks the right questions, like this one:

1. Multiple sides: For instance, say that a talk show host argues in favor of legalization of drugs. The broadcaster would then have to give time to the pro-drug-war perspective. But what if someone demands time for an intermediate proposal, such as keeping drugs illegal but ratcheting down penalties? Should the broadcaster be obligated only to carry some rival views (i.e., the broadcaster could choose), the most opposed views (i.e., the broadcaster would have to take the hard-core pro-drug-war advocate but not the mid-course advocate), the most popular rival views, all rival views, or all credible-seeming rival views? How should this be decided?


These are not idle questions by any means. There is hardly an issue presented on any news or comment show that does not have multiple possible viewpoints on it. Can you imagine the boondoggle of the government deciding whether a show has fairly presented all sides? How could that happen without whichever party controls the executive branch – remember, the FCC is an executive agency whose head is appointed by the President – tilting things toward its own party and against the other?

In the present information age, innumerable perspectives are publicly expressed and widely disseminated via the internet on practically every issue. Would the fairness doctrine only require that you offer the Republican and Democratic perspectives on issues? That would only further entrench the narrow boundaries of a political system where both parties are tools of the special interests, leaving any less room for alternative viewpoints. That is clearly unhealthy for a free society.

But if you expand beyond that and require media outlets to give a fair amount of time to each and every political party or interest group with a perspective, you’ve made journalism all but impossible. And even if it was possible to do so, the rules could very well be turned to support whatever perspective the producer wants by deliberately giving equal time to the most absurd alternative viewpoints. Volokh points out:

2. Broadcaster choice aimed at discrediting rival views: In particular, if the broadcaster has discretion about which views to choose, what if the broadcaster deliberately chooses the most extremist rival speakers — or for that matter, rival speakers who are just inarticulate or foolish — to present the contrary views?

Imagine Fox News having to give equal time on Ollie North’s show to an anti-war perspective, so they go out and get someone from ANSWER or from some whacko who thinks Bush was behind 9/11. Voila, they’ve presented both sides – but they’ve only presented the most absurd, easily discredited version of the “other side.” And if this is not against the rules, then you have an executive agency having to decide subjectively whether each and every news show on TV every single day has presented every single issue in a fair and evenhanded manner – again, an agency run by a political appointee and beholden to a party. Volokh concludes:

More broadly, I take it that things have changed since the 1980s. Most importantly, the Internet has made it much easier for activists to organize. If a broadcaster broadcasts some anti-gun presentation, I take it that gun rights activists can within hours learn about it, file many demands for time to respond, and even create striking video responses (or perhaps edit them from existing materials).

Where before a broadcaster might have gone only a few demands for response time, now a broadcaster may find itself getting multiple demands daily for nearly every controversial issue it covers. And if a broadcaster appears to be providing only “surprisingly little balance,” these same well-organized groups can arrange the filing of multiple complaints with the FCC — again, every time a broadcaster is accused of not promptly responding as to any controversial issue it covers.

There would certainly be lots of incentive for activists in a wide range of fields to get aggressive about demanding response time, and complaining about perceived inadequacies in response time: The activists will feel that they are fighting back against the Bad Biased Media (whichever way they think the media is biased). They will get a chance to get extra airing for their views. And they will suspect that their actions may in some measure deter the Bad Biased Media from expressing those views that trigger the activists’ aggressive response.

I think he’s absolutely on target.