Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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.
Comments
In a sense, FOX Noise already does this - they hire very weak 'other side' people for their allegedly balanced segments that then act as punching bags for the right-wing propeganda perpetuated on the channel.
Thus, they pretend to present both sides, but really just do so to discredit the non-right-wing-nutjob side of the equation.
Posted by: Disgusted Beyond Belief | July 30, 2007 10:51 AM
That's generally true. I've always said that the only reason Alan Colmes is there is to make Hannity look like he's at least of average intelligence.
Posted by: Ed Brayton | July 30, 2007 11:01 AM
How real is this "debate" about the Fairness Doctrine anyway? Near as I can figure, it's the latest right wing boogityman (bogeyman? boogeyman?) designed to demonize and distract. I mean, Inhofe mentions on right-wing talk radio that he overheard Clinton and Boxer talking about it, conveniently leaving out that this supposed conversation was overheard three years ago (not to mention flatly denied by both parties). All of a sudden the right is indignant and furious about the issue.
Where, exactly, have left-wing politicians been openly advocating to resurrect this policy? I think Kerry was the only one (short of Kucinich, who I think may have actually tried to revisit this a few years back) who said anything beyond the tepid, "maybe something to look into" non-endorsement endorsement, and as far as I'm aware, there hasn't been a single piece of lefty-generated legislation that has tried to take a baby step back in this direction.
I maintain this is a non-controversy, and isn't remotely close to being a real issue.
Posted by: BG | July 30, 2007 11:06 AM
I totally agree, BG. The Fairness Doctrine isn't coming back. Two weeks ago, the House added an amendment to a larger bill explicitly rejecting the Fairness Doctrine by a 3-1 margin, even with the Democrats in control. It's not coming back, period; conservative talk radio has been vastly exaggerating a few comments by a few Democrats and ignoring the fact that the bulk of even Democrats do not support it.
Posted by: Ed Brayton | July 30, 2007 12:13 PM
I'd like to see something like the old "personal attack" rule back in force. In effect until 2000, it required stations airing attacks on individuals or small groups to notify them within a week, send transcripts and allow air time to respond.
Posted by: Pieter B | July 30, 2007 12:41 PM
Our system of broadcasting is the finest broadcasting system in the world. But the point here is that broadcast licenses are government benefits conferred on certain citizens and not on others. It's preferential treatment. It's as if the government set up a megaphone in the park for the exclusive use of certain citizens, and then stationed a policeman next to the podium to ensure that none of the non-speakers was allowed to interfere with the selected group's exclusivity.
That's why it's confusing to me when I hear people call for government to stay out of the broadcasting business. Broadcasting as we know it would not exist were it not for government involvement in assigning exclusive use of portions of the public airwaves and enforcing those rights against any encroachers. By contrast, newspapers don't rely on the exclusive use of public property to provide service. If the government owned all of the printing presses in the country and gave them out on an exclusive basis to certain selected citizens, the analogy to broadcasting would be more accurate.
This government-created system permits the government to impose fiduciary duties on broadcasters that it could not impose on newspapers under the First Amendment.
. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and present those views which would otherwise, by necessity, be barred from the airwaves
No one has a First Amendment right to monopolize a broadcast frequency. Unlike newspaper owners, every broadcaster knows going in that his ability to pursue his private interests are constrained by the obligation to serve the public
And we should not be deterred in this critical task by those who would use specious constitutional arguments
The Fairness Doctrine would not prevent a single person on talk radio or television from expressing his or her point of view. What it would do is provide a format that would prevent the one-sided arguments, half-truths and non-truths, and personal attacks that make up much of today's heated media format. prevent the indoctrination of single-view political ideaology's - and the ability to hear both sides, or multiple sides, of a position. Americans should be thinkers, and not followers, on important issues that affect the country and the world. Once educated and able to form an opinion, then falling on either side of an issue is okay by me.
Posted by: Ian Gallagher | July 30, 2007 1:34 PM
Ian--The arguments you present are good and they may have carried the day when there were only a handful of broadcast channels available.
However, broadcasts frequencies also compete with cable broadcasts and internet broadcasts. Now that the ability to broadcast is available to nearly everyone, the argument that frequencies are a scare public resource which therefore justifies limiting free speech, isn't nearly as convincing as it was twenty years ago.
Posted by: David C. Brayton | July 30, 2007 2:29 PM
I'm frankly unconvinced in this particular case by the argument that broadcast media is no longer the entire media. Yes, this does mean that our media policy should be different now than it was in the 70s or 80s. Yes, there are a lot of ways to reach people now besides just broadcast TV and radio. But if you use those other ways of reaching people, you're not going to be reaching the same people. Broadcast media allows you to reach wider markets, or at least different markets. And because of government spectrum allocation policy, those markets have been made available to some groups of people but not others.
This said, I would be much more interested in policies which increase the diversity (and not just political diversity, for that matter) of parties who are issued broadcast licenses, than in policies which attempt (probably not fairly, and surely futilely) to force parties who have been already given broadcast licenses to present a diversity of viewpoints.
Posted by: Coin | July 30, 2007 3:33 PM
The mere fact that government issues broadcast licenses is not an argument for the fairness doctrine or any other type of content control on what can be broadcast. The argument for ideological content controls might have made some sense 40 years ago when the three networks and newspapers were pretty much the sole news sources for the masses, but that simply isn't the case anymore. The diversity of sources from which people can get information has never been as high as it is now, not by orders of magnitude. The three major networks have seen their news shows dwindle in popularity as the innumerable alternatives have cropped up. People can now pick and choose not only from broadcast networks but from dozens of cable news channels, from the thousands and thousands of newspapers and magazines that are now available to them through the internet that would never have been available before, from the millions and millions of webpages and blogs devoted to various issues, from not only all the broadcast radio stations but now all of the satellite radio stations as well. Never in history has such a vast array of information sources been available - I mean not even close. There simply is no reason to believe that anyone is being denied any perspective or any information that they might wish to listen to, see or read. On top of that, as Volokh accurately points out, there just isn't any coherent scheme by which to impose such restrictions. And most importantly, no matter what restrictions you might want you cannot escape the fact that they can only be enforced by political appointees - the last people on earth we should want deciding what can or must go on the air.
Posted by: Ed Brayton | July 30, 2007 4:03 PM
Ed:
Although I agree that a "fairness doctrine" is now unnecessary, let's not revise history even if we end up with the correct result.
The "fairness doctrine" was eliminated in 1985, before there was such a thing as the Internet, and when cable networks were still in their infancy. So it is a bit disingenuous to assert a 'technology argument' for its original elimination.
The reason for the elimination of the "fairness doctrine" - significantly, it happened under Reagan - was so that the right-wing could capture talk radio, at a time when talk radio and broadcast TV were just about the only electronic shows in town (print media are not relevant to this, because they are in different category and never had a fairness doctrine in any case.)
This is exactly what came about - the right wing 'owns' talk radio. So in a sense, the elimination of the fairness doctrine achieved its goal. The fact that this goal is now empty should not obscure its origins.
As you point out, new technologies, essentially unforseen in 1985, have made a "fairness doctrine" for broadcast media unnecessary. But let's not forget what was the real agenda behind the elimination.
Posted by: Poly | July 30, 2007 5:37 PM
Before I say this: Note I am not myself in favor of the fairness doctrine. But:
People can now pick and choose not only from broadcast networks but from dozens of cable news channels
That's if they have cable.
from the thousands and thousands of newspapers and magazines that are now available to them through the internet
That's if they have the internet.
from not only all the broadcast radio stations but now all of the satellite radio stations as well
That's if they have satellite radio.
Now, given, these days effectively everyone has access to the internet; if you don't have it at home, there are public ways of gaining access. And cable television is ubiquitous-- I could be horribly misremembering but the last time I checked there were more people with cable/satellite TV than there were with TV sets and broadcast-only access. The situation here is so extreme that I would more or less consider these legitimate grounds for not really bothering to regulate broadcast television.
But that leaves radio. Radio is a different situation. Penetration of satellite radio is relatively low, even given how young the technology is. Satellite radio has certain inherent restrictions, for example (although for all I know this is surmountable) there seems to be some difficulty in carrying local content. Most crucially, radio+satellite radio are inherently not replaceable by other media; radio is used in many contexts where it has effectively a captive audience. Television news is replaceable by the internet; someone could stop watching Fox TV and start reading vlogs from their Nintendo, without even leaving the couch. But internet sources cannot replace radio in the same way, because you cannot surf the web from a car. (I assume here, and oh God I hope my assumption is correct, that people are not using their iPhones while driving.) And radio, oddly enough, despite having a lot more spectrum available than television, is actually I've found much less diverse in ownership than television. The world has a much greater diversity of information sources than it did in 1983, but a guy stuck in freeway traffic sometimes actually has less.
(Now, I can imagine a world where WiMax or something like it blows up real big and people get localized streaming internet radio to units installed in their cars. But WiMax is taking years to get deployed in ANY fashion, and that's not the world we currently live in.)
Anyway, again, to be clear, I think a fairness doctrine (or other "content controls", as you put it), is just a bit of a red herring; it's a bad idea, whoever it was in Congress that suggested bringing it back is misguided, and they're unlikely to get much support. But the problem a fairness doctrine attempts to address is real, and government action to address this problem would be appropriate; it is just that the fairness doctrine is not the most effective or appropriate way to solve the problem.
Posted by: Coin | July 30, 2007 6:30 PM
This is just idle curiosity, but I wonder if the elimination of the fairness doctrine played even a small role in the Republican take over of Congress in '94. I mean we already have the impact of sun-belt migration and associated redistricting and more than a little gerrymandering. But I wonder, with the internet really in its toddler period (I wouldn't call it infancy), you only had a few news sources and in many areas talk radio was really big, I remember Milwaukee had perhaps 5 or 6 conservative talk radio stations in the early 90s.
Posted by: dogmeatib | July 30, 2007 7:29 PM
dogmeatlib:
More than one political observer has drawn a connection between the rise of right-wing talk radio - especially in local markets - and the Republican Congressional ascendancy. Most notably, David Brock, who as a former Republican was there on the inside. And it is a fact that there could not be such a thing as right-wing talk radio if the fairness doctrine had not been eliminated.
So I don't think you are far off.
By the way, your timeline is just a little incorrect. In 1985, when the fairness doctrine went away, the Internet was hardly functioning compared to what we have today. To say it was in its toddler stage at that time is a bit misleading. Of course, it grew almost unbelievably quickly, but only a few network geeks were in a position then to have forseen such a turn of events. I doubt that the right-wingers who were pushing to have the fairness doctrine eliminated had even the slightest clue.
Posted by: Poly | July 31, 2007 3:20 PM
If your argument for the fairness doctrine is "the lack of it leads to people being elected that I don't like", that's a staggeringly weak argument.
Posted by: Ed Brayton | July 31, 2007 3:53 PM
I really don't think "fairness" is the issue with today's news media. I don't care about the FOX news being "unfair." What I find distasteful and damaging is the dishonesty, inaccuracy, and distortion of the facts that they are allowed to pass off as "news." Yes, people should be personally responsible and stay informed on what is going on. But doesn't it ammount to false advertising to describe some of what goes on the air as "news?" I thought we had moved past relying solely on Caveat Emptor. I just think there is something wrong when you're allowed to lie through your teeth and call it news.
Posted by: Ben Messer | July 31, 2007 6:39 PM
Poly,
Actually I had two timelines there. First the initial change in legislation (mid 80's) second the early internet (early to mid 90's). Basically my hypothesis was that the two developments (plus sunbelt migration) created the '94 congressional takeover. Sorry for any confusion.
If your argument for the fairness doctrine is "the lack of it leads to people being elected that I don't like", that's a staggeringly weak argument.
I'm not sure who you're replying to Ed, but if it was me, my comment was more of a question to confirm an observation than a condemnation.
Posted by: dogmeatib | July 31, 2007 7:29 PM