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Thursday, February 12, 2009

CRS Report on History of Fairness Doctrine
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Here's some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:

It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters' speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny.


Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters' speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.

But it most certainly would not pass muster is applied to cable or satellite:

It does not appear that the Fairness Doctrine may be applied constitutionally to cable or satellite service providers. The Supreme Court has held that content-based restrictions on the speech of cable and satellite providers are subject to strict scrutiny. Strict scrutiny requires that the restriction at issue advance a compelling government interest and that the restriction be the least restrictive means of achieving that interest.

Content-based regulations of speech in the print media are accorded strict scrutiny. The Supreme Court has recognized that regulations similar to the Fairness Doctrine, when applied to the print media, are not constitutional. If regulations similar to the Fairness Doctrine could not withstand strict scrutiny when applied to the print media, it appears unlikely that similar regulations would withstand such scrutiny when applied to cable or satellite providers.

Complete report is embedded below as a Scribd document.

CRS Fairness Doctrine Report

posted by Adam Thierer @ 7:36 PM | Free Speech , Mass Media

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Written: 2/11/09

How about we apply the so called Fairness Doctrine to radio, television and government? This is only fair, isn’t it? During deliberations between the Senate and House of Representatives in which they compromise on a bill having passed both houses, there must be, according to the Fairness Doctrine, equal numbers of all parties, i.e., Green Party, Democrat Party, Independent Party, Republican Party, etcetera, represented. Where political parties have a limited number of representatives, such as the Green Party, at least one representative should be present. However it is handled, an equal amount of opposing thoughts should be represented during compromise sessions between the Senate and the House of Representatives.

How would Congress react to passing a so called "Fairness Doctrine" bill like this? Are you kidding? There isn’t a chance in God’s universe that this would even come up as a thought, much less a second thought. Standards do not apply to Congress, nay, any part of America’s Republic form of Government, not even the Supreme Court. Why? Because fairness cannot be legislated by/to/for anyone, government not withstanding. Prime examples of this can be found in the Roe vs. Wade case and the former Fairness Doctrine legislation enacted during the later part of the 20th century, which where both overturned.

So, who has a say in what is fair? You do. Every time you turn on the radio, television, the Internet, you have the right of choice to turn the channel; you have the right to write your Congressman/Congresswoman; you have the right to call your television program provider; you have the right to write, call, email, fax, protest for/against, boycott, and the list goes on, and on, and on.

Only you can initiate change and your own sense of fairness by combining forces with organizations, conservative or liberal, such as the ongoing attempt to bolster Air America to combat conservative talk shows. Have at it. No one is stopping you from forming your own organization to combat any number of ideas contrary to your own.

Recently that stimulus money earmarked for A.C.O.R.N. was taken out or lowered during the compromise session that went late into the night yesterday between the Houses of Congress. Funny, how irritated Democrats would try to delay a vote until Friday because they can’t give money to A.C.O.R.N. This, an organization which would register the poorest of the poor, the most uneducated, uninformed citizens, and undocumented peoples (some of whom don’t exist and/or have been dead for decades) to vote in local, state and national elections.

A.C.O.R.N. is commonly acknowledged to be a "liberal" organization. Are they shoving this funding down America's throat to counter the influence of conservative talk radio and television on both casual and die-hard listeners? Sounds to me like the so called Fairness Doctrine is already in play under the guise of “stimulus”.

How about we apply the so called Fairness Doctrine to the Republic of the United States government and see how long that lasts? I doubt it’ll work. Perhaps, the best way to achieve change in fairness is to get up and get active in our communities, because no law is going to make things "fair" in any sense of the word.

Posted by: Scott at February 13, 2009 5:54 PM

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