Just Us as Fairness

The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV and radio.

So wrote the late Supreme Court Justice William O. Douglas. Douglas, it is fair to say, was not George F. Will's (or my) favorite Supreme Court justice, but Will quotes him in his latest column (hat tip to memeorandum) attacking renewed efforts from the Left to reinstate the Fairness Doctrine. Only today such a doctrine would necessarily attempt to regulate not only broadcast media but cable, satellite and internet communications, as well. Justice Douglas would not be pleased. Neither should you.

The observation is almost as old as the phenomenon, itself, but government takes on responsibilities and the power required to meet them when the private sector is unable or believed unable to get the job done. Thus, the means of (interstate) commerce, e.g., roads and postal services, were once thought the proper province of government because such tasks were too daunting or unprofitable to be performed by the private sector. That is not, of course, the only rationale for government action; the interstate highway system was promoted for, among other reasons, purposes of national defense.

Still, roads aside for now, one would be hard pressed to justify the continued existence of the U.S. Postal Service on grounds that no private company is capable of or willing to deliver mail. (No company may be willing to do so at a loss or to deliver a letter from North Dakota to South Carolina at the same price as a letter going crosstown in Manhattan, but that's a different matter.) But, whatever the original rationale, government does not willingly give up power once it is given to it regardless of the lack of usefulness or even the greater harm caused by its retention.

Anyway, the original Fairness Doctrine derived from a similar notion, indeed, from the notion that served to justify the Federal Communications Commission in the first place; namely, the notion that the broadcast spectrum "airwaves" were and are "public property" and that they are "scarce," hence in need of public (i.e., federal) regulation. Never mind that all resources are scarce, at least a facial case could be made given the state of the art of broadcast technology in the early decades of radio and television that some sort of regulating was necessary. Moreover, the rise of the major television networks in an age when they enjoyed the absence of non-broadcast competition did plausibly lead to the conclusion that they wielded an inordinate amount of potential power and influence in the public's access to news and information.

But whatever the strengths or weaknesses of those arguments were then, they simply do not apply today any more that the notion of a USPS as a necessary artificial monopoly makes sense today. As with campaign financing "reform," those like Howard Dean who "believe we need to re-regulate the media," believe this not because they think the abundance of sources of news and information deprives the public of adequate choices but because they do not like the choices the public has been making.

This is the sense of "fairness" that contends not that all political views and all political candidates should be given equal air time; there is no groundswell of support among either Republicans or Democrats for more airtime for Lyndon LaRouche or for Nazis or the Ku Klux Klan or even for the Green Party. Here "fairness" means that as between the Tweedledum and Tweedledee Parties it is unfair to the Dees whenever the Dums get too much media access and vice versa. "Too much," of course, means too much private access, which usually means too much private money but can, in a pinch, mean simply too much of what money can buy but the government simply forces the seller to give away.

But no one is forced to watch or listen to Rush Limbaugh, Jon Stewart or Katie Couric, at least two of whom are successful faux journalists (obviously, no one was forced to listen to Air America, either), and no one is forced to contribute money or spend his own money on air time or print space or whatever and no one is guaranteed access to such media unless and until the government mandates it.

Like the "separation of church and state," the "marketplace of ideas" is one of those clichés that sounds good on first blush but doesn't really hold up under closer inspection. Ideas are not bought and sold, don't have decreasing marginal utility as every new idea is added and, while the supply of good ideas is always scarce, the demand is perennially lower than it should be. In the political realm, in any case, advocates of re-regulating media to ensure "fairness" haven't the slightest interest in a marketplace of ideas. Like the ABC, NBC and CBS of thirty years ago, the last thing they want to see is the cable and satellite guys knocking at your door.

(Semi-obscure title reference here.)