Public airwaves, public censorship

The Democratic-run Congress is making noises again about reimposing the late and un-lamented Fairness Doctrine to achieve some sort of balance of opinions on broadcast radio and television. The move is pretty transparently motivated by the dominance conservative-leaning pundits enjoy on talk radio. After the relative failure of several attempts to establish a liberal presence of the nation's radio stations, Democratic legislators have turned to brandishing raw power as a fall-back position.

It's all justified, we're told, by the government's stewardship over electronic public property.

"These are public airwaves, and the public should be entitled to a fair presentation," said Sen. Dianne Feinstein (D-Calif.)

That sounds like a somewhat reasonable argument--until you remember that Congress originally seized control of the airwaves specifically to give government the power to regulate broadcast content. As noted law professor Eugene Volokh points out:

The Radio Act of 1927 authorized licensing decisions based on the content of the speech (despite its provision supposedly banning "censorship").

By 1930, the Federal Radio Commission was restricting what it saw as "propaganda stations," on the theory that "there is no place for a station catering to any group" (said in an opinion about a Chicago Federation of Labor station).

Modern members of Congress say they should control broadcast content because that content is transmitted over public airwaves, but their predecessors declared those airwaves to be "public" in order to gain the power to regulate content. The fact that broadcasters need government licenses to operate and so need to keep regulators happy, in stark contrast to print and Internet operations (which largely follow the print model) shows just how effective that tactic has been. The original nationalization of the airwaves was a self-serving power-grab, and there's no reason to accord it any legitimacy.

As Circuit Judge Williams the United States Court of Appeals for the District of Columbia wrote in his dissent in a motion for a rehearing in banc of the 1997 case of Time Warner v. FCC:

Further, the way in which the government came to assert a property interest in spectrum has obscured the problems raised by government monopoly ownership of an entire medium of communication. We would see rather serious First Amendment problems if the government used its power of eminent domain to become the only lawful supplier of newsprint and then sold the newsprint only to licensed persons, issuing the licenses only to persons that promised to use the newsprint for papers satisfying government-defined rules of content.

Unfortunately, Judge Williams's opinion was on the losing side in that case, but his point remains a good one and the problem he raises remains unresolved--or rather, it remains unrecognized as a problem by politicians happy to wield power over part of the press and a public to accustomed to this state of affairs to raise questions.

We don't need a Fairness Doctrine for broadcasters anymore than we need a censorship board for newspapers, magazines and Websites. More important, content regulation such as the Fairness Doctrine overtly violates individual free speech rights by making the expression of opinions subject to government regulation.