Senator Bingaman's unfair attack on free speech

Here's a quick question for you: What regulation was it that Supreme Court Justice William O. Douglas once wrote "has no place in our First Amendment regime"?

If you answered, "the Fairness Doctrine," you win a gold star! Douglas was speaking of the old FCC rule that, as put by the Museum of Broadcast Communications, was an "attempt to ensure that all coverage of controversial issues by a broadcast station be balanced and fair." In effect, one opinion could not be presented in coverage of political issues without presenting enough opposing views to satisfy regulators.

Not surprisingly, journalists found it a bit much to have bureaucrats second-guessing their news judgment and the way they presented arguments. Justice Douglas agreed. The expanded quote, from Douglas's concurring opinion in Columbia Broadcasting System Inc. v Democratic National Committee, is:

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 or radio in order to serve its sordid or its benevolent ends. ...Under our Bill of Rights people are entitled to have extreme ideas, silly ideas, partisan ideas. The same is true, I believe, of TV and radio.

Douglas went on to say, explicitly, "My conclusion is that TV and radio stand in the same protected position under the First Amendment as do newspapers and magazines."

I quote a 35-year-old Supreme Court opinion about a two-decades-gone government effort to censor the political content of radio and TV broadcasts because some politicians want to bring that moth-eaten rule back in order to muzzle media critics they find annoying. Those "some politicians" include New Mexico Senator Jeff Bingaman who, while being interviewed on 770 KKOB Radio, told host Jim Villanucci that the government's old controls on broadcast content should be revived and put into full effect.

Bingaman's opinion of the proper role of media doesn't seem to be confined to radio and television. Note that he says, "radio, and media generally, should have a higher calling than just to reflect a particular point of view." He's pretty comfortable with the idea that he should be able to dictate the way independent media outlets do their jobs and cover his performance in office. But Bingaman's authority, for now, is confined to broadcast media -- at least until the Supreme Court full endorses Justice Douglas's view that the First Amendment shields radio and television as much as newspapers from the whims of senators.

It might be easier to debate the issue with Bingaman if he more clearly knew what he was talking about -- or at least was honest about what he knows. He says "there was a a lot of talk" under the old Fairness Doctrine, apparently claiming that reimposing the doctrine might transform media without hurting its bottom line. But talk radio is really a phenomenon of the repeal of censorship. After the Fairness Doctrine was dumped, the number of talk stations tripled to about 1,400. The reason should be clear: When the government regulates what you can say, it becomes safer to say nothing.

Nat Hentoff, the prominent writer and civil liberties advocate, described his own ordeal under the old restrictions:

I was in radio under the reign of the Fairness Doctrine, at WMEX in Boston in the 1940s and early 50s. We did not have any of the present-day contentious talk radio shows, but we covered politics and politicians. I was often the announcer for the mellifluous appearance of the legendary James Michael Curley (played by Spencer Tracy in The Last Hurrah). And we did offer political opinions on the air. I, for example, did so on my jazz and folk music programs.

Suddenly, Fairness Doctrine letters started coming from the FCC and our station’s front office panicked. Lawyers had to be summoned; tapes of the accused broadcasters had to be examined with extreme care; voluminous responses had to be prepared and sent. After a few of these FCC letters, our boss announced that there would be no more controversy of any sort on WMEX. We had been muzzled.

Hentoff, a man of the political left, argues that much of the push for a revived Fairness Doctrine is to achieve just such a political muzzling

Those rallying for the return of the Fairness Doctrine believe that politically incorrect speech must be “balanced” by law --- which is to say, by government. Thereby they fondly envision the curbing of the speech of Rush Limbaugh, Sean Hannity, Ann Coulter, Matt Drudge, Laura Ingraham, Bill O’Reilly and others who they say are “eroding” American democracy. And arguing this, it is as if they thing that the speech of the authors of Off Center --- or of Al Franken, Michael Moore, Cindy Sheehan, political scientists Barbra Streisand and Whoopi Goldberg, and the bankrollers of MoveOn.org --- are not heard enough today!

Hentoff's take is not an unreasonable assumption when Sen. Dianne Feinstein explicitly complains, "Talk radio tends to be one-sided." Well, yes, opinion journalists do tend to state their opinions. That's true of Rush Limbaugh as much as Keith Olbermann. But talk radio has caught on with conservative listeners without ever really finding an equivalent following among liberals. So targeting broadcast media, which includes talk radio ...

Yes, reviving the Fairness would almost certainly stifle more voices on the right than on the left.

But it doesn't really matter who would be muzzled. What should matter to everybody is that politicians are trying to gag critics of any sort. The last thing politicians who wield vast power need is to face fewer critical voices.