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Will Obama Revive the Fairness Doctrine?



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Those of us who fear a revival, directly or indirectly, of the Fairness Doctrine need to be aware of the following exchanges that occurred during the Senate Judiciary Committee’s January 15th confirmation hearing for Attorney General-Designate Eric Holder. The first comes from the senior Republican on the panel, Sen. Arlen Specter of Pennsylvania:

SPECTER:  Mr. Holder, there had been suggestions for a revival of the so-called Fairness Doctrine, and my question to you is do you think that as a matter of public policy, the so-called Fairness Doctrine ought to be reinstated?

HOLDER:  Senator, that’s a toughie. I’ve not given an awful lot of thought to. If I could perhaps submit an answer to you in writing, I would have an opportunity to think about that. I wouldn’t want to commit myself to something and not give you the benefit of what is my best thinking on that.

And this exchange occurred between Holder and Alabama Republican Jeff Sessions:

SESSIONS:  In an April 2004 speech to the American Constitution Society, a liberal group, you were at — where you asked the audience what it could do to bring about a liberal renaissance, which is a legitimate political effort to promote your beliefs.

And you singled out the media and criticized them for impeding liberal views and said, and quote, “In a short term, this will not be an easy task with the main stream media somewhat [cowed] by conservative critiques and the conservative media disseminating the news in anything but a fair and balanced manner.  And you know what I mean there. The means to reach the greatest number of people is not easily accessible.”

So, we do have this discussion of the fairness doctrine.  Do you think the government has the ability to interject itself in the free market of ideas and direct somehow that there’ll be a balance between one view and another view on the airways?

HOLDER:  Well, the views I was expressing there were views that I had, as a private citizen, would not reflect what I would do if I were to confirm as attorney general. What I said in response to the question have been raised earlier about the fairness doctrine was that I just needed to know more about it before I could intelligently response to the question, but I did not mean to implicate the fairness doctrine in that speech.

As is often the case, after the hearing these senators submitted written questions to Holder. Both Specter and Sessions once again raised the Fairness Doctrine, giving him another opportunity to clarify his response. Holder responded within the week and here is the actual exchange:

From Senator Specter:

SPECTER: The 1940s regulation that created the Fairness Doctrine was held to be unconstitutional by a 1986 decision of the Federal Communications Commission.  The Department of Justice reached the same conclusion in 1987 when it advised the President to veto a bill that would have codified the Fairness Doctrine by statute.  I voted to uphold the President’s veto.  Do you believe that a new law or regulation to re-impose the Fairness Doctrine contravenes the First Amendment? 
 

HOLDER: If such a law or regulation comes under consideration, in (sic) confirmed as Attorney General, I will work with other agencies in the new administration and the Department’s Office of Legal Counsel to reach a considered view about the constitutionality of the specific law or regulation under consideration.
 

SPECTER: In June 2004, you made a speech at a meeting of the American Constitution Society, which Sen. Sessions quoted at your hearing.  In the context of identifying the obstacles to persuading the American people to support a liberal policy and political agenda, you said:  “In the short term, this will not be an easy task. With the mainstream media cowered by conservative critics, and the conservative media disseminating the news in anything but a fair and balanced manner, and you know what I mean there, the means to reach the greatest number of people is not easily accessible.”  Can you assure the Committee that you will be apolitical and impartial concerning the Fairness Doctrine issue, despite the apparent bias reflected in these comments?
 

HOLDER: If confirmed, I will be fair and impartial about any issues related to the Fairness Doctrine, as well as all other issues that come before the Department of Justice.

And from Senator Sessions:

SESSIONS: At your hearing both Senator Specter and I asked about your views on the Fairness Doctrine, and you stated you had not considered the issue.  Now that you have had the opportunity to review the issue more fully, would you support such a policy?  Would it be constitutional?

HOLDER: If a law or regulation is enacted that seeks to implement some version of the fairness doctrine, I will work with other agencies in the new administration and the Department’s Office of Legal Counsel to reach a considered view about the constitutionality of the specific law or regulation under consideration.

Holder’s evasive responses represent the first hint that the new Administration may re-open what has been “settled doctrine” within the Department of Justice and in the courts for over two decades; namely, that the old Fairness Doctrine is an unconstitutional restraint on free speech. Not to mention that the original argument used to justify these restrictions–that the scarcity of media outlets required the government to intervene in order to guarantee a “diversity” of political opinion–has long since been overwhelmed by the proliferation of cable channels, web sites, blogs, and so on.

Perhaps for these reasons, liberals want to avoid frontal assaults on this most tarnished of Doctrines. So they advocate burdening broadcasters with “public interest obligations,” the satisfaction of which will accomplish the same unconstitutional end. Broadcasters, for example, would be required to meet mind-numbing “community service” broadcasting requirements that would effectively crowd out time for popular conservative talk radio hosts.

The bottom line is beware–and stay tuned to your favorite talk radio host for further details!



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