FCC Commissioner Robert McDowell has reminded Democrats that their Fairness Doctrine gambit may backfire and see them lose all existing leverage over radio and television programming.
In a string of media cases stretching back over more than 20 years, various judges on the D.C. Circuit – both Democratic and Republican appointees – have suggested that it is time for the Supreme Court to rethink the concept of spectrum scarcity as a justification for limiting broadcasters’ First Amendment rights. A revived Doctrine would provide a big, bright bulls-eye for those who wish to make that happen. That development would have implications far beyond the Doctrine itself. Much of our content regulation of broadcasters – including most of the FCC’s existing localism rules and the regulations requiring three hours a week of children’s programming – rest on the spectrum scarcity rationale. If that rationale is invalidated, serious legal challenges to all those other content rules may follow.
Although that’s the most optimistic perspective I’ve heard on the Fairness Doctrine for a while, it is still probably foolish to count on the Supreme Court protecting free speech. Remember that George W. Bush’s squishy rationale for signing campaign finance reform was that he was counting on the court to bail him out and invalidate the whole thing on constitutional grounds. Said Bush at the time:
The bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections. I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.
The court didn’t agree, and now we’re stuck with censored election speech.
McDowell also included this warning:
Certain legal commentators have suggested that a new corollary of the Doctrine should be fashioned for the Internet, on the theory that web surfers should be exposed to topics and views that they have not chosen for themselves.
As traditional media lose audience and relevance, politicians will need to exercise a lot of self control to keep their hands off the Internet. I don’t think they’ll be able to do it.