Why You Don’t Want To Restore The Fairness Doctrine

The idea of protecting the “public airwaves” is based on the idea that, because that space is “public,” anyone with an operating receiver can access it, including children, with no further payment or access mechanism needed.  The idea of not protecting private media in this way is based on the simple reality that you have to make a deliberate effort, and usually pay money, to access that content; your ten year old is not going to “accidentally” run into pornos on terrestrial radio or traditional television.  Once you’ve paid for the service, the thinking goes, it’s up to you – not the service provider – to take the steps to ensure your kids (or you, or whomever) can’t access objectionable content.  As an adult, you can choose to avoid that content; as a parent, you can employ an endless range of techniques to prevent your children from doing so.

It’s also well worth pointing out that the illegality of, for instance, child pornography or “snuff films” is not a function of FCC regulation but rather of other, existing laws.  Those things are illegal outside the jurisdiction of the federal communication commission, therefore there’s no need for the FCC to create additional regulation forbidding them.

The FCC has no power at all to regulate the content on privately owned networks.  They can’t tell HBO to not show boobs, they can’t tell your cable operator they’re not allowed to offer you “Resperm Of The Jedi.”  That would be an egregious violation of the First Amendment; constitutionally, you have a right to create that content, and to view it, whether anyone else thinks it’s worthwhile or not, as long as other laws aren’t being violated in the process.

This brings us to the difficult reality of fairness doctrine:  if you give the federal government the power to say Fox News can’t lie, you’re also giving them the power to say HBO can’t show nudity, or that I can’t criticize them on this website.  Constitutionally there’s no way to have one regulation without making the other possible.

While we’re shutting down misunderstandings, the Fairness Doctrine was not “repealed by Reagan.”  The FCC stopped enforcing it during the Reagan administration because it was patently unfair to terrestrial broadcasters; their ability to speak would be limited, but someone with enough money to make their own cable TV station (like Ted Turner and his then-emerging CNN) wouldn’t.  Now you’ve created a money = freedom paradigm, and that can’t work in a free country.  Any FCC rule created to regulate political speech would only apply to broadcast media – terrestrial radio and television, and the three “real” networks who actually own stations and distribute content to them.  It would remain a free-for-all for everyone else.

The Fairness Doctrine was formally repealed by the Obama administration, because it was archaic, useless, and out of date.