Fairness Doctrine and the Obama Transition

Some left-leaning activists and politicians have openly declared support for reviving the Fairness Doctrine, a draconian speech restriction dismantled over 20 years ago. President-elect Obama has said he does not support reviving the Fairness Doctrine through legislative action. However, Obama’s FCC appointees could use FCC regulations to achieve similar goals of Fairness Doctrine supporters.

David Rittgers posted an extensive background and look-ahead on the Fairness Doctrine at the Cato Institute’s blog and conservative bloggers are debating how Congress and the executive branch might approach the issue. Blogs on the left are muted and split on the Fairness Doctrine. The Internet was used as a powerful communication and organization tool by Obama and Democrats in the election, and there’s not widespread concern among progressive activists that they are voiceless (compared to concerns on the left about talk radio a decade ago).

Not long ago, several Congressional Democrats called for a return to the Fairness Doctrine.

"It’s time to reinstitute the Fairness Doctrine," said Senate Majority Whip Dick Durbin (D-Ill.) in a 2007 interview with The Hill. "I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision."

The issue melted into obscurity before the election with the financial crisis and other issues sucking up most of the political oxygen Obama isn’t likely to waste political capital on Fairness Doctrine legislation in the foreseeable future. The battle is likely to be in the FCC and, potentially, the courts.

Rittgers succinctly points to the three reasons why Fairness Doctrine revival probably won’t succeed (improvements in technology, effect of restricting speech and U.S. Supreme Court composition). First Amendment advocates can’t rest easy, though. Obama appointees to the FCC could use regulatory tactics to control broadcast speech.

To pursue that regulatory route, Obama would need to tweak the composition of the FCC, which has five commissioners:

Michael Copps, Democrat; term expires December 2009

Jonathan Adelstein, Democrat; term expires June 2009

Robert McDowell, Republican; term expires June 2009

Chairman Kevin Martin, Republican; term expires April 2011

Deborah Taylor Tate, Republican; term expires at the end of the 110th Congress (December 2008)

Only three commissioners may be members of the same political party. President-elect Obama will designate the FCC commissioner. Obama will have a significant opportunity to influence the FCC in Janurary, when he appoints Tate’s replacement an in July 2009 (after McDowell’s term expires at the end of June). It’s likely that Chairman Martin (and possibly other commissioners) may resign and pursue an opportunity in the private sector.

How might the FCC effectively bring back the Fairness Doctrine? By using their powers of enforcement and regulation to demand stations adhere to certain standards (local ownership, minority-ownership quotas, etc.). In short: by creating a larger role for government in broadcast media.

Obama has provided few signals for how he might approach FCC policy on the Fairness Doctrine. The leaders of Obama’s FCC review transition team are Susan Crawford, a law professor at the University of Michigan, and Ken Werbach, an assistant professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School, is the other FCC review team lead. Werbach formerly served as counsel for new technology policy at the FCC.

We’ve come a long way since 1987, the last year the speech police patrolled the airwaves in order to uphold "fairness." With the widespread use of Internet communication, the proliferation of cable and other communications advances, there’s no logical reason for the Fairness Doctrine to reemerge. That doesn’t mean anti-speech activists won’t try. First Amendment supporters should remain vigilant.

NOTE: This post was updated from an original version. 

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