Democracy in America: the Fairness Doctrine and the Expensive Marketplace of Ideas

Knowledge and access to knowledge are the predicate requirements for any democracy to survive. The very natures of democracy and popular sovereignty demand that the people be informed of the facts, so that the people may govern. Despite a modern anti-intellectual and anti-elitist trend, democracy assumes and requires that the people are all elite, all intellectual, and all informed, typically by a responsible media, the Fourth Estate of any republic. The first amendment is typically the vanguard of this requirement – by providing easy access to vigorous debate – but there’s good reason to believe the first amendment has failed us. While there has been debate on the subject of how to restore… umm… debate, as one would expect of a failed marketplace, it hasn’t been very good. It’s time to reevaluate.

If you – like me – ever make it over to the conservative side of the interconnected series of tubes, you’ll notice that the “fairness doctrine” is a routine source of discussion. The “fairness doctrine” was a product of the early age of broadcast television and radio, and required that “discussion of public issues be presented on broadcast stations, and that each side of those issues… be given fair coverage.” The doctrine also allowed a right of reply, by which, if a public figure were attacked on the air, the individual was given free airtime to reply. Upheld in a dubious Supreme Court decision in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), and repealed by the Reagan-controlled FCC in 1987, the fairness doctrine was a rule of formal equality: it mandated “fair and balanced” coverage, in a legal rather than imaginary Hannity and Colmes fashion. Owing to its requirement of equality, our friend Limbaugh could never have existed under the fairness doctrine regime. The fairness doctrine can fairly be said to have traded away partisan debate and commercial potential for sterile – albeit educational – objectivity. All this would be merely anecdotal, except for the fact that, as the media has come under increasing scrutiny, lawmakers have debated restoring the fairness doctrine, thus tightening government regulation of the airwaves once again. Since this restoration would endanger right-wing dominated talk radio, a creature of the post-fairness doctrine era, conservative websites are worried.

But disproportionately so. To listen to conservative pundits like the American Spectator or Human Events, you’d imagine that the fairness doctrine was not only at the top of the future Obama administration’s “to do” list, but also a viable constitutional option. Neither is true.

Although the fairness doctrine has previously been held constitutional, the law has developed away from that point of view. In the enduring debate between the partisans of Justices Holmes and Brandeis – who, respectively, clashed over whether the first amendment required an unregulated marketplace of ideas, or a well-governed “deliberative process,” protected by reasonable regulation – Justice Holmes and his conception of the unregulated free marketplace of ideas won out, spelling death for any renewed fairness doctrine. Especially since the Justices have shown their willingness to consider the partisan benefits of adopting a specific first amendment point of view (think Justice Robers in Wisconsin Right to Life v. FEC), the current Roberts Court would not depart from that settled consensus, and any future Supreme Court could only do so if it felt prepared to completely reinvent the modern first amendment. No; the fairness doctrine isn’t coming back. Any fearmongering on the conservative side of the tubes is only the result of an overgrown persecution complex.

This is not to say, however, that the first amendment does not need reinventing. Of course, here we enter the realm of speculation and idle dreaming, but hey, somebody’s got to do it. The problem with the modern first amendment is that the “free marketplace of ideas” – which first amendment doctrine now bends over backwards to protect – no longer works. The power of the “free marketplace” to inform, educate, and power a democracy depends upon the ability of the citizen to freely enter the marketplace, and depends upon the assumption that good ideas will beat bad ideas any day of the week, in the marketplace. In a world of media consolidations, where a supermajority of news outlets, print and otherwise, are owned by just a few companies, many of whom have disclosed partisan agenda, there is no longer any place for the individual citizen, and there is no guarantee that an outsider idea which may be objectively true and better will rise above the set agenda of the mainstream.

No-one seriously disputes the problems of media consolidation. The best the other side can muster is statistics from twenty years ago – “from 1985 to 1995 the top ten media companies went from raking in 38 percent of media revenue to 41 percent,” says the Spectator – and assurances that the internet will solve everything. While the internet may help the common pleb get access to a listening populace (you, dear reader, are proof positive of that much), it has failed to overcome the sheer might of media monsters in the ability to force a message through. Most importantly, the consolidation of the media often includes the internet media. And, of course, most people still get their news from TV and radio, not from the internet: blog readers and blog writers, no offense, are mostly latte-drinking, college-educated types. The internet is not yet a first amendment panacea; perhaps with a better educational system, and a populace more invested in it (as in, wait twenty years), it will be. But it cannot yet be asked to do the democracy-making informational work of the entire media industry.

A consolidated media is a complacent media, easily led by entrenched government against an unwary populace. We need look no farther than the Iraq War to see this much: from all sides of the spectrum, even from those who were doing the deluding in the first place, we hear the media roundly criticized for flipping over and playing dead when faced with an aggressive administration. Coupled with the continual catering to rumors over real news, can anyone doubt that unregulated marketplace has failed? So long as the dollar remains the only influence over the marketplace, a problem exaggerated by consolidation, it’s not likely to change.

But what can be done? I do not think the fairness doctrine would go very far in repairing the damaged media. And, as much as I hate people like Michael Savage, he serves his place, and the loss of conservative talk radio and liberal comedy news shows to network rules would be too high a price to pay. I do think that media consolidation rules would help, along with possibly requiring set-asides for legitimate point/counterpoint news hours during primetime. Importing a more vigorously partisan culture, and inculcating a theater of politics, such as inventing our own “prime minister’s questions,” would also serve the purpose of informing the people at minimal cost to our first amendment freedoms. I don’t know what, but something must be done.

Nor do I purport to jive this goal with current first amendment doctrine. If anything, that’s a task for another day. But since we justify our current view on that amendment on the conviction that the marketplace works, we ought to recognize that, now, it no longer does. And maybe we should re-evaluate the worth of just one paragraph from Red Lion:

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.

Even if it got the fairness doctrine wrong, perhaps it got the first amendment right.



  1. Gotchaye · ·

    Very interesting. The one concern I have is that there might be another explanation for this tendency that we see in the media, and it’s one that’s much harder to address. Thoughtlessness in the media is very much exacerbated by the corporatization of speech, but what does independent reporting really get for us?

    If the ultimate goal is an informed and politically aware population of voters, then I don’t think this is going to do it. Simply put, the real problem is that the people just don’t want to govern.

    As the mainstream media has become useless for meaningful coverage of politics, the number of voters with a say in important political decisions has increased tremendously. To take the extremes, it is now the case that the constituency for most important political issues is every voting US citizen (something like, what, 40m people?). Early on in the country’s history, by contrast, the population was much smaller, most important decisions were handled on a local level, and one had to meet several qualifications to vote (race, property, gender, etc).

    This is why it’s hard for me to blame the media for the US’ lack of an informed and engaged public. It’s simply no longer rational for an individual to make any effort to think about what to vote for. When you’re one of a few dozen landowners who get to set policy for all of Virginia, you’ve got plenty of reason to figure out what’s best for you. When you’re one of tens of millions of US citizens trying to set policy for the whole country, why bother? The most efficient strategy is to only pay attention to the bits that you find particularly interesting and to just go with one’s gut on the actual issues. Voting is now much more about a psychological reward than it is about determining national policy, and the individual voter is essentially entirely divorced from the objective consequences of his vote.

    I think that the only way to get people engaged again is to let smaller groups make important decisions, but strong federalism is simply not feasible in the modern world. You can put intelligent voices on television, but my feeling is that they’ll just be ignored.

    Also, Ames, you sent me a very excited email and I sent you one back wherein I exposed the depths of my soul. Thus far, you have ignored me, and it hurts.

  2. I have never maintained that I’m good at correspondence. But I’ve since replied :-)

  3. Gotchaye · ·

    I should point out that I had an experience about three weeks ago that absolutely destroyed my faith in all mankind’s ability to weigh evidence and reach rational conclusions, so that might be coloring this just a bit.

  4. Gotchaye · ·

    Strange, it looks like I never received that.

  5. What was that?

  6. Gotchaye · ·

    Ah, there it is.

    I was visiting a childhood friend of mine, and it was just incredibly apparent that he was entirely incapable of rational thought, and that he wasn’t alone. There’s so much that I just take for granted about what people can do that just wasn’t present in the slightest. Topics of discussion were pretty wide-ranging, but here are two of the highlights:

    In talking about who was likely to win in the ’08 election, he didn’t understand why I was being so ‘combative’ (he meant that I was offering additional reasons and explaining why I disagreed with his arguments), since he “already had an opinion so it’s not like all this stuff could change it”.

    In looking at how some video game systems were selling, he just didn’t see how it was at all relevant to the discussion that every previous video game system in history had followed a certain pattern, nor did he understand why it was a problem for his argument (that something would happen in a year) that he would have made the same argument a year ago (and been fantastically wrong) or the year before that.

  7. Alas :(. I ttake it McCain has another voter then?

    Incdentally, did you ever join the battle against conservapedia? I, you might say, grew weary of battling sauron, and sought the Havens a month or two ago :-), so I’m out of the loop there…

  8. I think don’t think the First Amendment has really failed like you imply, but maybe that’s just because my expectations are much lower.

    I don’t think we’re ever going to have a society where millions of voters carefully consider issues and leadership resumes and, after carefully considering conflicting expert opinions on each topic, make a thoughtful and reasoned decision. People vote for the candidate who is taller, or has their accent, or is the one who isn’t just faking their affinity for hunting…

    Now, that vast majority of people is easily influenced by media coverage, and that media is always going to be the mass-market, industrialized media – even if it shifts to the internet eventually, it won’t be the thought out conversation that your ideal world of blogs might be.

    There is, however, a smaller group of people who is reasonably well-educated, follows the news, cares about issues, etc. They search out what they consider to be fair news and opinions worth thinking about, and that, barring extreme measures, will always be available in a reasonably accessible way for people who care to look.

    As long as the group controlling the larger media is reasonably diverse and chosen reasonably randomly – in particular not chosen by the government – they will reflect (very imperfectly) the beliefs of that educated and tuned-in group. This isn’t enough to guarantee good decisions on everything, but I think it is enough to make sure that once the general intellectual/alert/whatever class comes to widespread agreement on something, it’ll happen.

    That’s not a huge accomplishment, but it’s enough to prevent an end to democracy, check extreme abuses, etc. As long as exposing bribery of a senator can make a journalist’s career, we’ll be in good shape, and I think the class of people who care about that journalism is large enough to guarantee that it will continue to exist in a substantial way, even if dwarfed by the News Corps of the world.

  9. Am I right in assuming this may be a possible contender for the next CEB? If so, I won’t link to it. But I really want to!

  10. Yeah buddy! I think it’s CEB material, I was going to submit it to you today :-). When is the next one?

  11. […] and intelligent design have utterly washed out of the marketplace of scientific ideas (which, unlike the media marketplace, seems to be functioning fine), and he likens any legislatively imposed requirement to teach […]

  12. I saw! I am indeed honored! I’ll be over there to comment later :-)

  13. Incdentally, did you ever join the battle against conservapedia? I, you might say, grew weary of battling sauron, and sought the Havens a month or two ago :-), so I’m out of the loop there…

    So that’s where you went. I was wondering why absented us. With you and PalMD gone, RationalWiki seems… emptier (despite the sudden influx of new arrivals). Will you ever come back? : (

  14. […] commercialized media, as I’ve argued before, threatens the utter subversion of the marketplace of ideas. If networks are rewarded for pandering to a demographic (*coughcough* Faux News), the exchange of […]

  15. […] disagree to what degree it’s in trouble, I will agree with Palin that the media is, in fact, in dire need of repair. But not because they’re willing to call a spade a […]

  16. […] complex. Hence persistent conservative obsession with the “Fairness Doctrine,” despite the doctrine’s illegality and President-Elect Obama’s stated unwillingness to pursue it. Talk radio is primarily about […]

  17. […] Doctrine has been dead in legal circles for years, at least since its democratic repeal in 1987. It’s not coming […]

  18. […] complex. Hence persistent conservative obsession with the “Fairness Doctrine,” despite the doctrine’s illegality and President-Elect Obama’s stated unwillingness to pursue it. Talk radio is primarily about […]

  19. […] commercialized media, as I’ve argued before, threatens the utter subversion of the marketplace of ideas. If networks are rewarded for pandering to a demographic (*coughcough* Faux News), the exchange of […]

  20. […] of the right, the Fairness Doctrine, is a non-starter. Apart from being political suicide and presumptively unconstitutional, the Fairness Doctrine is, by this time, impractical at the network-by-network level, and […]

  21. […] for sacrificing quality in favor of quantity of dialogue. Sometimes that’s a good idea, even if it breaks down in the context of modern media, but combined with this country’s almost insurmountably high standard for privacy torts […]

  22. […] There’s not inconsiderable evidence that we’re worse off for that, too. Narrow presentation of major political issues follows as a direct consequence of the narrow media options. The Obama administration can be forgiven, then, for thinking of ways to salvage the admitted public value of independent newspapers, and investigative journalism as a concept, but — and on this, Hot Air comes close to being right on something (ugh) — that’s all for naught if a valuable medium has to take government money to maintain its existence. Those and similar suggestions in a recent FTC working paper on the subject (pdf) will have to go. But others are worth considering — tax breaks to news organizations, for one, where balanced with a serious second look at market consolidation rules, could encourage new, independent, and competitive news entities, to counter the monopolistic and anti-intellectual power of media monoliths. This will mean making peace with the somewhat counterintuitive notion that government regulation over the processes of content production can, when done properly, validate capitalist values like competition, thus energizing the national discourse while undermining and de-necessitating actual government control over the substance of the media. After all, no-one actually wants content regulation. […]

  23. […] as drown out other participants in the “marketplace of ideas” is the greatest threat to the philosophical underpinnings of the First Amendment, and one we truly can’t afford to ignore. The “search for […]

%d bloggers like this: