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 Upheld in a dubious Supreme Court decision in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), and repealed by the Reagan-controlled FCC in 1987, the fairness doctrine was a rule of formal equality: it mandated “fair and balanced” coverage, in a legal rather than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.