Barron symposium, Panel 1

Access and the Regulatory State

C. Thomas Dienes, George Washington University Law School

Barron’s article: Private censorship was skewing the marketplace as much as government censorship could, undermining democracy. Barron argued for a (constitutional/statutory) right of access to raise important issues. The Fairness Doctrine began in the 1920s as a way to respond to “propaganda radio.” In 1949 the FCC formalized it. (1) Broadcast licensees are required to cover important, controversial issues of interest to the community and (2) required to offer contending views on those issues. No one got an individual right to talk – it’s a Meiklejohnian conception of letting all important things be said, not letting everyone say them. Later, the FCC added a right of reply to personal attacks. Red Lion upheld these rules on scarcity rationales, and also because the Court focused not on the First Amendment rights of editors and broadcasters but on the First Amendment rights of viewers and listeners.

But then the tide turned, and in Miami Herald v. Tornillo the Court struck down a newspaper right of reply statute on the ground that the cost to the papers would promote self-censorship, and that editors should be autonomous. And then in 1987 the FCC abolished the Fairness Doctrine, with the personal attack rules following thereafter. Scarcity, the FCC thought, was no longer a problem. Earlier this year, there were reports that Congress was interested in reviving the doctrine to counter conservative talk radio. The backlash overwhelmed the hints of an interest.

We’re here today to talk about the fairness doctrine for the 21^st century.

Gregory P. Magarian, Villanova University School of Law

Substantive media regulation formed only a part of Barron’s vision; the fairness doctrine just happened to overlap with many of his concerns, and he defended it only in a nuanced way. It’s far from a complete solution.

Descriptive disagreements: The justification for the fairness doctrine: the general public interest in exposure to matters of public importance. Defenders tended to look with favor on the FCC’s actions in practice, though there were criticisms of the FCC’s timidity. Opponents were skeptical of the idea of a public interest – and thus of regulatory regimes generally, of course – and they pointed to some significant examples of regulatory capture. The Red Lion case resulted from a complaint largely engineered by the Democratic Party, while Nixon also tried to use the FCC against critics.

Whose autonomy does the fairness doctrine constrain? Barron argued that the constraint was on the money – wealthy media concerns with ideological agendas would advance them and exclude/marginalize opposing ideas. Advertising in particular was of concern; the fairness doctrine stopped money pressures from skewing debate. Opponents said those who bore the brunt of the doctrine were editors and journalists, making decisions about what to say (or not). Opponents drew on the democratic traditions underlying the theory of the fairness doctrine – journalistic autonomy is essential for a functioning democracy. Journalists also have professional norms to do the work the fairness doctrine sets out to do.

The proponents always made modest claims: the fairness doctrine will do some good. But they had to deal with the bifurcation of media into regulated broadcast and unregulated print, which was the post-Tornillo situation. Bollinger attempted to deal with this, arguing that we don’t know whether regulation is helpful, but there’s no way to avoid the question of what’s best for democracy. So maybe it’s helpful to have two different approaches in action.

Opponents had three main objections to the claim that the doctrine was helpful. First, there are difficult line-drawing problems – what’s a public issue? What’s fair? – so it’s almost impossible for the FCC to enforce it coherently. Second, they argued that the doctrine chilled the discussion it was supposed to produce, since the FCC almost never enforced the coverage mandate. Since you wouldn’t be called to account for not covering events, but could for covering them unequally, you should stay far away from public events. Third, opponents attacked the scarcity rationale for bifurcating the regulatory regime.

There are ways to address these concerns, for example by restricting the ability of non-FCC government officials to start the enforcement process.

Descriptively, there is reason to have a fairness doctrine: In the 40 years since Barron’s article, the economic pressure on the media industry has grown so great that it’s fair to say that the money runs roughshod over journalistic methods. The internal self-regulatory mechanisms have been nearly eviscerated. One thought would be to give journalists and editors rights against economic pressure that compromises them – we could make that a reason, or even the only reason, for invoking the doctrine in enforcement actions.

Objectivity and balance are difficult, if not impossible, to achieve through regulation, and are likely to produce a bland center. Instead, renewing the fairness doctrine should focus on debate itself – don’t necessarily make Rush Limbaugh debate liberals, but make the social conservatives debate the economic conservatives, engaging them in the thought process of debate instead of received wisdom. Another possibility: try to use the broadcast media as a way of creating a centerpost counteracting the internet’s pluralizing tendencies.

The fairness doctrine did significantly more good than harm; we need to think about reconstructing that good, getting the mass media to serve the interests of the public.

C. Edwin Baker, University of Pennsylvania Law School

Barron got the crucial issue right. But a renewal of the fairness doctrine would be harmful, and efforts to do so would divert attention from better progressive reforms.

The fairness doctrine was ideologically biased; it deterred valuable speech; it lacked a theoretical standard, making enforcement arbitrary.

The ideology of inclusiveness and balance over partisanship is an ideology. And how do we know what is a controversial idea in need of fairness? Smoking ads became controversial when the Surgeon General issued his report, but they weren’t before. This orientation towards dominant views is central to the fairness doctrine. What is balance? E.g., a balanced debate about the Sandinistas in the 1980s: The Republicans said we should take them down by force, the Democrats said we should use peaceful means. This is balance?

Ellen P. Goodman, Rutgers School of Law

Media flows from the physical transmission layer (broadcast, cable) to the content layer (programming) to meaning/salience. For communication to count, it has to be marked as salient and received by the audience. In the broadcast era, controlling the physical transmission layer meant control of the rest of the cycle, because audience attention was concentrated on broadcast content.

Salience is scarce; today’s question is how bandwidth and content affect salience. Distribution is now unbundled; regulating one layer won’t allow you to control the layers above it. The “long tail” allows every audience to find appealing content. This allows everyone to dissent and get enormous amounts of content; you can even speak back to stories about you on Google News. Viewers are now free of content they don’t want, and content providers are free of the physical layer – the “broadband bypass.”

There are physical-layer constraints; cable and broadcasters still control content, and broadband ownership is highly concentrated. But the people who control transport only control a portion of the content. Regulatory interventions may be necessary to keep them from controlling it all, but that’s not the fairness doctrine.

Broadcast still occupies the head of the long tail, but it’s fluid: network news has lost millions of viewers over the past ten years. The composition of the head also has very little to do with the physical layer; Jon Stewart can have as much influence as a network anchor. (Is this true as a statement about viewership? I thought not.) And YouTube provides another, broadband source of salience. Salience now comes from search engines and social linking functions.

The new scarcity is in the production of strong investigative journalism. A revival of the fairness doctrine would deter such journalism; this is a market failure that needs correction.

Dienes: He’s a big fan of editorial autonomy, and fears that judicial supervision of FCC regulation would be insufficient to avoid discriminatory or arbitrary application of the doctrine. Editors and reporters exercise plenty of discretion now; there’s no need to intervene on their behalf.

Baker: A proposal that is logical, though politically unviable: Reporters are being laid off everywhere, and we are desperately in need of good investigative journalists, no matter how good the editors are. We are heading to a world in which people go around talking to themselves, fact-free. Investigative journalism also has enormous positive externalities, informing people and benefiting the community, even the members who don’t read the paper. What if journalists were cheaper? Media entities would be more willing to hire them – so how about a tax deduction for half the journalist’s salary? But until journalists accept principles of political economy, this won’t be a viable proposal.

Other possible reforms, more structural than substantive: broadcasters could be required to consult with the community about what the local important issues are, and then to use a percentage of time to deal with those issues. Or a percentage of ad revenue.

Baker, in comments, made the great point that media literacy education is in fact a government-sponsored program and reflects a government intervention into the “market” for speech. (As, of course, school in general does.)