An unfair Doctrine: democrats try once again to 'hush Rush,' and many others.

RUSH LIMBAUGH remembers the days when the Fairness Doctrine ruled the world of radio. There was a moment in 1972, he recalls, when as a young disc jockey at WIXZ, an AM station in the suburbs of Pittsburgh, he criticized coverage of the Democratic response to Richard Nixon's State of the Union address. The State of the Union is a constitutionally mandated report, Limbaugh told listeners, but there's nothing in the Constitution about any opposition-party response. So why were the networks covering it as if it were equal to the president's speech?

It was a reasonable question, something one might hear on dozens of programs today. But it wasn't something you could say on the air in 1972. "I got a scathing phone call on the hotline during the commercial break," Limbaugh recalls, referring to the direct phone line from station management to the broadcast studio. "And then I got a follow-up memo. They said these types of things, if they are on this radio station, will appear in editorials, written and recorded by management." The station's executives, worried about running afoul of the Fairness Doctrine, laid down the law: Mere on-air personalities weren't supposed to discuss issues of importance. "I had to button my lip about it," Limbaugh says.

Ask any radio veteran--not just the nation's most successful talk-show host--and he'll probably have a similar story about the bad old days of the Fairness Doctrine. From the earliest years of radio until 1987, when the Doctrine was repealed, the federal government rode herd on what broadcasters could and could not say about controversial issues. If a radio host took a strong position on the air, he might find himself under investigation by officials of the Federal Communications Commission, who would carefully examine his words to determine whether they passed government standards of fairness. If they didn't, the government might require his station to offer free air time to people with other views, or it might punish the owners in a number of ways, including the revocation of their license to be on the air. The whole process was a blatant violation of First Amendment rights--what journalist or commentator today would stand for it?--but it was the way things worked in broadcasting for more than 50 years.

And now it might be coming back. After the Doctrine was repealed, there was an explosion of talk and information on the radio, and today the business is dominated by Limbaugh, Sean Hannity, Laura Ingraham, Bill Bennett, and a long list of other conservatives. Their commercial success, along with the failure of a number of liberal talk-radio ventures, has led some influential people in Washington to argue that the Fairness Doctrine should be revived.

"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," Illinois Democrat Richard Durbin, the number-two-ranking leader in the Senate, said recently. "It's time to reinstitute the Fairness Doctrine." John Kerry agreed, saying the Fairness Doctrine "ought to be there." And Dianne Feinstein, chairman of the powerful Senate Rules Committee, said she is "looking" at reinstatement. "I think there ought to be an opportunity to present the other side," she said. "Unfortunately, talk radio is overwhelmingly one-way."

Their statements raised a lot of red flags, not just among conservatives but throughout the radio industry. Durbin, Feinstein, and Kerry have significant clout in the Senate. Given their views, what if a Democrat wins control of the White House in 2008, and the party keeps control of the House and Senate? Might we see a serious attempt to revive the Doctrine? If so, what would that mean? The best way to understand what could happen if the Fairness Doctrine were to return is to look back at how it worked in the years before 1987. It's not a pretty sight.

STOPWATCHES AND TAPE RECORDERS

In the mid-1920s, when radio was new, stations were free to broadcast on any frequency they liked. But it didn't take long for them to start bumping into each other, filling the radio dial with interfering signals. The situation was approaching chaos when Congress stepped in with the Radio Act of 1927. The Act set up the Federal Radio Commission, which divided the radio spectrum and issued licenses to stations to broadcast on particular frequencies. The system was refined in the Communications Act of 1934, which broadened the radio commission's powers and renamed it the Federal Communications Commission.

At the time of both bills' passage, Congress debated whether the new laws should contain a fairness provision requiring broadcasters to present differing views on important issues. Lawmakers rejected the idea both times. Nevertheless, the new FCC, on its own, adopted a fairness principle. The reasoning was that the radio airwaves were a scarce public commodity and there were few radio stations, so broadcasters had an obligation to stay away from one-sided discussions of public affairs.

In practice, however, the FCC's position evolved into a ban on editorializing, with the commission encouraging broadcasters to avoid hot political issues. But just 15 years later, in 1949, the FCC did an about-face, issuing its landmark "Report on Editorializing by Broadcast Licensees," which required broadcasters to discuss public affairs. License holders, the FCC declared, must devote "a reasonable percentage of their broadcast time" to news and the "discussion of public issues of interest in the community served by the particular station." Furthermore, the commission said broadcasters must present "the different attitudes and viewpoints concerning these vital and often controversial issues which are held by the various groups which make up the community."

The edict became known as the Fairness Doctrine, and after 1949 the FCC established enforcement procedures under which members of the listening public, if they felt a broadcaster had covered a public issue in an unbalanced way, could complain to the commission. FCC staff would then investigate the complaint, and, acting as judge and jury, might order the broadcaster to give airtime to the complainant. The FCC also had the authority to take more severe measures, including revoking the broadcaster's license, thereby putting him out of business.

Once in operation, Fairness Doctrine enforcement became a system for the government to micromanage editorial content. "When a complaint came in, the staff would start trying to determine a couple of things," says Jim McKinney, a former head of the FCC's Mass Media Bureau who began work at the commission in the early 1960s. "One, was the issue of public importance in the local community, and two, if it was, how was it treated not only by the broadcaster, but by other forms of mass communication in the community? That required them to get local newspapers and listen to tape recordings that a complainant sent in, and ask the broadcaster to provide any other material they had done on the same topic."

With evidence in hand, the FCC staff would "pull out stopwatches," McKinney continues. "They would get out the tapes, and they would start timing how many minutes and seconds a broadcaster had devoted to the issue of public importance. And then, depending on how that came out, they would either close the investigation, or they would prepare an item for the commission to take an enforcement action."

The system seemed unconstitutional on its face, as well as grossly unfair to broadcasters; certainly no newspaper would tolerate the government's telling it what to cover and what to say. The FCC repeatedly cited the scarcity argument to justify its actions, but in the years after 1949 a significant number of broadcasters rejected its reasoning, and enforcement of the Doctrine became an intensely contentious and political affair. The FCC found itself playing the role of referee in a series of skirmishes over political talk on the airwaves, and by the mid-1960s the issue was fought out in a lawsuit that went all the way to the Supreme Court.

The story began in November 1964, just a few weeks after Lyndon Johnson trounced Barry Goldwater. WGCB, a small radio station in Red Lion, Pa., ran a commentary by a conservative preacher named Billy James Hargis in which Hargis denounced a recently published book entitled Goldwater: Extremist on the Right. Among those listening to Hargis's commentary were radio monitors on the Democratic National Committee's payroll. The DNC had been working with the Kennedy administration in a campaign to use the Fairness Doctrine to, in the words of one administration official, "challenge and harass right-wing broadcasters in the hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

The DNC enlisted the author of Goldwater: Extremist on the Right, a man named Fred Cook, to file a Fairness Doctrine complaint against WGCB, demanding equal time to respond. (For Cook, it was part of a personal crusade; he had recently written an article about conservative broadcasters, "Radio Right: Hate Clubs of the Air," for The Nation.) The FCC sided with Cook, ordering WGCB to give him time to respond. The station refused, although it offered to sell time to Cook at the same rate, $7.50 for 15 minutes, that Hargis had paid. The case went to court and eventually resulted in the Supreme Court ruling Red Lion Broadcasting Co. v. Federal Communications Commission, in which the Court ruled unanimously in favor of the FCC. The Fairness Doctrine was the law of the land in broadcasting.

CHILLING EFFECT 

After Red Lion, FCC officials had new authority to get out the stopwatches, and local broadcasters were forced to hire lawyers, gather evidence, and try to defend their editorial decisions. What few people realized at first, however, was that Red Lion had within it the seeds of its own destruction.

Even though the FCC won the case, it did not win the Court's unequivocal approval of the Fairness Doctrine. In a key passage, the justices noted that the intention of the Doctrine was to bring more opinions to the public airwaves. If that did not happen, they wrote--if the Doctrine instead had "the net effect of reducing rather than enhancing the volume and quality of coverage"--then the Doctrine might warrant reconsideration.

And that is just what happened. In the 1970s, as Red Lion took hold among broadcasters, their reaction was not to present more viewpoints on controversial issues but to try to present no viewpoints at all. The last thing station owners wanted was a challenge to their license, so they often ordered their on-air talent--Rush Limbaugh's experience was just one small example--to talk only about topics that wouldn't get anyone riled up. "As a result," says Michael Harrison, editor of Talkers, the radio-industry magazine, "there was very little provocative, edgy, informative, controversial, or even pertinent political speech on the radio."

Radio executives began to talk about the "chilling effect" of the Doctrine, and repealing it became their top priority. (Remember, the Doctrine had never been a law approved by Congress, so even though it had passed muster with the Supreme Court, the FCC had the power simply to do away with it.) But nothing much changed until 1981, when the Reagan administration took office. The new administration installed communications lawyer Mark Fowler as FCC chairman, and with that the commission was led by a First Amendment believer who was convinced the Doctrine had to go.

For one thing, Fowler believed the growth of cable and satellite TV, as well as a big increase in the number of radio stations, had made the scarcity argument obsolete. More important, he believed the Doctrine was unconstitutional on its face, regardless of scarcity. "The First Amendment says Congress shall make no law abridging the freedom of the press, and no law means no law," Fowler says. "The First Amendment was like an old antique that had been slathered over with layer after layer of paint."

But Fowler, and later Dennis Patrick, Reagan's next appointee as chairman, couldn't just throw a ruling with Supreme Court approval and years of practice out the window. Instead, they began the laborious project of interviewing broadcasters and gathering information about how the Doctrine worked in the real world. "What we found," recalls Patrick, "were broadcasters who said that, rather than get into litigious waters, rather than incur expenses and risk losing their licenses, they chose to stay away from controversial issues." In 1985, the FCC released an extensive report filled with examples of the chilling effect.

There was the radio-station manager in southern California who canceled a series of reports on religious cults because of "an assessment of the legal and personnel costs associated with defending a possible Fairness Doctrine complaint." There was the Cornhusker Television Corporation executive in Nebraska who said he didn't run a number of public-affairs programs for fear of having to defend against Doctrine complaints. And there was the testimony of one Dan Rather, who recounted his experience at a large-market radio station in Texas. "Not only the station manager but the newspeople as well were very much aware of this government presence looking over their shoulders," Rather told the commission.

Armed with the evidence, the FCC had the strong support of broadcasters. But liberal activists who had relied on the Doctrine in the past opposed the move. And so did some conservatives. Among them were Phyllis Schlafly and the late Reed Irvine, founder of Accuracy in Media, who argued that repeal would make liberal bias in the media worse. "Many [broadcasters] have done no more than pay lip service to fairness even when it was required by law," Irvine wrote in a letter to the New York Times in 1987. "It is foolish to think that they would suddenly become addicted to fairness if all legal restraints on their uninhibited exercise of power were removed."

"At the time, we didn't have the alternative media that we have now, and they felt it was the only chance they had to get on the air with their point of view," recalls Paul Weyrich, who favored repeal, in part because he had once worked in radio and had a first-hand sense of the burdens imposed by the Doctrine. "They couldn't see talk radio coming as it is today, and of course the Internet was unknown."

The repealers won, and in 1987 the Doctrine was thrown out. After a court challenge upheld the FCC's decision, broadcasters were finally free to speak freely. Talk radio exploded and conservative dominance was born. And so was a movement to bring government control back to radio.

THE NEW REGULATORS

For nearly two decades, liberal activists have tried to counter the success of Limbaugh and the conservative hosts who followed him. First they tried to restore the Doctrine, beginning in 1993 with a bill dubbed "Hush Rush." That effort died after Republican victories in 1994, so liberals turned to the marketplace, searching for a Rush of their own. For a while, they hoped that Jim Hightower, a former Texas state official with a small on-air following, might be the answer. When Hightower failed, they hoped that Mario Cuomo, the former New York governor, might fit the bill. When Cuomo failed, they came up with the idea of a liberal network, Air America, that would succeed where single hosts had not. But Air America ended up in bankruptcy, although it has recently undergone restructuring and is still at least nominally in business.

Now they're back to the Fairness Doctrine. In October 2004, Media Matters for America, the liberal watchdog group funded by a number of the same donors who made spectacularly large contributions to Democratic 527 groups in the last few elections, announced a campaign to support New York Democratic representative Louise Slaughter's bill to re-impose the Doctrine. "Tired of imbalanced political discourse on our airwaves?" Media Matters asked readers in a petition appeal. "By restoring a diversity of fact and opinion to programming, Fairness Doctrine legislation restores a concept [of balance] that has been lost since the 1980s." The crusade was picked up by a number of "netroots" activists, and now Durbin, Feinstein, and Kerry are on board.

That last development "set off alarm bells," says Indiana Republican representative Mike Pence. Pence, a former radio-talk-show host himself, was so concerned that in late June he and a colleague, Arizona Republican Jeff Flake, came up with the idea of attaching to an FCC-funding bill an amendment that barred the commission from using its funds to reinstate the Doctrine. The amendment passed the House, 309 to 115.

But it was just a one-year fix. Pence is also sponsoring the Broadcaster Freedom Act, which would permanently take away from the FCC the authority to re-impose the Fairness Doctrine. If it passes, the only way the Doctrine could come back would be by an act of Congress. "The American people need to know that a future Democrat president could appoint members to the FCC and issue executive orders that in combination could bring back the Fairness Doctrine without a single act of Congress," Pence says. "Our bill, very simply put, deprives the FCC of that authority."

Even if Pence succeeds, there is still another threat on the horizon. The debate over radio fairness now includes a new player, the liberal think tank Center for American Progress, which in June issued a report, "The Structural Imbalance of Political Talk Radio," advocating not a return to the Fairness Doctrine but an overhaul of the radio-station ownership structure in the United States. "The gap between conservative and progressive talk radio is the result of multiple structural problems in the U.S. regulatory system," the report states, explaining that stations owned by big companies, such as Clear Channel and Salem Broadcasting, are more likely to carry conservative talk than stations owned by smaller companies. To remedy that "problem," the Center advocates policies to reduce the number of stations that one company can own. It also recommends a de facto quota system to ensure that more women and minorities own stations. And it would penalize those radio-station owners who do not get in line by requiring them "to pay a fee to support public broadcasting."

It's not clear whether the Center's proposals will win much support in Congress. But it is safe to say that in the next few years there will be repeated attempts to reintroduce some sort of regulation to control the content of talk radio. Those proposals will certainly have some political support on the left. But among those who know radio best, there's great optimism that freedom of speech will win, not only in a court of law but in the court of public opinion. "I don't think this has a prayer," says Rush Limbaugh. "When I started there were 125 talk stations. Today there are 2,000. The idea that there are fewer ideas expressed, that there is less diversity, is absurd."