A New Fairness Doctrine is an Old, Bad Idea
Kennedy and LBJ used the policy to stifle dissent so they could advance their agendas.
|Paul Matzko||Feb 2||45||38|
Every few years since 1987, when the Federal Communications Commission repealed the Fairness Doctrine, a congressional Democrat garners headlines by proposing that we ought to bring it back to stymie conservative dominance of talk radio or cable news. Conservative broadcasters respond by pointing out the liberal bent in television or newsprint. Everyone has a satisfying galumph, gets bored, and nothing happens.
But that predictable pattern has been disrupted, in part because of social media. Since 2017, a growing number of Republicans have begun calling for Fairness Doctrine-style government regulation of the internet. At the same time, interest in internet regulation is peaking among progressive Democrats, who want to counter the misinformation that helped fuel the January 6 insurrection. Given that President Biden has himself expressed a desire to curtail Section 230 protections for online platforms, the odds of significant government regulation of the internet have not been this high since the 1990s.
Progressive support for such measures is to be expected—they’ve never met a system that a little technocratic tinkering couldn't improve—but what is truly surprising is that self-described conservatives would support this kind of government intervention. That is because the last time the government attempted to regulate mass media to ensure fairness and ideological diversity, it resulted in one of the most successful episodes of censorship in U.S. history. And conservatives were the target.
You might be asking yourself, what exactly is the Fairness Doctrine? In 1949 the Federal Communications Commission notified radio station owners that their broadcast licenses were contingent on whether they operated "on a basis of overall fairness," which meant making their facilities "available for the expression of the contrasting views of all responsible elements in the community on various issues which arise." If a station were to air a segment about a controversial political issue or current event, it was obligated to represent multiple viewpoints about that topic (though in practice it turned into a blunt both sides-ism). If a station failed to consistently do so, it risked losing its station license at renewal time, which would be the kiss of death.
This fairness obligation was unique to broadcast media. Because of the First Amendment, the government cannot require newspapers or book publishers (or, these days, social media platforms and cable news networks) to be fair. But unlike print, radio and TV station owners do not actually own the spectrum they utilize; the government does. And in the 1930s government lawyers invented a legal fiction called the "scarcity rationale" to provide, well, a rationale for denying full First Amendment protections to broadcasters. Since the radio spectrum was finite—and broadcasters merely borrowing bandwidth for a time—the government had to pick winners and losers in the licensing game and could make that decision on the basis of the content they aired. However, while the FCC had claimed a rather breathtaking authority, it was all but unenforceable.
For the next 14 years, the Fairness Doctrine remained as neglected as it was ostensibly high-minded. Until, that is, John F. Kennedy realized that the Fairness Doctrine could be weaponized. Following his narrow election victory in 1960, JFK's attorney general (and brother) Robert Kennedy commissioned Walter and Victor Reuther, executives in the United Automobile Workers union, to come up with a plan for boosting Kennedy's re-election hopes. In particular, they were to find a way to silence a group of pesky right-wing radio hosts that had sprung up like weeds on non-network radio over the past few years.
The most prominent of these Radio Right hosts, a fundamentalist preacher from New Jersey named Carl McIntire, had gone from airing his daily program on just two stations in 1956 to more than 460 stations spread across the entire country by 1964. About 20 million Americans listened to his program, as many as Rush Limbaugh at his peak 40 years later. And these Radio Right broadcasters hated JFK, sparing no opportunity to criticize his administration and undermine his legislative agenda.
The Reuther brothers gave the Kennedy brothers a plan (later nicknamed "the Reuther Memorandum") for muting these voices. First, they would launch targeted audits by the Internal Revenue Service; the ultimate goal being to revoke broadcasters' tax exempt status, put a dent in listener contributions, and cap how much airtime they could afford to purchase.
The second component was to use the Fairness Doctrine to intimidate radio stations that aired the offending broadcasters. Thus, in the summer of 1963 President Kennedy told his newly appointed FCC Chairman, Bill Henry, “It is important that stations be kept fair.” One of Henry's first actions as chairman was to announce that the Fairness Doctrine would be rigorously and evenhandedly enforced (though every example of unbalanced speech given in Henry’s statement was conservative speech). But the FCC couldn’t file Fairness Doctrine complaints itself. It relied on members of the public to file Fairness Doctrine complaints about unbalanced speech. The Kennedy administration decided to give the process a helping hand.
At the time, JFK hoped to make a nuclear test ban treaty with the Soviet Union the core of his re-election campaign. But the treaty had faced a surprising amount of public backlash in the spring and summer of 1963, so much so that the necessary Senate supermajority looked unlikely. To goose the odds, the White House secretly organized a front organization that could file Fairness Doctrine complaints on the administration's behalf. The Citizens Committee for a Nuclear Test Ban monitored radio stations, noted when hosts criticized the treaty, and then demanded free pro-treaty response time under threat of filing a Fairness Doctrine complaint. Many stations complied and some started dropping conservative programming altogether. The treaty ultimately passed the Senate by a comfortable margin.
The tactical use of the Fairness Doctrine continued after Kennedy’s assassination. The Democratic National Committee realized that rather than just using the doctrine to push specific legislation, the same approach could be used more generally, both to boost Lyndon Johnson's campaign in 1964 and to put a permanent dent in the Radio Right. The DNC followed the Kennedy playbook by establishing a new front organization (the National Council for Civic Responsibility), but it also hired a team of dedicated political operatives and gave them a warrant to target right-wing programs on any issue.
For example, when one radio host accused LBJ of using the Gulf of Tonkin incident as a pretext for escalating the war in Vietnam, the DNC team claimed free response time to push the administration line. (We now know that LBJ had done precisely that: The president was infamously caught on tape saying that he didn’t care if the radar ghosts were Vietnamese ships or whales.) In a post-election report back to headquarters, the DNC operatives exulted in the 1,700 free broadcasts they had extracted via the Fairness Doctrine; but even “more important than the free radio time … was the effectiveness of this operation in inhibiting the political activity of the Right Wing broadcasts.”
Not all radio stations took this Fairness Doctrine campaign lying down; one station in little Red Lion, Pennsylvania, refused to comply, leading to a case that made it to the U.S. Supreme Court, which unanimously upheld the Fairness Doctrine in Red Lion Broadcasting Co. vs FCC (1969). Little did the court know, however, that the complainant, Fred Cook, was being secretly backed by the DNC’s Fairness Doctrine operation team; it was they who had paid him to write an attack article on the offending broadcasters, notified him of the personal attack in response, and even paid for his health insurance. The Supreme Court had been hoodwinked by the most successful government censorship campaign of the last half century.
By the early 1970s, the Fairness Doctrine campaign had left the Radio Right in shambles. Conservative radio would limp along until the end of Fairness Doctrine regime under the Carter and Reagan administrations, which enabled the rise of talk radio. Even so, the full, sordid story of the Fairness Doctrine remained mostly unexcavated. But some sense of it lingered in the fears of the first generation of talk radio hosts. For example, Rush Limbaugh, who remembered the Fairness Doctrine from his start in radio in the 1960s as a teenager, has mentioned the doctrine on 141 episodes of his show since 2007.
But younger conservatives do not have that engrained memory. They only imagine the good they think can be done via a redesigned Fairness Doctrine. They believe—mostly without merit—that the major social media companies are unfairly punishing conservative speech. What then could be the harm in banning those companies from political discrimination in their content moderation? Or conditioning Section 230 liability protection on algorithmic neutrality?
As Sen. Lindsey Graham—who is old enough to know better but ambitious enough to forget—said of the Online Freedom and Viewpoint Diversity Act, which he co-sponsored last October, “Social media companies are routinely censoring content that to many should be considered vital political speech.” It’s an echo of 1949’s mandate, that platforms must remain “available for the expression of contrasting views.”
Any neo-Fairness Doctrine would face major legal hurdles since, unlike broadcasting, there is no “scarcity rationale” for the internet. But the scarcity rationale was itself a legal fiction, a reminder that where there is a political will, there is a bureaucratic way. If, for instance, online user data were defined as a public resource or if social media were regulated as a common carrier utility, it might be possible to overcome First Amendment-based legal challenges.
In which case, conservatives could end up being the architects of their own downfall. Giving a government agency that is filled with presidential appointees an expansive mandate to secure ambiguous concepts like “neutrality” or “fairness” is practically begging for malfeasance, partisan gamesmanship, and corporate rent-seeking.
If you still can't imagine how such a system might sour, consider a tweet by Donald Trump from back in the time when there was always a tweet. In 2017 NBC News had aired a piece criticizing President Trump's nuclear weapons policy. Trump responded by saying that the FCC should “challenge their license.”
Now, this was a silly statement given that stations are licensed, while networks are not. But once upon a time, a president angry about critical coverage actually could have found a way to challenge the license of a station. It’s what John F. Kennedy and the DNC did via front organizations in the 1960s. And when Richard Nixon disliked CBS News’ critical coverage of the Vietnam War, he sent Chuck Colson to buttonhole CBS executives with the implied threat of Fairness Doctrine trouble for affiliate stations, causing them to be, as Colson reported back, “accommodating, cordial, and almost apologetic.”
Trump's threat against NBC was empty, even a little silly, precisely because—unlike for JFK and Nixon—there was no Fairness Doctrine for Trump to leverage. Before Republicans jump on the Fairness Doctrine bandwagon, they should take the time to learn about their own history.
Paul Matzko is a historian and the editor for tech and innovation for the Cato Institute. His book, The Radio Right: How a Band of Broadcasters Took on the Federal Government and Built the Modern Conservative Movement, was published last June by Oxford University Press.