The Unfairness Doctrine: Nancy Pelosi v. James Madison


An influential communications blog recently called for the re-imposition of the so-called Fairness Doctrine suggesting that House Speaker Nancy Pelosi might favor the effort.

“It will not surprise us if the Fairness Doctrine returns and we wouldn’t get all that upset about it. Speaker Nancy Pelosi wants it back on the books. It could be good for broadcasting.”

I’m absolutely opposed to this and just to make myself clear, we’ll refer to it henceforth as the Unfairness Doctrine.

The misnamed doctrine was struck down on August 4, 1987 by an enlightened FCC of its day. And although the damn thing sometimes resembles Lazarus in the Bible in that it keeps jumping up again and again, I hope we won’t associate ourselves with any recurring assault on the First Amendment rights of broadcasters, no matter how agreeable and deceptively named.

It’s very simple and very fundamental: the Federal Communications Commission and the Congress should not be allowed to dictate our agenda or shape our priorities. Our opposition to any unfairness doctrine is based, in every season, on the bedrock, fundamental wisdom of the Founders: “Congress shall make no law …” You know the rest.

The bloggers may have Nancy Pelosi on their side. I’m afraid I only have James Madison. In our best moments we are electronic journalists at the People’s business. And clearly, it (any doctrine by government fiat or decree) would be an impermissible intrusion into the editorial process and an inhibitor rather than promoter of controversial expression. It would unquestionably inhibit the presentation of controversy. So much for “balance.”

I don’t think we want to be among those who would intensify the chill an Unfairness Doctrine would induce. We either believe in the principle that broadcasting is entitled to the full freedom of the press that the First Amendment guarantees. Or we do not.

Mario Cuomo

Governor Mario Cuomo instructs us:

“You can’t get at bad taste and destructive communication through regulation. That’s just substituting one evil for another. The ceding of authority, on a basic principle, has to come back to haunt us.”

The great Cuomo (who the Boston Globe calls “the pre-eminent philosopher-statesman of the American nation”) is saying that maybe this generation of broadcasters, buffeted by new technology and competition (and consolidation) can survive by what I’ve called our “obsequious acquiescence” and by pulling our punches on free speech and content issues like an Unfairness Doctrine, but our kids won’t – the people we leave their businesses to.

Bargaining Chip

I’m afraid broadcasters are not united in pushing for our long-overdue independence from content regulation. In every season, it seems, structural, so-called “pocketbook” issues, take precedence among the speculators and investors, and even some broadcasters – those “market managers” who operate out of airport lounges with their PalmPilots and Blackberries beholden to corporate masters a whole continent away. They’ll beat their breasts about ownership caps, newspaper-broadcast cross ownership, multicast-must carry, dual-carriage, retransmission consent, a la carte pricing, fin-sin rules, performance taxes, the DTV spectrum and those white spaces in the DTV band, low power FM, satellite radio, SDARS repeaters, copyright royalties, main studio location, competition from telcos and iPods, etc.

But the broadcasting establishment and the NAB Board, sadly, have always viewed the First Amendment as a stepchild among our priorities and even, occasionally, as a bargaining chip.

So before anyone attempts to bestow their imprimatur it would be wise to give this some thought lest a lot of owners, people who make profits in this business (again, read: profession) will sell freedom for fees or accommodation on structural, competitive issues. They will make deals with Speaker Pelosi and Congress. They will accept regulation we shouldn’t be accepting – all in exchange for an opportunity to make more money, thus adding their weight to a destructive principle.

And what’s more (and worse), they will flee from any controversial or meaningful programming and throw Radio back to its “jukebox era.” That is the real danger. And I don’t think you want to encourage that.

United Effort

Why not instead use our resources and energy to revive our own flagging spirits and lack of attention to these fundamental issues. All elements of today’s modern media would be better served by a united effort by broadcasters, podcasters, bloggers, internet entrepreneurs, cable operators, et al – all those now firmly fixed, and those just entering, the Information Age – to develop a consolidated, joint resolve against government intrusion into content and free expression.

Fairness? Balance? No matter how comforting it would be for the Congress and the Commission to wrap themselves around “fairness,” a concept not explicitly or penumbrally protected by the Constitution as free speech and free press expressly are, I am confident the Supreme Court will one day be compelled to concentrate on the clear, certain, elegant, unvarnished language in the First Amendment of the Bill of Rights should we ever again be confronted by the siren song of “fairness” by government fiat, decree or doctrine.

No one disputes what has been called the “coarsening” of our culture. And yet the quest for “fairness” and “balance,” while understandable, and even commendable, is every much a fool’s errand as the crusade to install “decency” on the nation’s airwaves. And perhaps even more dangerous.

Eye of the Beholder

Can’t one just hear a Capitol Hill solon opining: “I know fairness when I hear it … and I also know balance when I see it?” Again, it’s all in the eye of the beholder. And the same self-appointed censors who would seek to identify and define indecency, vulgarity or obscenity should not be given the opportunity to determine fairness. Or balance. That should always be left to the journalist and his or her audience, which is the only permissible censor. Turn it off if you don’t like it. Don’t listen or watch if you find it offensive.

Programming should be based only on our judgment as journalists and the dictates of our audiences in whom we should ultimately place our trust. For the People, in their collective wisdom, are infinitely wiser than any government-appointed regulatory agency’s idea of what the public should be allowed to hear and see.


Thirty-two years ago Eric Sevareid said:

“The Washington intellectuals have always hated anything that the generality of people liked: They must, to preserve their distinctiveness, their eliteness, even (especially) those who claim they love humanity and who want to control the product of our labors. As Eric Hoffer once said, “The businessman just wants your money; the military man wants you to obey. But the intellectual (and the censor) wants your soul. He wants people to get down on their knees and love what they hate and hate what they love.”

And over 200 years ago the Founders saw to it that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech; or the press, or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Those forty-five simple words bound together in spare, unadorned prose are the wisest and most valuable design for democracy ever put to paper. Of all the clauses in the Constitution, it is the one passage that guarantees everything else in the greatest document ever struck off by the hand and mind of man.
In our world where ambiguity infects almost everything, this is the loveliest example of nonambiguity to be found anywhere. Concise, compact, marching in serried ranks, there is about these immortal words the taste of pure wisdom unsoiled by hesitancy.

What that glorious amendment means is that no matter how fiery the rhetoric, or frenzied the debate, or how calamitous the cry, government cannot interrupt or intervene in the speech of its citizens.
It’s not easy to be a First Amendment advocate. You must allow that which you may judge to be meretricious, squalid, smarmy and without so-called “redeeming value” to enter the marketplace. Often we become irate ourselves at what is invading the culture of the community, particularly awful words and terrible, even dangerous ideas from which we want to recoil.

Enlightened Regulators
Thankfully not all regulators are immune to the lovely music and instruction of the First Amendment. Listen to these powerful (and courageous) findings announced some 20 years ago by the then chairman and also the chief general counsel of the FCC as they struck a blow for freedom. Our freedom.

“The First Amendment does not guarantee a fair press, only a free press. The fairness doctrine chills free speech, is not narrowly tailored to achieve any substantial government interest, and therefore contravenes the First Amendment and the public interest. As a consequence, we can no longer impose fairness doctrine obligations on broadcasting and simultaneously honor our oath of office.”

– – FCC Chairman Dennis Patrick
August 4, 1987

“The framers had it right. No matter how good the intention, there is no way for government to restrict freedom of speech or the press and foster a robust and unfettered exchange of ideas. If we must choose whether editorial decisions are to be made in the free judgment of individual broadcasters or imposed by bureaucratic fiat, the choice must be for freedom.”

— FCC General Counsel Diane Killory

Washington Sage

Patrick Maines, the erudite president of the Media Institute, the prestigious Washington think thank, has been trying to drag us kicking and screaming onto the battlefield to confront government intrusion into our creative processes. Said the brainy and quite brave Mr. Maines:

“Politically speaking, freedom of speech in the United States is in tatters. Beleaguered by ‘progressives’ on the Left, ‘social conservatives’ on the Right, and policymakers and bureaucrats of all stripes, our ability to freely express ourselves would already be greatly diminished but for the Federal courts.

Bad as the situation is within policymaking circles, it is little better in academia and even mainstream journalism, both of which, with a few exceptions, operate in the grip of a kind of political correctness that is the very antithesis of free speech, if not of freedom itself.

The beginning of wisdom lies in understanding that free speech isn’t imperiled because educated people don’t know what it is. It’s imperiled because educated people subordinate this knowledge to their political and cultural preferences.

Whether you call it inconsistency, hypocrisy, or willfulness, it is at the heart of the present danger.

As direct beneficiaries of the speech clause of the First Amendment, media companies have an obligation to act as the people’s’ sentinels on this issue. As such they need to see that they are not adding to the problem by acts of omission or commission, and to practice what they preach.

Though it’s not widely appreciated, the truth is that the First Amendment is indivisible. We don’t have one First Amendment for newspapers and another for the Internet. Nor do we have one for the media and another for individuals, or one for news and one for entertainment, or one for Radio and another for Television.
We have only one First Amendment and, such being the ways of precedent, if it is weakened anywhere it’s weakened everywhere. Which is why it is incumbent on media companies to act rigorously and selflessly to protect it.

Freedom of speech in the United States is at risk of dying a death of a thousand cuts. For the sake of the nation, as well as the health of their profession, it is to be profoundly hoped that the media, old and new, will rethink and redouble their efforts to safeguard this cornerstone or our constitutional rights.”

Opposite Effect

There are also practical reasons to oppose Pelosi and friends. A government doctrine would have an opposite effect by exerting a chilling restraint of speech because of the cost in time, money and controversy on already beleaguered broadcasters, who as ordinary, practical business people, however privileged their calling and high estate, often prefer to pull their punches on free speech issues or stay out of the ring entirely on government intrusions into content.

They (the NAB Board) would rather save their gunpowder for assaults on the brick and mortar – the structural integrity – of our “industry” which threatens our purses and bottom lines. “Pocketbook” issues we can understand.

I’m afraid that station or network owners (or those market managers) unwilling to fight for full constitutional freedoms ought not to be in the business (read: profession).

During my service at NAB, time and again, I would remind our colleagues that we are not John Deere dealers or holders of a Budweiser franchise!

Industry or Profession?

The minutes of NAB’s high councils for the last several decades contain thousands of references to our “industry” (some southerners called it an “in-dust-ry). Mr. Sevareid, however, referred to what we do, our electronic journalism, as “a profession … a trade … or calling.” I think that has a better ring to it.
As I finally and mercifully yield, let me point out that I’m not exactly alone in the general tone and tenor of my views. In an attempt to be glib, I said, somewhere earlier that they had Mrs. Pelosi, while I had only Mr. Madison.

Friends of the First

But I’m reminded that opposition and revulsion to any so-called “fairness” doctrine can be found in the writings and pronouncements over the years of some of the brightest thinkers and public servants of our time: William Proxmire, Father Robert Drinan, Fred Friendly, Lionel Van Deerlin, Bob Packwood, Sol and Larry Taishoff, David Bazelon, Roman Hruska, Rush Limbaugh, Louis Boccardi, Nat Hentoff, Floyd Abrams, Jim Quello, Ward Quaal, Rick Kaplar, Rachelle Chong, Dennis R. Patrick, Eric Sevareid, William S. Paley, Julian Goodman, Jacob K. Javits, Joe Reilly, Bob Grant, Mel Karmazin, Bill McElveen, David Hinckley, Eric Rhoads, Ronald Reagan, Dennis Jackson, John Harper, Walter Nelson Thayer, Ossie Davis, Ruby Dee, John Hay Whitney, A.M. Rosenthal, Neal Travis, Arthur O. Sulzberger, Ogden Rogers Reid, Dan Rather, Howard Stern, Sean Hannity, Jeffrey Bernbach, Michael Harrison, Bill Clark, Carl Marcucci, Les Brown, Steve Knoll, Jack Messmer, Fred Danzig, Daniel Patrick Moynihan, Martin Stone, Rainer K. Kraus, John Van Buren Sullivan, Lawrence Winer, Robert McNeil, Mimi Weyforth Dawson, George Carlin, Patricia Diaz Dennis, Charles Barton, Potter Stewart, Diane Killory, Patrick Maines, Don West, Harry Jessell, John Eggerton, Jim Carnegie, Jay Mitchell, Bob Doll, Tom Taylor, Frank Saxe, Frank Stanton, Walter May, Don Stevens, Robert Corn-Revere, Erwin Krasnow, John Crigler, Walter Cronkite, Bruce Sanford, Patrick Leahey, John Wells King, Joseph Bellicossa, Justice William O. Douglas and Mr. Cuomo himself. And so many others.

Mr. Paley

The incomparable CBS founder William S. Paley, an iconic figure of our tribe, once said the Fairness Doctrine is like the Holy Roman Empire – only it is neither holy … nor Roman … and it’s not an empire! This occurred at about the same time Mr. Paley took on the Honorable Harley O. Staggers, a right-of-way agent from Mineral County, West Virginia.

It is recalled that Mr. Staggers, who was also chairman of a powerful House subcommittee, wanted to find “contemptible” Paley’s associates Frank Stanton and Walter Cronkite and slam their backsides right into a Federal jail cell concerning a most controversial television program of the day “The Selling of the Pentagon.”
Chairman Staggers, however, did not reckon with Bill Paley’s vision and resolve or with the fierce opposition of a brilliant patrician congressman from Westchester named Ogden Rogers Reid who raised holy hell about all this on the floor of the Congress, all in very gentlemanly fashion, of course.

“Brown” Reid, as he was known when he published the New York Herald Tribune, a newspaper of sainted memory which was founded by Horace Greeley, was on his feet prowling the aisles to line up votes against the powerful chairman bent on censorship.

As the battle joined, Reid, who is now president of the Council of American Ambassadors, (he had been our first ambassador to Israel) began to quote the legendary Tito Gainza Paz, the brave South American publisher who stood up to Juan Peron: “You either have a free press, Mr. Reid … or you don’t.”

And then Reid took to the well of the House to do a slow, steady recitation of those 45 timeless words from the Founders of the Republic. Staggers was finished and his motion for a contempt citation against the CBS elders was defeated.

It really happened not so long ago. And one wonders … where are all the Mr. Paleys of today who will stand up to coercion and intimidation? And where are the Ogden Reids who find no difference between print and broadcast journalism?

I thus hope those yearning for a new/old fairness doctrine will re-think their position re: “fairness.” If nothing else, the history of the doctrine, in its various manifestations, suggests that rather than protecting free speech, it has been used as a cudgel by both liberals and conservatives (and even a few presidents) to stem criticism and stifle dissent.

The Founders

The Founding Fathers, in their wisdom, sought to insure vigorous debate by guaranteeing free speech and a free press, and by restraining the government from interfering. They had faith that the people could distinguish truth from fiction and that the people’s interest would best be served by the unrestricted debate that would follow. Any policy or doctrine to regulate fairness assumes that the people’s interests would be better served by a restricted debate in which the government would serve as a “papa knows best” referee.

Justice Potter Stewart wrote:
“Fairness is far too fragile to be left for a government bureaucracy to accomplish.”

Dump Pacifica and Red Lion v. FCC

I also pray that one day soon the courts will overturn Pacifica, which held that broadcasting was “uniquely pervasive” … and Red Lion v. FCC, which upheld content regulation on the grounds that spectrum was a scarce commodity. Both need to fall to the First Amendment in the highest courts in our land. Sooner rather than later. Until then we must hold grimly and tenaciously to every freedom the law now allows and fight for more.

Words, Damn Words

Free Speech? Some of it ain’t so pretty … but all of it needs to be protected. Words that are sweet, awkward, horrific, barely audible, meretricious, smarmy, smart ass, obscene, political, clumsy, uncomfortable, sexy, crude, inarticulate, cutting, just plain silly, x-rated, excessive, dangerous, insulting, serious, scintillating, disappointing, discursive, provocative, disgusting, vulgar, disjointed, unfair, dismissive, inappropriate, stupid, uninhibited, risqué, droll, suggestive, dull, soothing, exhilarating, tormented, slanted, ferocious, coarse, halting, anti-religious, harmful to the community, revolting, humorous, improper, amoral, oneiric, dreary, dolorous, noble, brave, ignoble, resolute, doughty, biased, alliterative, inappropriate, immoral, sacrilegious, un-American, anarchistic, in error, sexual, inane, cutting edge, incendiary, not serious, appropriate, incorrect, lusty, offensive, insane, passionate, inspiring, beyond the pale, jumbled, florid, long-winded, loud, blunt, lyrical, meaningless, chaste, suggestive, charming, scary, moral, nutty, desperate, out of bounds, over the top, overblown, pedantic, pointed, pointless, popular, prurient, pungent, rambling, raucous, religious, ribald, dissonant, rough, serene, sloppy, inartful, soaring, sublime, bawdy, subtle, thoughtful, indecent, truthful, unclear, nasty, unpleasant, unpopular, vague, witty … are all part of the essential language of America.
The Language of America must be protected. All of it. By all of us.

Madame Speaker

Full disclosure: I have considerable regard for Nancy Pelosi. She and I were “unindicted co-conspirators” and collaborators in the effort to persuade Mario Cuomo to mount a bid for the presidency. We spent many hours on the phone discussing and framing the importunings which we hoped might persuade the Governor to set aside his responsibilities in Albany and enter the presidential sweepstakes. She is one very bright woman. But she is ill-advised on the fairness matter.

Bill O’Shaughnessy is an author and President & CEO, Whitney Radio, parent company of Westchester County, NY community stations WVOX and WRTN.