Will: Why Howard Dean Wants to Re-regulate the Media

Some illiberal liberals are trying to restore the luridly misnamed Fairness Doctrine, which until 1987 required broadcasters to devote a reasonable amount of time to presenting fairly each side of a controversial issue. The government was empowered to decide how many sides there were, how much time was reasonable and what was fair.

By trying to again empower the government to regulate broadcasting, illiberals reveal their lack of confidence in their ability to compete in the marketplace of ideas, and their disdain for consumer sovereignty—and hence for the public.

The illiberals' transparent, and often proclaimed, objective is to silence talk radio. Liberals strenuously and unsuccessfully attempted to compete in that medium—witness the anemia of their Air America. Talk radio barely existed in 1980, when there were fewer than 100 talk shows nationwide. The Fairness Doctrine was scrapped in 1987, and today more than 1,400 stations are entirely devoted to talk formats. Conservatives dominate talk radio—although no more thoroughly than liberals dominate Hollywood, academia and much of the mainstream media.

Beginning in 1927, the government, concerned about the scarcity of radio-spectrum access, began regulating the content of broadcasts. In 1928, it decided that the programming of New York's WEVD, which was owned by the Socialist Party, was not in the public interest. The station's license was renewed after a warning to show "due regard for the opinions of others." What was "due"? Who knew?

In 1929, the government refused the Chicago Federation of Labor's attempt to buy a station because, spectrum space being limited, all stations "should cater to the general public." A decade later, the government conditioned the renewal of a station's license on the station's promise to broadcast no more anti-FDR editorials.

In 1969, the Supreme Court rejected the argument that the Fairness Doctrine violated the First Amendment protection of free speech, saying the doctrine enhanced free speech. The court did not know how the Kennedy administration, anticipating a 1964 race against Barry Goldwater, had wielded the doctrine against stations broadcasting conservative programming. The Democratic Party paid people to monitor conservative broadcasts and coached liberals in how to demand equal time. This campaign burdened stations with litigation costs and won 1,678 hours of free air time.

Bill Ruder, a member of Kennedy's subcabinet, said: "Our massive strategy was to use the Fairness Doctrine to 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 Nixon administration frequently threatened the three networks and individual stations with expensive license challenges under the Fairness Doctrine.

In 1973, Supreme Court justice and liberal icon William Douglas said: "The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV and radio." The Reagan administration scrapped the doctrine because of its chilling effect on controversial speech, and because the scarcity rationale was becoming absurd.

Adam Thierer, writing in the City Journal, notes that today's "media cornucopia" has made America "as information-rich as any society in history." In addition to the Internet's uncountable sources of information, there are 14,000 radio stations—twice as many as in 1970—and satellite radio has nearly 14 million subscribers. Eighty-seven percent of households have either cable or satellite television with more than 500 channels to choose from. There are more than 19,000 magazines (up more than 5,000 since 1993). Thierer says, consider a black lesbian feminist who hunts and likes country music:

"Would the 'mainstream media' of 25 years ago represented any of her interests? Unlikely. Today, though, this woman can program her TiVo to record her favorite shows on Black Entertainment Television, Logo (a gay/lesbian-oriented cable channel), Oxygen (female-targeted programming), the Outdoor Life Network and Country Music Television."

Some of today's illiberals say that media abundance, not scarcity, justifies the Fairness Doctrine: Americans, the poor dears, are bewildered by too many choices. And the plenitude of information sources disperses "the national campfire," the cozy communitarian experience of the good old days (for liberals), when everyone gathered around—and was dependent on—ABC, NBC and CBS.

"I believe we need to re-regulate the media," says Howard Dean. Such illiberals argue that the paucity of liberal successes in today's radio competition—and the success of Fox News—somehow represent "market failure." That is the regularly recurring, all-purpose rationale for government intervention in markets. Market failure is defined as consumers' not buying what liberals are selling.

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