Friday, February 20, 2009

Apply Fairness Doctrine To Academia ??

There was a superb Op-Ed in the Richmond Times-Dispatch yesterday, by A. Barton Hinkle on the so-called "Fairness Doctrine." Hinkle applies the supposed logic of the doctrine to Academia as well as the print media. As Hinkle points out, Higher Education receives massive infusions of taxpayer cash and other benefits. Moreover, the political leanings of academics are quite unbalanced --- Hinkle reports that at Brown University, for instance, "liberals" outnumber "conservatives" 30-1. At Columbia and Yale the figures are a mere 14-1. Thus, Hinkle says, why not apply the logic of the Fairness Doctrine to compell universities to ensure that their faculties are more "balanced" than they currently are ??

Hinkle also applies similar logic to newspapers and the rest of the media. So, he says:

"Suppose Washington required that every story alleging a festering cancer at the heart of American government or business be matched by a story of equal length celebrating the great work done by the country's national-security apparatus. Or one championing an entrepreneur who managed to launch a business despite the roadblocks placed in his path by hostile environmentalists."

No doubt defenders of academia would (properly) invoke the First Amendment and institutional academic freedom aa rationales for resisting any governmental effort to condition the receipt of government largesse upon "agreement" by universities to hire more conservative faculty. Remember in this connection that schools like Brown, Columbia and Yale are purely private universities and thus particularly immune from such governmental overreaching. Newspapers would invoke the Supreme Court's decision in Miami Herald Publishing Co. v. Trunillo, 418 U.S. 241 (1974) which struck down a state statute that provided public figures who had been criticized in the paper a "right of reply." But there's the rub. The First Amendment also applies to private broadcasters --- who purchase their own broadcasting equipment, pay for the electricity that powers it, and hire the producers and staff who produce the programming. The First Amendment presumably prevents the government from requiring someone who owns a private radio station and employs private talk show hosts to broadcast something he or she does not want to broadcast. As Jefferson said, in a quote reproduced in an earlier post, it is both sinful and tyrannical to compell someone to use his or her wealth to propogate ideas he or she finds abhorent.

Proponents of the so-called "Fairness Doctrine" applied to radio broadcasting might invoke two counter-arguments. First, the airwaves are "public," the federal government has granted station owners the "privilege" of broadcasting, and thus the government can require staion owners to provide balance. Second, they argue that the radio spectrum is "scarce," so that some regulation is necessary to make sure that different viewpoints get sufficient "access" to the "airwaves."

Taking the first argument first, I don't know what an "airwave" is. I know what "air" is, and I know what "radio waves"are. Neither is "public" in any sense relevant in a free society. (Private broadcasters use privately-owned equipment powered by privately-purchased electricity to create and broadcast private radio waves.) It is certainly true that the government has (unlaterally?) "declared" that the "airwaves" are public and also taken upon itself the right to determine who gets to broadcast over which frequencies. This declaration, however, cannot ipso facto empower the government to compel station owners to broadcast material they do not wish to broadcast. Consider an analogy. What if the government declared that all automobiles that travel over public roads are themselves "public," and ordered citizens to listen to Rush Limbaugh three hours per day or to display a "Protect Unborn Life" bumper sticker ?? Add to this the fact that citizens cannot drive an automobile on public roads without a "drivers license."

Obviously the compelled listening and bumper sticker regulations would be unconstitutional abridgments of speech, despite that government's declaration of "publicity" and subsidy for public roads. Indeed, in Wooley v. Maynard, 430 U.S. 705 (1977) the Supreme Court struck down the New Hampshire requirement that all license plates display the adage "Live Free or Die." (Some citizens of New Hampshire apparently preferred life to freedom. But, seriously, some believed that the display offended their religious beliefs.) It did not matter that the state licenses drivers or that cars travel on public roads. Indeed, the case for regulation on this ground is even weaker in the case of broadcasting. After all, cars really DO drive on public roads, while radio waves travel through the atmosphere and space owned by no one. And, if travelling on public roads could justify the abridgment of speech, then Trunillo is wrong, since the Miami Herald no doubt relied upon the public streets to deliver its newspapers.

What, though, of the scarcity rationale ?? It may be true that there is not an infinite number of broadcast frequencies. But broadcasting is not the only way to get one's message out. Indeed, in the antitrust context, the Supreme Court has held that print media and radio broadcasting occupy the same market. See Lorain Journal v. United States, 342 U.S. 143 (1951) (finding that newspaper had attempted to monopolize the local media market by inducing advertisers not to deal with a local radio station). Add to this recent technological innnovations such as satellite radio, cable television, and the internet (whereby anyone can broadcast their ideas via print and/or voice), and it's hard to see how any "scarcity" of broadcast frequencies can justify governent determination of broadcast content. In any event, there are not an infinite number of newspapers or magazines, both of which are produced using finite resources such as ink, paper and journalistic talent, either, and yet scaricity of these outlets has never justified additional regulation.

Again, bravo to Hinkle for his superb column, which can be found here: