The need to defend free speech

Many liberals believe they are far more firm in their support of freedom of speech than many conservatives. A strong argument against this stereotyping of both sides is the current campaign to restore the Fairness Doctrine in broadcasting by, among others, four liberal Democrat members of Congress — Sen. Bernie Sanders of Vermont and U.S. Reps. Dennis Kucinich (Ohio), and Maurice Hinchey and Louise Slaughter (New York). They intend to bring this assault on freedom of speech back to life in the new Congress.

In effect by the Federal Communications Commission from 1949 to 1987, the Fairness Doctrine mandated that broadcast stations devoted a reasonable amount of time to discussions of controversial issues of public importance — and that the broadcaster was required to offer reasonable opportunity for opposing viewpoints to be heard.

If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment — precisely the opposite of what the Founders clearly intended.

During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent.

After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply.

This happened at other broadcast stations as well. Champions of the Fairness Doctrine glowed in triumph, emphasizing that due to the “scarcity” of stations around the country, the Supreme Court — in its 1969 decision in Red Lion Broadcasting Co. v. FCC — had been correct in upholding the constitutionality of the Fairness Doctrine. This rationale for circumscribing the First Amendment by government dictate came to be known as “the scarcity doctrine.”

But in 1984, the Supreme Court came to its First Amendment senses in FCC v. League of Women Voters. In view, ruled the Court, of the continually multiplying number of radio and TV channels around the country — and, I would have added, the growth of one-newspaper towns and cities — the “scarcity doctrine,” as it applied to broadcasters, diminished free speech.

Three years later, the FCC concurred:

“The intrusion by government into the content of programming occasioned by the enforcement of (the Fairness Doctrine) restricts the journalistic freedom of broadcasters … (and) actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.”

Nonetheless, in 1987, a bill to restore the Fairness Doctrine passed the House by a 3-to-1 margin — and the Senate by nearly 2-to-1. (With Democrats now in control of both chambers, this could happen again.)

The Framers of the Constitution, in which the First Amendment is embedded, knew from experience that government control of freedom of speech and thought could lead to tyranny.

Imagine if Tom Paine had had to give equal time to the royal governor’s opposing views.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights.