THE "FAIRNESS DOCTRINE" IS UNCONSTITUTIONAL

O. R. Adams Jr., 2007

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The Democrats have recaptured both houses of Congress. They are now planning to try to re-enact the old "Fairness Doctrine" that previously proved not only unworkable, but unconstitutional. Their purpose is to try to eliminate the freedom to speak of those who oppose them. Specifically they want to eliminate talk radio programs, such as those of Rush Limbaugh, Michael Savage, and Michael Medved. They have also previously been trying to get a limit on the troops overseas listening to one of their favorite programs, the Rush Limbaugh talk show. Another pain in their side they hope to kill is Christian broadcasting, which this would accomplish. Giving equal sides to opposing views would make talk radio hosts submit half of their programs to those who do not pay for them, and whose views they oppose. And it is not in the nature of a church sermon, to give equal sides to evil or the devil. The left has the same opportunity to get its own programs on the airways as others. They simply want to eliminate views that oppose them.

The Left's View of Freedom of Speech

Those who support such legislation as that referred to above, believe only in politically correct speech that is designed and dictated by them. They continually carry out these dictatorial policies to the extent to which the law allows them. Their primary legal arm is the organization with the misnomer, American Civil Liberties Union (ACLU).

The left has forced its views upon private employers in the country to the full extent that it has been able to get the state and federal legislative bodies to go along with them. This has been at great expense to the private sector and to the public. They always work under the deceitful cloak of "civil rights" bills. Whenever you favor one group with special rights, you take rights from another group. This should not be the business of the government.

We have classic examples of their oppressive attitudes in this regard in our colleges, universities, and public schools. We need to consider some examples. References will not be given for every factual statement and opinion, but much of the material is covered more specifically in other articles and books made available on this website. Also much is easily available on the web with a Google search.

Our places of "higher learning" have a large number of courses promoting feminism, women's studies, homosexuality, and various kinds of sexual deviation. Many would shock decent people who have no previous familiarity with them. But no opposition is allowed, and teachers have lost their jobs because they speak out against such things, and students have been kicked out of school.

The largest union of educators, the National Education Association (NEA) openly embraces the homosexual movement, and the acceptance of homosexuality. They even have a Gay and Lesbian Caucus (GLC). They teach young people that opposition to such deviant behavior is wrong and "homophobic."

Much of what is taught in our schools and institutions of higher learning is pure filth. But there is one thing that they will not allow, and that is the teaching of traditional Judeo-Christian principles. Feminist and homosexual groups are welcomed on campus, but many Christian groups have had to go to court to be allowed the equal right of having their groups. They are the only ones who are not welcome.

The theory of evolution is falsely taught to students as established truth, and any criticism of Darwinian evolutionary theories is unfairly limited. Although some, if not all, of the greatest minds in the history of our world have recognized intelligent design in nature, such things may not be taught in a science class. And they still call this highly politicized approach "science"!

The general media is right in line with academia in all of these things. They promote "hate crime" laws, and all of the leftist agendas. They not only want to dictate what we can say, but even what we can think. In Canada, and some other countries now, the homosexual agenda has progressed to where people cannot even publicly, and particularly over the airways, speak out against homosexuality. This includes reading passages from the Bible!

The left continually fights for pornography in the media, under the false guise of "freedom of speech", but they fight anything religious in the public or governmental square, even the display of the Ten Commandments in government buildings. They fight against school children saying the pledge of allegiance, even though those who object are not required to say the pledge. They even want to eliminate In God We Trust from our coins.

The ACLU hatchet men for the left testify before state and national legislative committees in support of all of these things, such as allowing pornography, the homosexual agenda, and hate crime laws. They continually bring lawsuits against religious expression, and they have tried to destroy the Boy Scouts of America because they express a belief in God and bar homosexuals as leaders. Even after the right of the Scouts to choose their own leaders was established in the Supreme Court (with the ACLU attorneys on the other side), they insidiously try to destroy the organization. They try to have them barred from the use of any schools or public property, which they have historically been allowed to use. This is even though the Boy Scouts of America removed 1,800 Scoutmasters suspected of molesting boy scouts between 1971 and 1991 (As We Sodomize America, p. 521). Many of these homosexual pedophiles were successfully prosecuted, as they were for the same kinds of activity in the Catholic Church.

There is an organization in this country of homosexual pedophiles that goes by the name, North American Man/Boy Love Association (NAMBLA). Such an organization would not have been allowed in this country at an earlier time, prior to our great decline in morality. The ACLU teams with them to try to get the age of consent lowered so that it will be easier for them to prey on young boys. All of the homosexual groups are continually working for this, and they even have an "Age of Consent" website. The ACLU also works with them and represents them in child pornography cases. All kinds of pornography, including child pornography, is of great interest to these people, and the ACLU. This alone tells us volumes about their true character. One of our present Supreme Court Justices, Ruth Bader Ginsburg, was a former ACLU member, and perhaps still is. She has expressed similar views, including those about lowering the age of consent, and when cases come before the Court, she can be depended upon to hew to the ACLU line.

Fifty years ago our laws on obscenity were quite different, and there were reasonable requirements for decency on the airways. But with the liberal onslaught against traditional morality, such laws have gone by the wayside, with the help of the United States Supreme Court siding with the liberal element. Now, it is difficult to even regulate child pornography. In a case that will be discussed below, the Supreme Court struck down a regulation against "virtual" child pornography on the airways. This is all done under the completely fallacious reasoning that such things are protected free speech.

Not only are such liberals opposed to real freedom of speech, but they want to revise everything so that they can force their particular views on all of us, and their success so far has been truly amazing.

They want to revise our dictionaries to comply with their views of political correctness. This has already been done to some extent, and I expect it to continue.

They want to revise our Bible to make it comply more with feminist views, and to change the many condemnations of homosexuality. Many want revisions to make Jesus appear as a mere prophet and not the Son of God. Guess what? It is being done!

They want to revise history and our textbooks in school to reflect their leftist views. Sure enough, it is being done! These people have no respect whatsoever for our Founders, or our Constitution.

They continually try to change our Constitution from the views of our Founders, and those who ratified our Constitution, to their own leftist views. Here again their efforts have been amazingly successful particularly in the United States Supreme Court. This has been a very disturbing thing to many legal scholars, and it prompted me to write the book, A Way to Save Our Constitution From Judges, which is not yet published. However, an article on this, Saving Our Constitution From Judges, is available on this website.

These liberals want to destroy everything about this country that has made it a great country.

They also want to eliminate all opposition to their views. They not only want to force us to speak in what that dictate as a "politically correct" manner, but they want to force us to think that way, too.

For further reading on this, I recommend the following articles: 

The ACLU and Community Interests, by Ted Rueter. http://www.drpolitics.com/articles/aclu.htm.
No Boy Scouts, by Deroy Murdock.
http://www.nationalreview.com/murdock/murdock200402270920.asp
Death, Liberty and the Pursuit of Happiness, by Bill O'Reilly.
http://www.jewishworldreview.com/cols/oreilly040405.asp
 

Why the "Fairness Doctrine" is Unconstitutional

The true purpose of the doctrine, alone, makes it unconstitutional. It is to limit religious and political speech, and to dictate that the kind of speech the left wants will be presented, and that is directly contrary to the primary purposes of the First Amendment. This would be the direct effect of the legislation. There is nothing the left hates like conservative talk radio, and the Christian broadcasting stations. Both are antithetical to the political views of the left and to the promotion of their immoral ideologies. Having almost all of both the media and academia spouting their doctrines is not enough for the left. They want a complete monopoly. Their views cannot withstand objective analysis, and they know it. That is also one of the reasons that they have not been successful in their efforts to establish liberal talk radio, although the liberals have the same opportunities as the conservatives.

The following are some excerpts from Why the Fairness Doctrine is Anything But Fair, by Adam Thierer, and published by The Heritage Foundation in 1993, when this legislation first raised its ugly head again:

...It would codify a 1949 Federal Communications Commission (FCC) regulation that once required broadcasters to "afford reasonable opportunity for the discussion of conflicting views of public importance." The fairness doctrine was overturned by the FCC in 1987. The FCC discarded the rule because, contrary to its purpose, it failed to encourage the discussion of more controversial issues. There were also concerns that it was in violation of First Amendment free speech principles. The legislation now before Congress would enshrine the fairness doctrine into law. ***

The fairness doctrine's constitutionality was tested and upheld by the U.S. Supreme Court in a landmark 1969 case, Red Lion Broadcasting v. FCC (395 U.S. 367). Although the Court then ruled that it did not violate a broadcaster's First Amendment rights, the Court cautioned that if the doctrine ever began to restrain speech, then the rule's constitutionality should be reconsidered. Just five years later, without ruling the doctrine unconstitutional, the Court concluded in another case that the doctrine "inescapably dampens the vigor and limits the variety of public debate" (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241). In 1984, the Court concluded that the scarcity rationale underlying the doctrine was flawed and that the doctrine was limiting the breadth of public debate (FCC v. League of Women Voters, 468 U.S. 364). This ruling set the stage for the FCC's action in 1987. An attempt by Congress to reinstate the rule by statute was vetoed by President Ronald Reagan in 1987, and later attempts failed even to pass Congress.

(http://www.heritage.org/Research/Regulation/EM368.cfm)

The article gives a good explanation of why the doctrine did not work in the first place and what is wrong with such ideas now.

The following is from a very comprehensive legal article on the subject by a knowledgeable attorney with broadcasting experience, The Fairness Doctrine: A Solution in Search of a Problem, by Adrian Cronauer:

*** The political philosophy underlying the Fairness Doctrine not only provides a rationale for the exercise of governmental content regulation in over-the-air broadcasting, but also lays the groundwork for the expansion of governmental power into other electronic media, including cable, satellite, direct distribution systems, and future technologies. ***

In 1984, the Supreme Court invited an action which would give it a chance to reverse Red Lion. In FCC v. League of Women Voters of California, the Court said if the Commission were to show the "fairness doctrine [has] `the net effect of reducing rather than enhancing' speech," the Court would be forced to reconsider the doctrine's constitutional basis.(note 59) However, no test case appeared. ***

By contrasting the fifty years with the Fairness Doctrine in effect with the seven years since the FCC abandoned it, one must conclude that the Fairness Doctrine did not, in fact, increase the likelihood of public exposure to varying viewpoints. Rather, the Fairness Doctrine had exactly the opposite effect and, if reinstated, will not only act as an impediment to the public's right to know but will actually accelerate its negative effect on that right.(note 75) ***

Conclusion

Allowing the "invisible hand" of market forces to operate in the marketplace of ideas accommodates all viewpoints with enough proponents to warrant attention, and achieves the goals of the First Amendment without intrusive governmental intervention. As predicted by the FCC's 1985 Fairness Doctrine Report, the dynamics of the information-services marketplace assures the public more than sufficient exposure to controversial issues of public importance.(note 115) ***

( http://www.law.indiana.edu/fclj/pubs/v47/no1/cronauer.html )

As explained in the Cronauer article, the original fairness doctrine was enacted in the infancy of radio broadcasting, when not only the available stations were few, but the frequencies on which they could broadcast were few. Everything from the ship to ship radio and the radio stations were interfering with each other. The conditions at that time were why the Supreme Court upheld the FCC regulation in the Red Lion Broadcasting case in 1969. Conditions are altogether different now. The frequencies are almost unlimited, interference is easily controlled; and the number of broadcasters and stations have tremendously increased, because of the greatly increased technology.

A few of the important United States Supreme Court cases on this subject will considered in relation to the "Fairness Doctrine" and what is now considered as a part of protected speech.

As noted above, the Supreme Court, in RED LION BROADCASTING CO. v. FCC, 395 U.S. 367 (1969) affirmed the Constitutionality of the doctrine as then used by the FCC. Below are a few of the statements from Justice White who wrote the opinion for the Court:

*** The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. ***

... On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater - Extremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a "book to smear and destroy Barry Goldwater." 2 When Cook heard of the broadcast he [395 U.S. 367, 372]   concluded that he had been personally attacked and demanded free reply time, which the station refused. ***

The fairness doctrine finds specific recognition in statutory form, is in part modeled on explicit statutory provisions relating to political candidates, and is approvingly reflected in legislative history.

In 1959 the Congress amended the statutory requirement of 315 that equal time be accorded each political candidate to except certain appearances on news programs, but added that this constituted no exception "from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." ***

The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.

Although broadcasting is clearly a medium affected by a First Amendment interest, United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948), differences in the characteristics of new media justify differences in the First Amendment standards applied to them. ***

It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, 16 as the Court has noted at length before. National Broadcasting Co. v. United States, 319 U.S. 190, 210 -214 (1943). It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation; and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few. ***

This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in 326, which forbids FCC interference with "the right [395 U.S. 367, 390]   of free speech by means of radio communication." Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. ***

... And if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. [Emphasis supplied] ***

... But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials ***

In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and [395 U.S. 367, 401]   ruling at issue here are both authorized by statute and constitutional. 28 The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed and the causes remanded for proceedings consistent with this opinion. ***

 

Unfortunately, although the Court in the Red Lion Broadcasting case recognized the application of The First Amendment to broadcasting over the airways, it did no analysis as to the intention of our Founders behind the amendment, except to recognize that political speech was a factor.

The MIAMI HERALD PUBLISHING CO. v. TORNILLO, 418 U.S. 241 (1974) is more applicable to cases in the broadcasting fields today, because of the enormously increased broadcasting media we have today; although that case was applicable to a newspaper. After the appellant newspaper had refused to print appellee's replies to editorials critical of appellee's candidacy for state office, appellee brought suit in Florida Circuit Court based on Florida's "right of reply" statute that grants a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper, and making it a misdemeanor for the newspaper to fail to comply. The United States Supreme Court held the statute unconstitutional on the grounds that it violated the First Amendment's guarantee of a free press. Chief Justice Burger wrote the unanimous opinion for the Court. There were two concurring opinions, one by Brennan in which Rehnquist joined, and one by White. The following are excerpts from the primary opinion:

*** In New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), the Court spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." ***

... If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment ... . ***

... An attitude strongly adverse to any attempt to extend a right of access to newspapers was echoed by other Members of this Court in their separate opinions in that case. [Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973)] ***

... The clear implication has been that any such a compulsion to publish that which "`reason' tells them should not be published" is unconstitutional. *** [Emphasis added]

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. *** [Emphasis added]

... It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. *** [Emphasis added]

From the concurring opinion of Brennan, joined by Rehnquist:

I join the Court's opinion which, as I understand it, addresses only "right of reply" statutes and implies no view upon the constitutionality of "retraction" statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction. [418 U.S. 241, 259]   ...

Justice White, concurring:

... According to our accepted jurisprudence, the First Amendment erects a virtually insurmountable barrier between government and the print media so far as government tampering, in advance of publication, with news and editorial content is concerned. New York Times Co. v. United States, 403 U.S. 713 (1971). ...

In FCC v. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, 468 U.S. 364 (1984), pertained to the Public Broadcasting Act of 1967 (Act) establishing the Corporation for Public Broadcasting (CPB), a nonprofit corporation, to disburse federal funds to noncommercial television and radio stations in support of station operations and educational programming. Section 399 of the Act forbids any noncommercial educational station that receives a grant from the CPB to "engage in editorializing." The Supreme Court held that Section 399 was unconstitutional.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL; and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting statement, post, p. 402. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and WHITE J., joined, post, p. 402. STEVENS, J., filed a dissenting opinion, post, p. 408.

From the majority opinion:

*** First, the restriction imposed by 399 is specifically directed at a form of speech - namely, the expression of editorial opinion - that lies at the heart of First Amendment protection. ***

... Preserving the free expression of editorial opinion, therefore, is part and parcel of "a profound national commitment . . . that debate on public issues should be uninhibited, robust, and wide-open." [Emphasis added] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). ***

... [Section] 399 accomplishes only one thing - the suppression of editorial speech by station management. ***

As to the "Fairness Doctrine" the Court stated in Footnote 12:

As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine "[has] the net effect or reducing rather than enhancing" speech, we would then be forced to reconsider the constitutional basis of our decision in that case. [Emphasis added] 395 U.S., at 393 .

The primary basis for the dissent of Rehnquist, Burger and White was simply:

Here, in my view, Congress has rationally concluded that the bulk of taxpayers whose moneys provide the funds for grants by the CPB would prefer not to see the management of public stations engage in editorializing or the endorsing or opposing of political candidates. Because Congress' decision to enact 399 is a rational exercise of its spending powers and strictly neutral, I would hold that nothing in the First Amendment makes it unconstitutional.

Justice Stevens:

*** In my judgment the interest in keeping the Federal Government out of the propaganda arena is of overriding importance. That interest is of special importance in the field of electronic communication, not only because that medium is so powerful and persuasive, but also because it is the one form of communication that is licensed by the Federal Government. ***

Members of Congress, not members of the Judiciary, live in the world of politics. When they conclude that there is a real danger of political considerations influencing the dispensing of this money and that this provision is necessary to insulate grantees from political pressures in addition to the other safeguards, that judgment is entitled to our respect. ***

Here, it is true that taxpayers might find it offensive if their tax moneys were being used to subsidize the expression of editorial [468 U.S. 364, 419]   opinion with which they disagree, but it is the fact of the subsidy - not just the expression of the opinion - that legitimates this justification. Furthermore, and of greater importance, the principal justification for this prohibition is the overriding interest in forestalling the creation of propaganda organs for the Government.

In this particular case, I tend to agree with the dissent to the extent that if the Government is creating the organization and furnishing part of the money, it should be left to Congress as to whether or not it shall be used for partisan political purpose. But the importance of the case to this paper is that the application of the First Amendment to broadcasting is clearly recognized. It is contrary to the First Amendment to dictate the content of it, instead of leaving that to the discretion of the speaker or publisher.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the U. S. Supreme Court stretched the Freedom of Speech concept to an extent legal scholars could not have imagined fifty years ago. This case was on the federal child pornography act. The Child Pornography Prevention Act of 1996 (CPPA) expanded the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. 2256(8)(A), but also "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," 2256(8)(B), and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct," 2256(8)(D). The Court held that Sections 2256(8)(B) and 2256(8)(D) were unconstitutional, and this kind of child pornography is protected as "free speech" under the First Amendment.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined as to Part II. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, J., joined except for the paragraph discussing legislative history.

The dissent noted that legislative record, which makes plain that the [CPPA] was intended to target only a narrow class of images--visual depictions which are virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children engaging in identical sexual conduct.

We see from these cases the extent to which the ideas of freedom of the press and freedom of speech under the First Amendment have been extended.

Conclusion

I believe that it is now clear that in this day and time enactment of the so-called "Fairness Doctrine" would be patently unconstitutional for the following three reasons:

1. The act violates the plain wording of the First Amendment, which provides that: "Congress shall make no law ... abridging the freedom of speech, or of the press ... ."

2. The act would force broadcasters to spend a substantial amount of their own time, for which they are paying, to present views contrary to their own, and contrary to their principles. It is completely contrary to preserving the "free expression of editorial opinion."

3. It would not only have the "net effect or reducing rather than enhancing speech," it would actually kill a lot of speech and a lot of programs, because many with principles would simply refuse to present things that were directly contrary to their political and religious principles. (This is of course exactly what the Left wants.)

It would be a terrible travesty of justice that even forms of child pornography are afforded protection on our airways as "free speech," and freedom of political and religious speech is not protected, when these latter two kinds of speech are exactly what our Founders wanted primarily to protect.

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