Last week, we wrote about how the Fairness Doctrine was applied before it was declared unconstitutional by the FCC in the late 1980s. When we wrote that entry, it seemed as if the whole battle over whether or not it would be reinstated was a tempest in a teapot. Conservative commentators were fretting over the re-imposition, while liberals were complaining that the conservatives were making up issues. But what a difference a week makes.

Perhaps it is the verbal jousting that is going on between the political parties over the influence of Rush Limbaugh that has reignited the talk of the return of the Doctrine, but this week it has surprisingly been back on the front burner  – in force. Senator Debbie Stabenow from Michigan said on a radio show that the positions taken by talk radio were unfair and unbalanced and that “fairness” shouldn’t be too much to ask (listen to her on-air remarks) . When prompted by the host as to whether there would be Congressional hearings or legislation, the Senator said that it would certainly be something that Congress would consider.

And, all over, there were other discussions about the potential return of the Doctrine in some form or another.  One of my partners, Bob Corn-Revere, wrote an article for the Media Institute blog expressing concern about the possibility of the return of the doctrine, either directly or through some form of localism regulation that would mandate specific types of programming. Republican FCC Commissioner Robert McDowell expressed similar concerns about the return of the Doctrine perhaps disguised as some sort of Localism requirement that mandates full coverage of local controversies. Former FCC General Counsel Henry Geller Geller wrote in response to Commissioner McDowell and defended the doctrine (while expressing doubt about its return). Mr. Geller stated that the doctrine was not that much of a burden to broadcasters as it did not demand mathematical equality (as we stated in our post last week), but instead only required that a broadcaster allow those from both sides of an issue to present their views. He suggested that even Rush allows that by inviting guests to discuss and debate topics with him on the air.

But while the doctrine in theory seem easy to comply with, there were many battles at the FCC costing broadcasters many thousands of dollars in legal debates over whether what they aired really did give all sides of an issue an adequate opportunity to have their say. And, more importantly, by its very nature, the Doctrine is a burden on the free speech rights of broadcasters, and puts the government in a position where it should never be – deciding what speech should or should not be made.

Look at the logical extension of the Fairness Doctrine. While it is seemingly a debate of liberals against Rush that is prompting the talk right now – the Doctrine requires fairness on all controversial issues of public importance.  Sometimes there are far more than 2 sides to an issue.  Who decides which sides get heard and which don’t?  For instance, right now, the Catholic Church is embroiled over a controversy about some fringe priests who deny the existence of the holocaust. If a station were to air one of the many movies now in theaters about the holocaust, would the Fairness Doctrine compel broadcast stations to provide time to the deniers to advance their views? Affirmative action is another issue that may come to the fore in the near future. Client stations of mine have had to deal with political candidates from avowedly racist parties, and to put these candidates ads on the air under the equal time rules that apply to candidates. Under a Fairness Doctrine, would they also have to allow spokesman from these groups to have a say when affirmative action or discrimination issues are discussed?

These may seem like extreme examples – where all rational people should agree that these extreme views should not be allowed on the air – that more moderate voices may suffice to provide balance on affirmative action debates, and that no one can deny the existence of the holocaust, and that therefore it is not a controversial issue requiring fairness. But even these seemingly obvious determinations contain value judgments that the government should not be in the business of making in these extreme circumstances any more than it should be making these distinctions in the much closer cases that would arise every day.  No one would ever suggest that the government should be able to regulate what content goes on the editorial pages of the New York Times or the Washington Times. No one should be able to dictate that the Nation and the National Review present both sides of every issue that they cover. Why should broadcasters have a different version of the First Amendment applicable to their speech?

With an administration and a Congress that have expressed concerns over the abuse of human rights and the trampling of constitutional protections under the last administration, how can Congress seriously talk about the return of the Fairness Doctrine and the First Amendment concerns that such a return would bring? These positions seem so inconsistent that we can only hope that the rumblings that have been heard in Washington this last week are just rumblings – outgrowths of some of the partisan squabbles brought about by the intense debate over how best to get the economy moving again that will pass with time. But broadcasters and civil rights advocates of all political persuasions should be on guard against any potential infringement of their rights – and be read to do battle if these proposals are really put forward.