Sometimes the past seems an impenetrable fog where shape-shifting shadows move mysteriously as their words drift to us in tantalizing fragments. The names Hargis, Douglas and Red Lion are like that. Individually they remain meaningless to most of us. Together they become an intriguing combination that if you know their relationship turns shadows into substance and unlocks the gridlock of one of the half-dozen key debates of our times. The outcome of that debate will decide whether we remain a democracy or a mediacracy.
One of the most important foundations for the current Republican Counterrevolution was the repeal of the Fairness Doctrine during the Reagan Administration. First enacted in 1949, the FCC ruling looked into the future and decided that because they operated in the public interest, the mass media should present all sides of controversial questions. The Supreme Court upheld the Fairness Doctrine in the 1969 Red Lion case, one that is still generally recognized as one of the Court’s landmark decisions.
Red Lion not only involves the Religious Right but also foretells exactly what would happen with repeal of the Doctrine. The case began when the Reverend Billy James Hargis, the Jerry Falwell of his day, accused the author of a book on Barry Goldwater of being a Communist. The author sued under the Fairness Doctrine and the Court found in his favor. In the Red Lion decision the Court said the Fairness Doctrine serves to “enhance rather than abridge the freedoms of speech and press protected by the First Amendment.” It also noted that “when a personal attack has been made on a figure involved in a public issue” the Doctrine requires that “the individual attacked himself be offered an opportunity to respond.”
In 1987, an FCC packed with commissioners appointed by Ronald Reagan voted to repeal the Fairness Doctrine. When Congress tried to overrule the decision by passing a law extending the Doctrine, Reagan vetoed it. The repeal of the Fairness Doctrine opened the door wide for ideologues like Rush Limbaugh and Bill O’Reilly and marked a change in the journalism of this country as the ideal of objectivity—-however imperfect it has been–found itself under siege by entertainers whose scripts stressed personal attacks and partisanship. ideology.
Red Lion must be seen in the context of another key Supreme Court decision, United States vs. Paramount, otherwise known as the “Divorce Decree: because it “divorced” film distribution from theaters. Justice William O. Douglas’ 1948 opinion is instructive. “As we pointed out in United States v. Griffith,” he wrote, “Size is itself an earmark of monopoly power. For size carries with it an opportunity for abuse.”
FCC Commissioner Jonathan Adelstein referred to the connection between the media concentration noted in Paramount and Red Lion in one of his most important speeches, “The Last DJ?: Finding a Voice on Media Ownership.” Presented to the Future Music Coalition Policy Summit at Georgetown University in 2003, Adelstein’s speech is prophetic for its insights into the consequences of media concentration and lack of fairness for American Democracy.
The FCC is charged with protecting what the Supreme Court referred to as an “uninhibited marketplace of ideas.” Let me read from that seminal First Amendment decision: “It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.” Thus, the Supreme Court of the United States itself has said that the FCC may not abridge the right of Americans to have access to ideas and to creativity.
Both quotes come from Red Lion, which still has yet to be overruled. But the major part of Adelstein’s speech is devoted to the issue of media concentration Douglas raised in Paramount. Adelstein made that point in a memorable paragraph:
Any changes that the FCC makes to its media ownership rules could massively and irreversibly change the media landscape. These changes will affect all of us as viewers and listeners. The FCC must proceed very cautiously, because if we permit further media consolidation and it turns out to be a mistake, we will find it difficult, if not impossible, to put the toothpaste back in the tube.
Almost five years after Adelstein’s speech, the FCC has moved to allow for future media concentration while the voices of vitriol crowd the airwaves. We also now have the first overtly partisan television network in history, Fox–whose news division is headed by none other than former GOP strategist Roger Ailes. He created the infamous “revolving door” ads andnarrowly escaped conviction for illegally coordinating ads between PACS and the George I Bush campaign on a tie vote.
Meanwhile a Republican FCC has nibbled away at Red Lion. In a 2005 article, “The Fairness Doctrine: How We Lost It and Why We Need It Back,” Steve Rendell wrote that in 2004 a coalition of media giants was preparing a Supreme Court challenge to Red Lion. That never occurred, but given the decided rightward swing of the Court, especially in business cases, the prospect of the Court overruling Red Lion is quite real.
Even more ominously, Indiana Republican and former talk radio and television host Mike Pence sponsored an amendment to the FCC’s appropriations bill “prohibiting any funding to the FCC for the enforcement of the Fairness Doctrine. Pence’s amendment had 111 sponsors. The amendment passed the House 309-115. Nancy Pelosi could not even keep her own party in line on this one as 113 Democrats voted with Pence. Among prominent Democratic House members supporting Pence was Democratic Caucus Chair Rahm Emanuel.
A similar amendment in the Senate by Minnesota’s Norm Coleman almost passed 49-48 along party lines. Only a point of order by Ted Kennedy which required a two-thirds vote for the amendment to pass blocked approval. Two Democrats did not vote, giving the GOP the edge. They were Tim Johnson of South Dakota, who is ill, and Barack Obama. It hurts to say this, but that “not voting” could wound Obama’s campaign.
Given these developments the importance of Adelstein’s point cannot be overstated: if one or a few media giants gain control of our sources of information without the inhibitions of the Fairness Doctrine then democracy ends up in the hands of the highest bidder and the lowest common denominator.
Some people including former FCC Chairman Michael Powell argue that the Internet has created a new media environment that allows for a wider range of voices, thus eliminating any need for the Fairness Doctrine. This argument, which Powell used when the FCC tried to increase media concentration several years ago, will not fly. Those of us who get sucked into that by certain voices on the Internet are whistling in the dark. In his must-read article “New Establishment Rising? The End of the Flat Blogosphere,” Chris Bowers notes the 1% of all progressive blogs receive 95% of the traffic. He goes on to note that the entry costs to this “short head” of the national, progressive, political blogosphere have become so high:
That it has become a near impossibility for a new independent, individual actor to join the elite ranks of the national, progressive political blogosphere.
So with media concentration now entering the Internet, the importance of media fairness only increases. In a world of concentrated, distorted media economic justice can become an illusion, educational equity becomes useless except for those knowledgeable about the media’s tricks, and voting freedom becomes as valid as throwing darts at a ballot. Figuring out whether the playing field is level becomes the equivalent of floating weightlessly in space where up and down, left and right, lose meaning.
To paraphrase an common saying, “It’s about justice.”
Afterword:
A few questions for readers:
1) If we reinstate the Fairness Doctrine what form should it take?
2) Should it apply to the Internet?
3) If so how would it apply to blogs?
4) Should there be limits on media concentration of the Net?
5) What would they look like?
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