Sunday, August 17, 2008

The Fairness Doctrine

George Will identifies the Fairness Doctrine as one of the standard "Democratic priorities" in his column today. From a constitutional standpoint, the Fairness Doctrine (FD) is a loathesome rule, so it's kind of embarrassing that some Democrats want to reinstate the FD. From a political standpoint, though, reinstating the FD makes perfect sense if you're a Democrat: conservatives dominate talk-radio, and the FD would reduce the conservatives' talk-radio advantage. I'm quite confident that the Supreme Court, if presented with another First Amendment challenge to the FD, would strike down the FD as unconstitutional this time (in light of the huge technological advances over the past 40 years). So when it comes down to it, I really don't care that some Democrats want to reinstate the Fairness Doctrine. The annoying thing about the Fairness Doctrine being labeled a standard Democratic priority, though, is that it allows Republicans to play the role of Noble Defenders of the First Amendment. Anyone who has paid the slightest attention to politics in the last 15 years (at least) knows that the Republicans would be huge fans of the Fairness Doctrine if liberals were the ones dominating talk-radio. So before we let blowhards like Sen. James Inhofe and Rush Limbaugh feign fealty to First Amendment principles, it's worth reminding people that Red Lion Broadcasting Co. v. FCC (1969)—the Supreme Court case upholding the constitutionality of the Fairness Doctrine—was a unanimous decision. That decision garnered the support not only of conservatives Potter Stewart and John Harlan, but also of Hugo Black, the famous First Amendment absolutist. In fact, the opinion was written by none other than Justice Byron White, who today would be the Republicans' dream justice—White dissented in Roe, upheld an anti-sodomy law in Bowers, and was the most vocal advocate of so-called "judicial restraint." (On a side note, Justice White probably has the most impressive resumé ever...literally. He's a member of the College Football Hall of Fame; was the 4th overall pick in the NFL Draft; played in the NFL for 3 years, leading the NFL in rushing for 2 of those years; was a Rhodes Scholar; finished 1st in his class at Yale Law School; served in the Navy during WWII; clerked for Chief Justice Vinson; served as the Deputy Attorney General; and finally, was appointed to the U.S. Supreme Court. That's an incredible resumé.)



Theirs no fairness doctrine

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