A recent conference at American University on Red Lion Broadcasting Corp. v. Federal Communication Commission’s (FCC) legacy provided strong representation for last summer’s anti-conservative talk radio study. In the “The
Structural Imbalance of Political Talk Radio,” the Center for American Progress (CAP) and Free Press authors conclude that talk radio has an unfairly high conservative
bias, with conservative ideas monopolizing 91% of radio programming
aired by the nation’s top five broadcasters.
“Our conclusion is that the gap between conservative and progressive
talk radio is the result of multiple structural problems in the U.S.
regulatory system, particularly the
complete breakdown of the public trustee concept of broadcast, the
elimination of clear public interest requirements for broadcasting, and
the relaxation of ownership rules including the requirement of local
participation in management,” write the authors (emphasis added).
They call for greater FCC and Congressional scrutiny of minority
ownership levels, media consolidation, and local responsiveness. The
authors also suggest leveling fines upon broadcasters who fail to
comply with these requirements.
Last year’s Senate hearing on “Localism, Diversity, and Media
Ownership” used language disturbingly similar to the CAP proposals,
prompting Accuracy in Media to warn that the Senate hearing masks a
renewed interest in the Fairness Doctrine. One witness, Alex Nogales, told the Committee that they should rely on Free Press studies which were “much, much better—and they’re recent!”
Could he have been referring to the “Structural Imbalance of Political
Talk Radio,” which is openly hostile to conservatives? In fact, in his
testimony, Nogales, the President of the National Hispanic Media Coalition, accused illegal immigration opponents of committing “hate crimes” on the public airwaves.
Now the CAP and Free Press representatives are again pushing for
“structural” changes to alter the “balance” of progressive and
conservative programming. Their forum: the AU Washington College of Law. Consider the following:
- Free Press published University of Chicago Professor Cass R. Sunstein’s 1995 book, Democracy and the Problem of Free Speech.
- Both CAP and Free Press representatives were invited to speak at the AU conference.
- A representative from the Media Access Project, Andrew Schwartzman spoke at the conference. MAP openly favors the return of the Fairness
Doctrine and opposes QVC’s home shopping network because it doesn’t
serve the “public interest.” He said, “As far as I’m concerned, and of
course [we] wind up very divided on this, the Red Lion case did hold
that something like the Fairness Doctrine public interest obligation is
statutorily mandated and the requirement of fairness, not the specific
policy called “Fairness Doctrine,” I believe is statutorily mandated.”
The unanimous Red Lion court ruling upheld the FCC’s authority to impose
“equal time” and “response to personal attack” provisions under the
Fairness Doctrine because the free speech of viewers outweighs the free
speech of broadcasters. It also upheld the FCC’s imposition of these
additional requirements as in continuity with the Congressional
legislation, denying that the requirements were either vague or
“We need not approve every aspect of the fairness doctrine to decide
these cases, and we will not now pass upon the constitutionality of
these regulations by envisioning the most extreme applications
conceivable…but will deal with those problems if and when they
arise,” concluded Justice Byron White for the court majority opinion. In the 1970’s, Justice White also supported forced busing as a remedy for segregation.
Of the 19 speakers at the
conference, only three criticized Red Lion’s court decision—and several
supported the expansion of government regulation into the internet.
Dr. Philip M. Napoli, a Professor at Fordham University,
lectured on possible research methods to improve media analysis. “You
can look back to the time when the Fairness Doctrine was eliminated,
this is interesting to see something then that we probably wouldn’t see
today, which is that for a large extent the Fairness Doctrine was
eliminated primarily on the basis of a lot of anecdotal reports from
broadcast licensees about the burden that they were encountering due to
abiding by the Fairness Doctrine,” he asserted. Napoli called for
mandatory media content archiving and greater scientific rigor in for
FCC studies. His work has been supported by both CAP and the Ford
“The third myth regarding Red Lion is that it somehow unleashed the FCC
to overburden poor, struggling broadcasters with unnecessary
regulation, particularly the supposedly onerous Fairness Doctrine.
These myths are, I will argue, nonsensical and ahistoric,” said Mark Lloyd, who works for the Leadership Conference on Civil Rights. Lloyd actually co-authored “The Structural Imbalance of Talk Radio” and is a former Senior Fellow at CAP.
In a July CAP policy briefing, the Georgetown affiliate professor argued that “How broadcast licensees meet their
responsibility of fair discussion of important public issues has varied
considerably over 80 years of federal regulation. But the image of
eager federal bureaucrats peering over the shoulders of all of
America’s radio talk show hosts with a stopwatch in hand is as absurd
as it is impractical.” He writes that “All of these public policy
objectives are there for Congress and the FCC to act upon within
current law. There is no need to return to the Fairness Doctrine.”
There is no need to return to the Fairness Doctrine because
policymakers believe they can achieve the same result with public
“This means that under the 20th century general interest
intermediaries, when they’re working well, all of us will have access
occasionally to points of view that we despise and abhor…and to
topics that we thought didn’t interest us,” argued Sunstein in his
What Sunstein means is that liberals and conservatives should be forced
to experience news from the side of the ideological spectrum—in the
name of “free speech.” What could be closer to the Fairness Doctrine,
which requires radio broadcasters to provide equal air time to both
conservative and liberal points of view?
Sunstein questioned whether this will involve government intervention,
saying “It’s possible that what we should do now is nothing,” and he
added that there was a question as to “whether a great deal can be done
privately not publicly.” Yet just a few minutes later, he said “The
second idea point is the Red Lion vision of something like deliberative
democracy could be promoted through public spaces on the internet and
on the media much more than we’re now doing.” This “public space” would
be funded by taxpayers and regulated by the government. Otherwise, it
would have to be considered private.
As AIM has reported in its book, The Death of Talk Radio,
content regulation has a chilling effect on radio programming, leading
to less quality content and more bureaucratic paperwork. It also
involves government inspection of what people say, even if only
to determine the ideological slant of the program. Do we really want
the government to be deciding what is liberal or conservative?
This point remains especially cogent, since the designers of the
CAP/Free Press study specifically warned that their intention was to
ensure equal representation of liberal values as a protection against the unfair radio dominance by the conservative media.
“What will take for it is for a Democratic president to put in place a
Democratic majority at the FCC that can then decide—with the support of
a Democratic Congress—to bring back the Fairness Doctrine. In other
words, that day may not far off on the Fairness Doctrine, [it] may be
ruling our airways again,” warned Senator Norm Coleman (R-Minnesota) last year. “This issue is not which broadcaster is fair
and which is not. The issue is who decides. I believe fairness is what
the American public decides is fair, not some Washington politician or
bureaucrat,” he said.
Similarly, President George W. Bush argued at the 2008 National Convention of Religious Broadcasters that
“We know who these advocates of so-called balance really have in their
sights: shows hosted by people like Rush Limbaugh or James Dobson, or
many of you here today. By insisting on so-called balance, they want to
silence those they don’t agree with. The truth of the matter is, they
know they cannot prevail in the public debate of ideas. They don’t
acknowledge that you are the balance …”
Marvin Ammori, a Free Press lawyer, told the AU audience that
“the Fairness Doctrine has long since been repealed, it will not come
back,” and accused those who disagree of either being “dishonest,”
using the issue as a “political tool,” or being “overly zealous.”
Ammori’s assertions overlook recent legislative calls for the
Fairness Doctrine. In 2005, two New York Representatives, Congresswoman
Louise Slaughter (D-NY) and Congressman Maurice Hinchey (D-NY), introduced bills which would have reinstated the Fairness
Doctrine: the “MEDIA Act” (HR 4710) and the Media Ownership Reform Act
The debate continues to this day. Last summer, the Broadcaster Freedom Act of 2007 (S. 1748) was introduced to the Senate. It was read twice and then
referred to the Committee on Commerce, Science, and Transportation (the
same Committee that held a stacked hearing on Diversity, Localism, and
Media Ownership). No meaningful action has been taken since then.
Similarly, the House component bill, H. R. 2905, has seen little action. Congressman Mike Pence (R-Indiana) and others filed a discharge petition (No. 110-3) to the
House Rules Committee which would force the House to discuss and vote
on the Broadcaster Freedom Act. The discharge petition can only take
effect with the support of 218 Congressmen. It currently boasts 194 signatures.
In other words, the majority party has, through Congressional maneuvering, prevented the Act from coming to the House floor.
If progressives do not intend to revive the Fairness Doctrine, then why
not let Congress vote on the bill? Are they too scared it will be