Once More, with Feeling: The Fairness Doctrine Is Not the Answer

By Charles C. W. Cooke

Tuesday, April 27, 2021

 

Tucker Carlson said something silly on Fox last night — silly, but well within the bounds of what typically passes for commentary on the sewer that is cable news. In response, well-connected figures within the journalistic world immediately did what they seem always to do these days: They mused aloud about how they might punish Carlson by summarily removing him from his role.

 

The proposals ranged a tad. Some thought Tucker, for his rant against parents who fit their children with masks, should be arrested for having committed the equivalent sin to shouting “fire in a crowded theater” — an ignorant suggestion, given that his words didn’t come close to crossing the threshold set in Brandenburg v. Ohio. Some thought that Fox should fire him, or that his advertisers should boycott him — a more tolerable submission than “involve the federal government!” but still an illiberal one at root. Most popular of all, though, was that hoary chestnut: Bring back the Fairness Doctrine!

 

This is a stonkingly bad idea.

 

It’s also a non sequitur, because, whatever its merits may have been (color me skeptical), the Fairness Doctrine simply doesn’t apply to this situation. Tucker Carlson appears on Fox News, which is a cable channel, and, as decades of Supreme Court precedent maintain, the federal government’s power over cable is extremely limited in scope.

 

The Fairness Doctrine was contrived in 1949 as a means by which to ensure that the holders of broadcast licenses were not misusing the privileges they had been granted by the government. Back then, the only way of broadcasting television and radio was over the airwaves. Because the spectrum within which those broadcasts were transmitted is narrow — and because, as a result, their use is a zero-sum game — the federal government constructed a licensing system that reserved certain frequencies to certain organizations. In essence, the Fairness Doctrine was the quid pro quo: The federal government agreed to reserve a particular space on the spectrum for, say, CBS, and, in return, CBS agreed to the federal government’s rules.

 

The Fairness Doctrine, which required those using the public airwaves to present all sides of an argument, was one of those rules.

 

From a classically liberal perspective, this arrangement was always fraught. But, because the government was heavily involved, the courts did not consider it a violation of the Constitution. “There is nothing in the First Amendment,” the Supreme Court ruled unanimously in 1969, “which prevents the Government from requiring a licensee to share his frequency with others.” Or, put another way: Our frequency, our rules.

 

In 1987, the FCC revoked the rule. From my perspective, this was a good thing (even if the Constitution permits the federal government to set such rules for narrow spectrum media, it does not mandate it). But, whether one agrees or disagrees with that, one should understand that this revocation had precisely nothing to do with cable news, which is not broadcast over the public airwaves, which is not using a finite or zero-sum resource, and which, as a result, would be not be affected by the Fairness Doctrine even if it were restored. Under American law, Fox News is treated in the same manner as is the Washington Post or YouTube: as a private company that enjoys the full array of First Amendment rights, any limitation of which is subject to strict scrutiny in the courts.

 

Which brings us to the second misconception. Suppose, for the sake of argument, that Fox News switched from cable to broadcast, and thereby subjected itself to the superintendence of the FCC. And suppose, in concert, that the Biden administration brought back the Fairness Doctrine and applied it to a newly analog Fox News. What, even then, do its advocates imagine would happen to Tucker? Last night, Carlson said this:

 

As for forcing children to wear masks outside, that should be illegal. Your response when you see children wearing masks as they play should be no different from your response to seeing someone beat a kid in Walmart. Call the police immediately, contact child protective services. Keep calling until someone arrives.

 

This is a silly thing to say — although, again, it does not even crack the top ten of silly things that have been said on cable (including on Fox) during the last month. But it is not at all clear what the Fairness Doctrine has to do with it. Do those calling for its reinstatement want to oblige Fox to run segments featuring anchors who say, “Well, given that you ask, my view is that we actually shouldn’t call the police when we see a child wearing a face mask outside”? And, if so, how far would we take this practice? Should Rachel Maddow have someone sitting next to her at all times shaking his head and offering rebuttals? Should CNN have to run three years’ worth of segments explaining that its coverage of “Russiagate” was a disgrace? Should Joy Reid be accompanied at all times by an exhausted lawyer? Should Chris Cuomo be paired with Casey DeSantis?

 

None of this would make any sense, of course. But then, it doesn’t have to, because “bring back the Fairness Doctrine” is not really a policy, it’s a euphemism: for “shut down Fox News.” There is a certain sort of progressive in this country who believes right down to his core that the federal government should step in and silence the likes of Tucker Carlson, but who is aware nevertheless that saying that makes one sound a bit . . . well, a bit fascist-y. And so, instead of saying that, he says something else — something that, on the face of it, sounds like a call for more debate, not less, but that, in reality, is designed to do one thing and one thing alone: censor the people he dislikes.