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.
No comments:
Post a Comment