They all agreed that the fairness doctrine was bad policy. But that didn't stop the panelists at one Nov. 13 session of the Federalist Society's annual convention from finding disagreement elsewhere.
Jamin Raskin of American University's Washington College of Law said the doctrine, which required holders of broadcast licenses to present controversial issues in an equitable and balanced manner, was an ineffective rule, but it was "based on reasonable principles." The doctrine was abolished in 1987.
"There was nothing about it that was undemocratic or unconstitutional. In fact, the idea that you print replies or allow responses is not anathema to most journalistic entities," Raskin said. He added that he thinks concerns about reviving the doctrine have become a "proxy for other concerns" such as net neutrality and the consolidation of media corporations.
Seton Motley, communications director for the Media Research Center, and Thomas Hazlett, a law and economics professor at George Mason University, both disagreed that the fairness doctrine was ever based on reasonable principles. Each said that it infringed on the right to free speech in all instances.
Motley said that failed attempts to bring the doctrine back have led to its proponents "taking different paths to get to the same place." For example, he said, the left is "now focusing on the nebulous terms of media diversity and localization."
Hazlett said the best example of free speech in action can be found on cable channels, which is part of the reason why broadcasters tried to have their creation blocked.
The conversation heated up after Raskin argued that the latest threat to free discourse was the Supreme Court's decision to hear Citizens United v. FEC, which could remove limits on corporate donations to political campaigns. The panel's moderator, Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit, asked whether news outlets should be allowed to endorse candidates when many are run by large corporations.
"No, that's freedom of the press," Raskin said. "But they shouldn't have the right to donate to campaigns."
Motley then turned the discussion toward news outlets such as National Public Radio, which receives some of its operating costs from the government. "If you go to a Catholic school, you're going to get a Catholic education. If you listen to government radio, you're going to get a government education," Motley said.
"That's a very serious point, and I think it's one worth considering. So are you taking an anarchist perspective and saying we should have no government?" Raskin asked.
"No, I'm saying we should have no government radio," Motley responded.
Hazlett proposed that the FCC be limited to certain technical functions such as ensuring that competing outlets do not jam their competitors' signals. "Anything other than that is antithetical to the First Amendment," he said.
Sentelle closed the session at that point, saying, "I'm afraid I'm going to have to jam all of your signals."