Freedom of the Press and the Fairness Doctrine -July 18, 2008

Freedom of the Press and the Fairness Doctrine


Richard J. Garfunkel

July 18, 2008


As usual when it comes to Freedom of the Press issues, Mr. William O’Shaughnessy, the President of Whitney Radio, is in the forefront of the battle. With regards to this issue, it may not be as complicated as it once was thought to be. As most people with a half a wit about them know, Freedom of the Press is not only an international issue of titanic proportions, but its nexus and birth came about not more than a few miles from the WVOX-WVIP studios. John Peter Zenger is well regarded as the progenitor of the issue, which arose over a tainted election held at the Saint Paul’s Church in what is now the city of Mount Vernon back in 1735. It was there, under the so-called watchful eye of the then Governor William Cosby that electoral indiscretions were observed and recorded by reporter and publisher Zenger. He was later arrested for reporting the “truth” as he witnessed it, and was counseled in court ably by his Philadelphia lawyer Andrew Hamilton. (The term “Philadelphia Lawyer” became synonymous with the definition of an excellent lawyer.) As it was reported, his arrest, and incarceration, ended on August 5, 1735, as twelve New York jurors returned a verdict of “not guilty” on the charge of publishing “seditious libels,” despite the Governor's hand-picked judges presiding. Hamilton had successfully argued that Zenger's articles were not libelous because they were based on fact. Zenger published a verbatim account of the trial as A Brief Narrative of the Case and Trial of John Peter Zenger (1736). “No nation, ancient or modern, ever lost the liberty of speaking freely, writing, or publishing their sentiments, but forthwith lost their liberty in general and became slaves” stated Zenger. Because of this landmark action, the concept of Freedom of the Press, became imbued


Since those days we have, to a degree, a free and unfettered press. But, of course, many of us know that from those early days of the pre-revolutionary period, up until the struggle for freedom from Britain, the American-style newspaper played the pivotal or even a monopolistic role in the “information delivery” business. There were other forms of communication, the church pulpit, pamphleteering, broadsides, and public debate. But in those days, the printed news reigned supreme. But for sure, most of the newspapers, in the wake of the revolution, and the establishment of our republic, became political and therefore philosophical organs of their owner’s beliefs. Certainly the philosophical division between the Jeffersonians and the Federalists led to our first real political differences, beyond classic regional needs and issue of slavery. Therefore, these disparate voices and views were articulated mostly in party-supported newspapers. The issue of “freedom of the seas,” and the continuing struggle between Great Britain and France led to feelings that the Jeffersonians were Jacobists, and the Federalists, led by John Adams, were for conservatism and isolationism. The animosities from both sides were most often and affectively spewed forth from their “party-controlled” press. 


Therefore in the age when the “printed word” was king, politics and written opinion were married either in an unholy alliance of strange bedfellows, or with their own hired sycophants. So Freedom of the Press was to a degree, more or less illusionary, because it was more conventionally used to promote a vested political interest. Of course, there is nothing inherently wrong or sacred about that reality. Ironically, today the press, both written and electronic, is still a captive of its advertisers and the politically correct police. Media is always loath to alienate large segments of the population, whether they are gender, racial, religious, or sexually oriented. The so-called “liberal” reforms, which the “right” decries, especially in the workplace, did not come from altruistic legislation alone, or bleeding-heart judges, but the fear of litigation, and secondary boycotts. So it was not our representatives that forced insurance companies to give “domestic partnership” status to people living together, without the sanctification of marriage, but demands from potential customers and clients.  was not our legislature that put “gays” on television in sit-coms and reality-based shows!


Therefore, the concept of Freedom of the Press is not as pure as the driven snow, but it still maybe our strongest freedom. Unlike Freedom of Speech, which means little if  one’s own home or backyard, where one can almost yell epithets to the high heavens, Freedom of the Press has the unique multiplier affect of reaching large multitudes of people. Therefore this power has the ability to affect public policy even on a worldwide basis. Any student of history can relate the power and affect of Gutenberg’s printing press. Many people regard his invention as one of the most critical and important in recorded history. Therefore, one can look at Benjamin Franklin’s early life and learn how he was able to make a small fortune by creating one of America’s first newspaper chains. Without embellishment, we all understand the old saying by George Santayana, “those who cannot remember the past are condemned to repeat.” In the same way “those who control the past, control the present and therefore will dominate the future.”  There is ample evidence of the power one can derive from controlling the “message.” Of course, with that in mind, we want a dispersed and independent media, which falls not under the control, or monopoly of one man, or movement. We want an unfettered “free” press, which is able to express its own views and opinions. But is that a bit too sophomoric? Is that just an idealistic, honor’s class view of the real world.


Of course, there is a “free” press and Freedom of the Press. My sense is that a “free” press, is a press that is independent and unfettered by editorial influence fulminated by sponsors. It was not long ago that Albert Camus said, “A free press can of course be good or bad, but, most certainly, without freedom it will never be anything but bad… Freedom is nothing else but a chance to be better, whereas enslavement is a certainty of the worse.” On the other hand, basically means that the government can make no law to inhibit its editorial view, or what it wishes to report. But government has often controlled what it could depict. Magazines, books, newspapers, and other periodicals were limited by censorship laws regarding language and depiction. In fact, up until the 1930’s and in the late1950’s, when first the Supreme Court declared that the novel Freedom of the PressUlysses was not obscene and later that Lady Chatterley’s Lover also was not prurient, censorship regarding the printed word was rife. Newspapers were no freer to publish obscene language or graphic sexual descriptions than were books. Motion pictures also fell under their industry’s Hays Code in the early 1930’s and these restrictions on content lasted until the 1970’s.


In the same sense, commercial radio, and later television were also subject to strict and wide censorship. On the publicly licensed “free” channels, censorship is still strict, and violators like Howard Stern and the NFL have been heavily fined for indiscreet content, language, or partial nudity. Of course, all of these above issues are probably more of an issue of Freedom of Speech or expression, and not Freedom of the Press. In Jefferson’s day the issue of a free press was not as complicated, and the era of the telegraph, motion pictures, radio, television, and the Internet were generations far into the future.


As media expanded, including the emergence of the nationwide newspaper chains, like Scripps-Howard, Hearst, Gannett and others, the expression of editorial power became more exquisite. Obviously Hollywood, radio, and the newspapers, including the news distribution services; AP, UPI, INS, Reuters, were controlled by a tiny group of individuals and they quite often controlled what was seen, broadcasted, or printed. Apropos of that reality, William Randolph Hearst arrogantly stated to his paid artist-in-residence in Cuba, the famous painter Frederic Remington, “You furnish the pictures and I’ll furnish the war.”


The small independent radio station, newspaper publisher, or studio, could hardly be seen, no less heard, above the roar and reach of the powerful. These powerful and loud “voices” were not controlled by political machinery or a specific party. They were controlled by a small group of individuals who had their own financial, and or, social agenda. Therefore, these individuals could easily and legally use both their editorial power to promote their own interests, or their news reporting to possibly slant the news. Is Rupert Murdock much different than a Hearst, a Roy Howard, a Cissy Patterson, or a Colonel McCormick? As the author and wit AJ Liebling said, “Freedom of the press is guaranteed to those who own one.”


No one had or has the legal power to force them to devote one line of their valuable space to serve some “equal time” master. Obviously, some newspapers did devote some of their Op-Ed pages to diverse and diverging views. I am sure they also allowed some critical “letters to the editor” to reach their readers. But frankly, Freedom of the Press basically allowed them to do with their space what they wished to do, plain and simple. There was no hue and cry, others were always free not to buy their paper, or raise the capital to finance another. The marketplace up until mid-century, allowed quite often a multiplicity of newspapers to be available for public scrutiny. But one always had the right to be turned off, and go elsewhere. Unfortunately, in the one paper town, there are few viable alternatives.


As the visual electronic media roared into the public ken, in and around 1949, television started to overwhelm all of the other existing media. Newspaper readership declined. Large chains battered by the Depression, who survived and prospered during the “demand for news” era of the late New Deal and the onset and full fury of the 2nd World War, found the post war market place more demanding. Television, with Hopalong Cassidy, Milton Berle, along with others, started to attract incredible audiences. In the wake of that attraction, Big Bands, who were hurting because of large traveling expenses, went broke, the Hollywood studio system started to quickly erode, and newspaper chains and their ownership, began to consolidate. Even radio, which had been in excellent shape for decades, started to feel the pressure as all their stars like; Burns and Allen, Jack Benny, Bob Hope and others bailed out for the lucrative television medium. Newspapers obviously are still surviving, but as advertisers started to cut back, and the huge old department stores started closing, newspapers started to feel acutely the threat of the competition from the Internet. Today the average age of a newspaper reader is calculated at 60! Purchasing through the Internet is soaring and the information they provide is instantaneous.


In the not so distant past, the three dominant networks were monopolizing their venue of communication. Along with this powerful audience, their news departments started to grow more important and profitable. Opinion generated from these networks took on great cachet and influence. Unlike newspapers, these networks were granted expensive and renewable Federal licenses by the FCC, an arm of the United States government. They were also much more censured and their content was highly regulated. Unlike books, which could print or depict virtually anything, or movie industry that had disbanded the Hays Office for self-censorship, the television networks were afraid to risk renewal of their important and incredibly valuable licenses.


Eventually this domination over their “captive” audience attracted cries for editorial “fairness” and balance. In the era before the onset of cable television, as the networks vied for an edge in viewership for their lucrative news shows, they started to integrate editorial opinion into their news schedule. To many this was like “Big Brother” talking in 1984. It was for many, well-meaning folks on the right and the left, a form of “newspeak” created right out of George Orwell’s fertile mind.


Ironically, in those early days when television was exploding into the living rooms all over America, the Fairness Doctrine came into our lexicon and law, because of the anti-Communist fervor emerging in 1949. Eventually certain of its provisions were inculcated into the existing FCC regulations. The regulations never required “equal time” to be devoted to any one or many issues, but it required broadcasters to set aside some of their broadcast time to the discussion of subjects of public concern. It also encouraged the airing of opposition views. After a number of legal challenges, the case of Red Lion Broadcasting Co. v. FCC was decided in the Supreme Court. The Court upheld the law in the case of an “on-air attack.” The court had ruled against this type of public policy with regards to the press. Because the press was considered so wide-spread and universal, any abridgement of its right to control its own reportage was considered an infringement of Freedom of the Press.


But, because radio stations had access to a limited competitive venue, the Court said that radio could be regulated regarding “fairness.”  Interestingly the US Supreme Court dealt with the Fairness Doctrine over the issue of licensing.

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a… frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others…. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

U.S. Supreme Court, upholding the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 1969


Mr. Dooley, as written by Peter Finley Dunne, famously said, “No matter whether the country follows the flag or not, the Supreme Court follows the election returns.” Therefore as the country chose Ronald Reagan, and a GOP dominated Congress, the Courts started to follow the rhetoric of the right. But, ironically in 1984, Justice William J. Brennan, a renowned liberal, wrote for the majority opinion, noting that the Fairness Doctrine was “chilling speech.” FCC Chairman Mark S. Fowler, a Reagan supporter began to repeal parts of the Fairness Doctrine. In 1986, Appeals Court Judges Robert Bork and Antonin Scalia wrote that the Fairness Doctrine did apply in certain cases, but the FCC was not required to enforce it. Eventually it was abolished by the FCC with a 4-0 vote in 1987. Any efforts from Congress to bring back a modified Fairness Doctrine have been thwarted by a Reagan veto, and a threatened veto by George H.W. Bush. Even though the “personal attack” and the political editorial” rules stayed on the books until 2000, they were difficult to enforce. Eventually they were removed by a ruling by a US Court of Appeals decision in the District of Columbia Circuit. But times again do change, and there are now current efforts to bring back the Fairness Doctrine in the next Congress. Of course this action is violently opposed by conservatives. Will this effort to re-instate the Fairness Doctrine succeed if the Democrats control Congress and the White House? Who can tell?


In light of the vast amount of choices provided by cable television and the Internet, the argument regarding the Fairness Doctrine may have become antiquated. Obviously conservatives, who dominate talk radio, want no part of sharing their venue. Most moderates, progressives, and liberals would blanch when they are made aware that Laura Ingraham, The Wall Street Journal, and the Washington Times oppose the re-instatement of a Fairness Doctrine. Is it no surprise that Judges like Robert Bork and Antonin Scalia opposed that doctrine? Of course, the question is why? Is it that they are just “strict constructionists,” who see any infringement on speech as a violation of the Constitution? It is interesting that strident voices, of who some might call the “lunatic fringe” of the right, are supported by moderates on this issue. One could also ask very pointedly, why is it that these right-wingers on the radio are so popular. Of course, my sense is that the conservatives in our midst feel uncomfortable with the obvious changes in our society, and wish to publicly grouse about it. In their lifetimes they have experienced the change from the progressive and liberal oriented New Deal through the inclusive Great Society, a period of twenty-five years, to a more conservative era where their leaders and ideas have failed. What has changed for the right? Do they have a balanced budget? No! Have they rolled the clock back on foreign adventurism? No! Have they reversed the so-called intrusive gains of the civil rights movement? No! Have they cleaned up the movies, the magazines, the literature, the language? Obviously not! There is more to hear and see today then ever. Have they driven the “gays” underground? No! In fact, many even admit that their own family members are gay! Have they put women back in the three “Ks,” – (German- Kirche, kuche, and kinder) or in English, the church, the kitchen and the nursery? No! Have they increased religious attendance and worship? No! Have they made abortion illegal? No! But it is really amazing that a vast amount of Americans believe that the earth is flat, that faith-healing works, in creationism, in space creatures, and the literal interpretation of the Bible. There are large numbers who believe that we never landed on the moon. It would be healthy that all 6th graders in America be forced to see Frederic March and Spencer Tracy in “Inherit the Wind.”  In fact, United States Senators Vitter and Craig, staunch conservatives, who will soon be retired by their constituents, will join a long list of GOP sexual offenders who have suffered the same fate. How ironic is it that most conservatives favor and support censorship. How ironic is it that the Catholic Church sponsored a censorship list for decades. How ironic is it that the right wing has opposed the expansion of “freedom of expression” at every cultural turn. It was not long ago that our faux “hero” of the 9/11 tragedy, our famous former Mayor wanted to close down the Brooklyn Museum because he was offended by a work of art. I saw the so-called work of art, and I was unimpressed by its quality, but I wouldn’t support the closing or the de-funding of the museum. Wasn’t that censorship? In fact, if the Mayor hadn’t opened his hypocritical mouth, no one would have even paid attention to that forgettable piece. But the former Mayor has his own moral “cross to bear.”  Remember it was a famous newspaperman named Horace Greeley, who once said, “I never said all Democrats were saloon keepers. What I said was that all saloon keepers were Democrats.”  So the publisher’s sickle can cut both ways!


As to the failure of leadership, over the last 35 years we have seen the self-destruction of Richard Nixon, which led to big Democratic gains in Congress, and Jimmy Carter. Though I dislike the former President Carter intensely, his 1979 speech on energy was right on the money that is “petro” dollars. We then had the big guy from California, Ronald Reagan and his reign of tax cuts and deregulation for the rich, which led to the Savings & Loan Scandal, incredible deficits, and an average of 7.5 % unemployment for seven out of his eight years in office. Certainly Reagan never really fought against abortion rights or cultural diversity. We are finally left with twelve years of the two Bush twins. I can’t say much more about them. The older one was the poster child of the “Peter Principle,” and the younger one is arguably in the class of Warren Harding, and a few others, like Millard Fillmore and Franklin Pierce who share proudly the mantle of abject failure and scorn. By the way, the court houses have been jammed with Nixon, Reagan and Bush appointees. So one could easily understand the frustration of the conservatives, and therefore see easy justification regarding their thirst for right-wing, radio clap-trap. How can any station justify paying a provocateur like Bob Grant unless there was a ready and large audience drooling for his brand of fascism.       


Meanwhile, back to the subject at hand, the concept of giving equal time to rebut a specific editorial statement or a personal attack, which was broadcasted on one of the three networks, may have had some justifiable appeal in a previous era. Those networks had a vast viewing audience and therefore they had a quasi-monopoly on the dissemination of opinion. Today it may be just a case of a new statute being unenforceable. I, for sure, am opposed to a new bureaucracy of “thought police.” One could easily spend the whole day rebutting the editorial comments on FOX News that poses for reporting. I am sure no one really cares. I say live, and let live. If FOX News wishes to say what it wishes to say, so be it. If you are offended watch something else. If you think that they are brainwashing their audience, get a life. Their audience knows what it wants. Also, in a sense, the whole issue may fall into the category of “censorship.” In the same way, the courts have allowed great leeway in subject matter to be aired.. I am personally against most censorship for persons over 14 years of age. Anyway, it should be the role of the parent. If the parent is incapable of setting decent standards for their child, then we as a society must live with the consequences. The jail population reflects that end. We have more people in prison (3 million) than the whole world combined, exclusive of China I believe. Without the Chinese population of 1.3 billion, there are 5.3 billion people left. We currently are the home to about 315 million, counting the undocumented. Therefore we represent only 5.94% of the world’s population and we have more prisoners than the other 5 billion people! Seems like we haven’t changed much after decades of GOP-Dixiecrat rule!


In truth, America is a big country with a great deal of resiliency. We have weathered many storms, and our people are made of sterner stuff. They can easily choose what to listen to, and how to think. Therefore I find the struggle over the Fairness Doctrine a battle not worth fighting. Will it come back on the books again, who knows? But I for sure will not add my two cents to its re-birth.





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