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January 25, 2007

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"If it prevented anyone from speaking, I would regard it as completely and totally different. I am, after all, on record as supporting the right of Nazis to march through Skokie, and (also for the record) that's not because I am unaware of the demographics of Skokie, and in particular the number of Holocaust survivors who live there. I therefore find it odd to be placed on any spectrum whose extreme is speech codes."

I guess this is where my experience with the legal system makes me wary. People (the ACLU in particular and media defense groups and Supreme Court Justices as well) often talk about the potential 'chilling effect' of loosening libel laws. I tend to agree that too loose libel laws would encourage lots of people not to talk publically about certain things if they always had to worry about getting sued. And remember the problem is not just LOSING a suit, but rather being forced to defend a suit.

The real chilling occurs in the arena of avoiding the costs of defending a suit even if you'd win. Even honest people fear an IRS audit, because it is so much trouble. People pay lots of money to minimize the risk in an IRS audit. The problem with any 'fairness' approach is that it would open up a whole avenue of government attack and investigation based on speech. Defending against it would be expensive, and rather than worry about that, prudent people wouldn't get involved in certain types of political speech.

Remember, NYT v. Sullivan was largely concerned that too loose libel laws would allow public figures to use the threat of libel to cut off dissent.

While "fairness" ideas attempt to avoid that by merely requiring the access of counterargument, in practice it would have similar effects. Why? Because how do you enforce it. What happens if you don't give access soon enough? Surely letting Obama rebuttal time 6 years from now won't be sufficient. With what threat do you enforce immediate compliance such that you can get a rebuttal on air soon enough to make a difference? Obviously if you litigate each case, they will always come way too late. So you need a really ugly threat of consequences when you lose or everyone will ignore it. But with a really ugly threat, legitimate speakers will wisely avoid speaking because no matter how obviously innocent you are, the chance of losing in court always exists. (I had a boss that said no matter how much of a slam dunk you have, there is always at least a 10% chance of randomly losing becuase of an odd judge or a flukey jury).

The same problem arises with "how many rebuttals". You can't give many more than two without severely eating up your general time. But if you don't give it to all 'legitimate' comers, you are going to get hammered by the government. Why risk that?

In short, if you want more political engagement, you can't have government standing anywhere near free speech with a big hammer.

Von, you're of course free to do as you wish, but I'd suggest that banning works better when the banner is on the same "side" as the bannee, and it's certainly preferable that the banner not be the target of the offending comment. Avoiding conflicts of interest, when possible, enhances trust in the system.

Understood, of course, which is why I provided a warning. For clarity, the offense was not that Phil disagreed with me -- otherwise you're all banned! Rather, it was his misleading quote of my comment and then, when I noted the problem for him, his decision to respond with another misleading statement ("it was all one comment," which was hardly the point). I don't expect retractions & I even expect defenses, but this particular defense deserves at least a warning that its proponent is on dangerous ground.

If it prevented anyone from speaking, I would regard it as completely and totally different. I am, after all, on record as supporting the right of Nazis to march through Skokie, and (also for the record) that's not because I am unaware of the demographics of Skokie, and in particular the number of Holocaust survivors who live there. I therefore find it odd to be placed on any spectrum whose extreme is speech codes.

But doesn't it preclude speech (in addition to requiring speech)? Although the exact parameters of a new FD is unclear, let's assume that it at least covers radio. Rush Limbaugh says, on air, that a particular immigration is anti-American. The formal proponent of the tax increase is a democrat, but let's say that a number of others are also identified with the policy -- including President Bush. Does the Democrat get the right of response? Does Bush? How about the all-powerful Mayor of Albuquerque, who also favors the policy and is in a tight race with Juan Tacredo, Tom Tacredo's son and an opponent of the policy? What about the Libertarian party head?

Presumably, the answer is one of the following:

1. None of these folks get to respond because Rush didn't identify a particular person (although every single one is clearly a target of his words). In this case, the FD has essentially failed its intended purpose.

2. Some of these folks get to respond, in which case others are rightfully frustrated that they are not heard (would you accept only a response from Pres. Bush?). Or,

3. All of these people get to respond, which would be impractical and essentially make the private station a common carrier.

Defending free speech does not stop at defending the right of Nazi's to march on Skokie.

Where I do differ from some people who support it is simply in the kinds of provisions I think it should contain. Specifically, I think it should contain some minimum labor and environmental standards. The reason for this is to prevent certain market failures, not to enshrine protectionism; and therefore I (at least) do not regard this as an anti-globalization position, but as a difference in policy, a difference about which long and cumbersome rules the WTO and similar treaties should contain.

These are not market failures (environmental issues are sometimes market externalities, but that's something different). Moreover, most of these programs are being pushed by unions and are aimed at making trade deals either impossible or irrelevant as a practical matter, by imposing so many requirements that there ceases to be a comparative advantage to trade.

Incidentally, the proven way to increase wages & improve the environment in low income countries is to enact trade deals without such restrictions. Mexico has seen tremendous improvement under NAFTA -- it may have been the single best thing that has happened to Mexican workers since, well, ever.

As for the puppets: I'm not sure I see how this follows from any particular set of political views, so I suppose I'll just have to mull that one over.

I claim special expertise in this matter, given that I once hosted one of the primary puppet makers (a friend from way back, though we haven't kept in touch the last 5 years). About the only economic issue on which we agree is immigration policy.

von: The point is that we should not be looking to some sort of regulation or government action to control or punish speech with which we disagree -- whether the fairness doctrine, the quasi-loosening of the libel laws proposed by Dan the Man, or something else.

I agree that loosening libel laws is a bad idea. But I don't see how the FD is in anywhere approaching the same category, to say nothing of being as harmful (in some instances!) as waterboarding, a notion that I find as offensive as it is absurd (are you thinking here of instances in which the person providing the rebuttal is such a spit-talker that his mouth spray nearly drowns someone?). Dubious claims of chilling effects aside, the FD doesn't punish speech, but rather punishes the suppression of speech.

In any case, historical examples of the horrors of the FD are certainly welcome. If it was awful as you make it out to be, such examples should be plentiful.

The Left gets you well-meaning programs like the fairness doctrine ....

Programs similar to the Fairness Doctrine (I'm thinking Equal Time, in particular) date back to the inception of federal broadcast licensing, which began under the Coolidge administration.

Whoops, let me fix that first paragraph (above). I changed my example half-way through writing it, and now it's terribly unclear. It should read:

But doesn't it preclude speech (in addition to requiring speech)? Although the exact parameters of a new FD is unclear, let's assume that it at least covers radio. Rush Limbaugh says, on air, that a particular immigration plan is anti-American. The formal proponent of the immigration plan is a democrat, but let's say that a number of others are also identified with the policy -- including President Bush. Does the Democrat get the right of response? Does Bush? How about the all-powerful Mayor of Albuquerque, who also favors the policy and is in a tight race with Juan Tacredo, Tom Tacredo's son and an opponent of the policy? What about the Libertarian party head?

Von, wouldn't it be instructive to look at how the FD was enforced throughout the 53 or so years it was in effect, rather than relying on thought experiments?

Also, do you think broadcast decency standards are similarly objectionable, and also as damaging to the public good as some forms of torture?

"Also, do you think broadcast decency standards are similarly objectionable, and also as damaging to the public good as some forms of torture?"

Similarly objectionable in the sense that we probably shouldn't bother with it, yes.

As bad as torture, no--because it doesn't corrode the right to political discourse the way that meddling with free speech on or near political topics does.

Von, wouldn't it be instructive to look at how the FD was enforced throughout the 53 or so years it was in effect, rather than relying on thought experiments?

We know that it was used for partisan political gain by Nixon (and, according to the Heritage Foundation, Kennedy as well), and there were several reports by journalists that it caused journalists to avoid controversial subjects for fear that they would not be able to satisfy regulators' demands. As you might suppose, the best aggregators of these reports are groups that oppose the FD. Cato has a discussion here: http://www.cato.org/tech/tk/040420-tk-2.html.

the standard spelling of my name is "i" for men and "e" for women. given the variances in the shape of human genetalia between male and female, i trust you can remember the distinction. ;)

That Cato Institute article conflates the idea of a "chilling effect" with the desire to protect audiences' tender ears from ideas or opinions they don't want to hear. One of the articles to which it links, also from Cato, claims the explosion of talk radio post-1987 is proof of a chilling effect. I think these two ideas are closely related, in that the elimination of the Fairness Doctrine might not have lifted a chilling effect on the expression of certain views so much as it opened up a new market for radio targeted at listeners who are strongly intolerant of viewpoints with which they disagree.

As for alleged intimidation on the part of the Nixon and Kennedy adminstrations: Is there evidence that it had the intended effect? And couldn't you use similar logic to argue for the abolition of the FBI?

Oh, and I get the sense that the author is kind of clueless about the current state of the media landscape:

Finally, practically speaking, how would a revived Fairness Doctrine apply to today’s media marketplace with its countless partisan radio and TV programs? Presumably Al Franken and his colleagues would not take kindly to the proposition that Rush Limbaugh and Bill O'Reilly are entitled to equal response time on their liberal Air America network in the name of "fairness."

Hasn't the author seen Franken's infamous confrontation with O'Reilly on Book TV? Say what you will about Al Franken, but I suspect he would be giddy with glee if O'Reilly agreed to come on his show to offer rebuttals on a regular basis (and "equal response time" seems like a mischaracterization of the FD). Bill is the one who threatens people with violence and cuts off their mics, after all.

Sigh. Now we've got liberals bashing leftists. That's not unusual and it goes both ways, but is this entity called "The Left" in favor of government control of speech? Because the far lefties I read are utterly opposed to this. Perhaps y'all are thinking of Bolsheviks.

We know that it was used for partisan political gain by Nixon

What we know is that some folks in Nixon's cabinet threatened broadcast license holders with the loss of their license.

If we are going to eliminate every instrument of government because it was abused by Richard Nixon, we will find ourselves back in the political stone age in a hurry. While we're getting rid of the FD, let's also get rid of the FBI, the CIA, the NSA, and DOJ.

Clinton used the IRS to harrass his opponents. Let's get rid of them, too.

If we want to include all of the institutions the current President has abused, we might as well call it a day.

It's probably more useful to discuss the merits of public policy in the context of its normal and intended use.

Thanks -

russell: It's probably more useful to discuss the merits of public policy in the context of its normal and intended use.

I don't think we should ignore unintended consequences. But otherwise, I think we are on the same page.

It's worth noting that this article, also at Cato, and referenced in the article von offered, provides a lot more detail on these Nixon's and Kennedy's use of the Fairness Doctrine against political opponents. According to the article, Kennedy's "intimidation" of broadcasters consisted of Democratic campaigns to demand opportunities to rebut right-wing commentaries. The supposed evidence of a chilling effect is that some stations stopped carrying a particular right-wing preacher's shows because the target of his attacks demanded free time to answer those attacks, and was substantially aided in his efforts by the DNC. That's it, as far as I can tell.

Nixon's campaign looks quite a bit uglier, and apparently involved direct attempts to intimidate broadcasters, but it looks like Nixon also employed other FCC powers, most notably meddling in the license renewal process, which is a hell of a lot more threatening than simply demanding free rebuttal time. The effects of this are similarly murky, though. According to the article CBS may have made a change to the way it covered the Nixon White House as a result. Or maybe not. In the one notable instance of an actual Fairness Doctrine challenge by the RNC (basically they demanded that they be allowed to rebut Democratic rebuttals to Nixon speeches) the courts emphatically overturned the FCC rulings. Which is the way things are supposed to work when the Executive abuses regulatory power for political purposes, right?

The arguments against the fairness doctrine are making it seem more and more appealing to me, largely because I find the language of "gosh, look, here's a problem, but of course law and policy can't help it, so we should all sit quietly and let the plutocrats have their way, again" familiar and repulsive. It was the libertarian arguments against national health care that first led me away from libertarianism, because they were so compact and logical and seamless...except that they foundered on reality. Whenever I now see a similarly smooth and compact argument that amounts to an airtight argument for the inability of the state to do anything constructive in a sphere of action that affects the health of the society and is currently in the hands of a lil' group of oligarchs, I get suspicious.

It helps, of course, that Russell's asking a lot of good questions and providing a lot of good info. It's not just Von and Slarti and Sebastian that are persuading me that state action in the interest of honest discourse is both possible and desirable. Thanks, Russell.

Bruce is right. Thanks Russell.

Indeed. It would be nice if Von et al. actually responded to Russell's careful explanation of what the FD meant in practice, and the explained why they regard the Fairness Doctrine as it actually operated was objectionable, rather than referring to first principles and some (Anti-?)Platonic Ideal Of Fairness Doctrines.

Did any of you read the Cato links?

" but it looks like Nixon also employed other FCC powers, most notably meddling in the license renewal process, which is a hell of a lot more threatening than simply demanding free rebuttal time."

I don't understand how you (and others on this thread) can so neatly divide rulemaking from enforcement. When you demand free rebuttal time what happens if the station doesn't believe you should get it? If the rule is based on the government license, threatening the license is an obvious step.

You are treading very close to being banned, Phil. (My first.)

You have got to be kidding me. Under precisely which posting rule?

Your elipses conceal the fact that the first part of the comment was directed to Dan The Man and responded to his concern, while the second part of the comment was directed to Francis and responded to his (her? - I've known Francis'es of both genders) concern. It's misleading, and it should stop.

Ah, I see. So all the utterances you make -- even within the context of a single comment post -- are completely disconnected from each other and there is no underlying stream of thought which unifies the things you say? Good to know for future reference. Also good to know that you appear to believe that, like you, nobody else reads the other comments on the page or refers back to things higher up.

For clarity, the offense was not that Phil disagreed with me -- otherwise you're all banned! Rather, it was his misleading quote of my comment and then, when I noted the problem for him, his decision to respond with another misleading statement ("it was all one comment," which was hardly the point).

Precisely who was "mislead" by my comments, and in precisely which direction were they mislead? I'm going to need some specifics, here. Everyone who felt my comments were in some way "misleading," please speak up, because I'd hate to see von out there on his own on this one.

Incidentally, the proven way to increase wages & improve the environment in low income countries is to enact trade deals without such restrictions.

Surely you have a cite for this.

And I have to say, the kind of sophistry that can lead one to say that a fairness doctrine -- or, more to the point of the original post, any sort of organized mechanism for allowing the targets of slanderous, lying attacks to respond to them in a meaningful way -- is worse for the country than legalized torture . . . ? (Oh, sorry, "certain uses of waterboarding." Wouldn't want to be misleading.) I don't even know how to respond to that without profanity. It's absolutely breathtaking.

I guess the point is that it's OK to become complete moral monsters as long as we protect the rights of outright fabricators to spread crap via the publicly-owned airwaves. I know that's the America I envision? Is that about right?

Yes, Sebastian, I followed the link, and found it (alas) exactly what I've come to expect from Cato - a basically useless collection of heavily shaded interpretation and a collection of raw data I know better than to trust without outside confirmation. Cato reports seldom outright lie, but when it comes to understanding an issue they're about as useful as the typical management consultant firm's reports.

Nor, of course, is there any declaration of potential conflicts of interest on the part of the folks who put it together, and Cato has had problems with that in recent years, to put it mildly.

Did any of you read the Cato links?

Yes, I read both von's and Gromit's.

The only concrete case cited in von's was Nixon threatening broadcasters with a loss of license. As noted above, Nixon's was a uniquely criminal administration, and I'm not sure we should decide that public policies do or do not have value based on whether Nixon abused them. We would, quite honestly, not have much left in the way of government. That may be appealing to some, but not to me, personally.

The far more damning critique of the Fairness Doctrine as it was actually applied was the discussion of the systematic demands for free air time on the part of Democratic partisans in the '64 election cycle. They were able to make it expensive enough for conservative broadcasters to honor requests for rebuttal time that those broadcasters simply stopped airing conservative editorials.

That particular avenue of abuse could be addressed by giving broadcasters some financial relief in return for providing rebuttal time. Allow them to charge market rate, allow them to write off the lost revenue, etc.

In other words, if there is a flaw in the policy, you can correct the flaw without throwing away the policy.

What none of the examples in any of the Cato cites show is that the FD, in it's normal and intended application, prevented anyone from saying anything at any time.

And no, I do not ignore the very real and harmful distortions of that normal and intended use that actually have occurred. I do, however, balance those against the very real and harmful distortions that occur, each and every day, in the absence of something like the FD.

The Winter 03-04 issue of Political Science Quarterly contained a study by the Program on International Policy Attitudes. Yes, PIPA is no doubt a bunch of dirty hippy communists, but PSQ is a non-partisan, refereed academic journal, so the numbers are probably pretty sound.

The study demonstrated that viewers of Fox News during that time were significantly more likely than viewers of any other news source to believe the following three things:

1. Saddam Hussein was working closely with Al Qaeda
2. The US had found WMD in Iraq
3. The majority of people in the world favored the US invasion of Iraq

These three things were and are false. They are, frankly, lies that were promulgated, deliberately, by Fox to bolster public support for the war. The widespread belief that those things were true contributed, materially, to our involvement in Iraq. In the absence of something like the FD, they went unchallenged on Fox stations.

Gibson can stand up on Fox and tell blatant lies about Obama. Absent the FD, those statements go unchallenged on Fox stations.

They can be challenged elsewhere, but Fox viewers are not highly likely to be watching elsewhere.

Broadcast media is unique because of the number of people that watch and listen to it. Internet and print don't come close.

Broadcast media is also a finite resource. Even in this day and age. We therefore make broadcasting a privileged activity, that you can only engage in if you hold a license. I include cable under this heading because cable providers normally operate as a government-granted monopoly in any given area.

The FD required exactly two things in exchange for the privilege of holding one of those licenses:

1. You had to present discussion of issues of public importance
2. You had to allow all points of view to be presented

The second requirement was not pro-active. That is, you only had to do it if someone complained.

In the vast, and I do mean vast, majority of cases, it was not an extraordinary burden. In the vast, and I do mean vast, majority of cases, it facilitated, rather than hindered, the open exchange of ideas.

IMO, people's opinion about the FD depends on whether they think government is a responsible actor or not. Either government can be trusted to act in the public interest, or government is at all times an oppressive force which must be restrained with the strongest possible chains from interfering with the daily lives of normal people.

I consider government to be a responsible actor, which can be trusted to act in the public interest. If I lived someplace other than the US, I might feel differently. But, I don't, so I don't.

Given all of that, the idea that there should be a public policy requiring broadcast license holders to let people rebut points of view they disagree with on matters of public interest just does not bug me. As far as I can tell, putting ideology aside, the actual historical facts surrounding the FD are on my side.

I think, at this point, the poor dead carcass of the FD horse has received enough beatings from me.

Thanks -

Sebastian Holsclaw: I don't understand how you (and others on this thread) can so neatly divide rulemaking from enforcement. When you demand free rebuttal time what happens if the station doesn't believe you should get it? If the rule is based on the government license, threatening the license is an obvious step.

That would be a fair point, if that was what I was doing. The article is pretty vague, but it leads me to the impression that these license renewal challenges weren't necessarily tied to alleged violations of the FD. The most detailed anecdote of the Nixon admin using the FD itself as a cudgel ends in the courts harshly rebuking the Nixon administration for its abuse of power. This suggests to me that the FD might be no more prone to abuse than any other regulatory power.

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