When Conservatives Forget the History of the Fairness Doctrine
Nate Hochman, a fellow at the Claremont Institute, is trying to convince conservatives that the Fairness Doctrine was fair. It is a bold thesis given longstanding conservative antipathy towards government regulation of media. But Hochman blames that antipathy on kneejerk libertarians, who invoke "shallow Reagan-era slogans about small government and individual liberty." Perhaps, but I can tell you with certainty that the author is falling prey to a shallow understanding of the history of broadcast regulation.
It would not be entirely fair to criticize a recent college graduate like Mr. Hochman for not knowing what he doesn't know; I myself knew little about the Fairness Doctrine until I wrote a book about it. But this isn't a college term paper and the bad policies stemming from this ignorance of the history of broadcasting threaten the future of free speech online.
Let's start with something the author gets right. It is true that conservatives were divided over the Fairness Doctrine in the 1980s, with Ronald Reagan and Rush Limbaugh opposed but National Review publisher Bill Rusher, American Conservative founder Pat Buchanan, and Phyllis Schlafly in favor. However, the conservative divide ran along the fissure between those with a substantial presence in broadcasting and those without.
An activist such as Schlafly—for whom broadcasting was a relatively small part of her operation—might value the driblets of free airtime she could claim under the Fairness Doctrine to fight the Equal Rights Amendment. But dedicated broadcasters like Limbaugh knew that imposing a rigorous Fairness Doctrine regime would demolish their core operating model. It is no accident that Limbaugh's show did not receive national syndication until a few months after the repeal of the Fairness Doctrine.
That wariness about the effects of the Fairness Doctrine on conservative broadcasting extended to President Reagan. He might be better known for his screen presence, but Reagan was an old radio hand. Indeed, he delayed formally announcing his presidential candidacy for 1980 so that he could keep his daily radio show Viewpoint on the air on 286 stations nationwide as long as possible.
Their skepticism paid off. Repealing the Fairness Doctrine in 1987 enabled the rise of conservative-dominated talk radio with vast political consequences. Without talk radio, it's hard to imagine the success of Newt Gingrich's "Contract with America" in 1994 or the impeachment of Bill Clinton. And the tens of millions of regular talk radio listeners created a coherent audience that could be targeted later by conservative media entrepreneurs like Rupert Murdoch and Roger Ailes. For good or for ill, the conservative movement would look dramatically different today if the Fairness Doctrine had not been repealed.
Which is why initial conservative support for reinstating the Fairness Doctrine—still proposed as late as 1992 by Newt Gingrich—ended as it became clear that talk radio had become a key pillar of conservative political success. Instead, it was progressives like Chuck Schumer, Nancy Pelosi, and John Kerry who favored reinstating the Fairness Doctrine as a way to muzzle conservative talk radio hosts.
Hochman will have some unlikely bedfellows if the push for a new Fairness Doctrine standard takes off. Indeed, his essay is a taste of what a paleo-conservative / progressive anti-Big Tech alliance could look like, an article in The American Conservative whose sole scholarly source is Victor Pickard, a social democratic advocate for the decommercialization of broadcasting.
Building cross-ideological bridges is good and Victor is a fine scholar, but it is what Hochman gets wrong in his essay about the history of the Fairness Doctrine that should raise red flags. He credulously accepts the standard, progressive account of that history and the court cases that validated it. For example, he mentions that the Supreme Court unanimously upheld the Fairness Doctrine in Red Lion Broadcasting Co. v. Federal Communications Commission (1969).
But Hochman is unaware that the Red Lion case was secretly subsidized and supported by the Democratic National Committee. It was one part of a wide-reaching censorship campaign, planned from the Oval Office and by allied liberal interest groups, to use the Fairness Doctrine to mute conservative radio and boost the Kennedy and Johnson administrations. As I detail in my book, it was one of the most successful episodes of government censorship in US history. It is thus odd to read a conservative today arguing for a policy that represented a near existential threat to a prior generation of conservatives.
To be fair, Hochman is only the latest to have the wool pulled over his eyes with Red Lion; Supreme Court Justice Byron White—quoted substantially by Hoffman in the article—was equally unaware of what was going on, writing in his decision that the FCC had assured him that "the fairness doctrine in the past has had no such overall [censoring] effect."
Consider another example of Hochman's credulity. The most indefensible sentence in the piece might be when he writes, "The Nixon administration repeatedly used the 'public interest' regulations promulgated by the Fairness Doctrine to push back against media bias." The worst part is not Hochman's basic misunderstanding that it is the Fairness Doctrine that is rooted in the FCC's public interest standard, not the other way around. No, the worst is the blithe admiration of the Nixon administration's abuse of those regulations for partisan advantage.
For example, when the CBS news network aired critical coverage of the Vietnam War, Nixon sent future Watergate felon Charles Colson to meet with network executives and threaten them with Fairness Doctrine scrutiny if they didn't back off. Colson reported back that the executives were "accommodating, cordial, and almost apologetic." And a few years later, when Washington Post reporters were breaking the Watergate scandal, Nixon's FCC chair proposed a cross-media ownership ban, ostensibly rooted in the public interest standard, that ultimately forced Washington Post owner Katherine Graham to divest herself of some very valuable television stations.
Even a glancing familiarity with that history gives the lie to Hochman's proposition that Nixon was merely pushing "back against media bias." No, Nixon was blatantly abusing executive power to punish political dissent and prevent scrutiny of his administration. I might not be a conservative, let alone "The American Conservative," but that doesn't sound like an appropriate conservative reaction to some of the baldest abuses of executive power in modern presidential history.
Hochman's essay is also a reminder of the danger of making policy while living in the eternal present. For many pundits, the past only exists insofar as it is useful today in pursuing a particular legislative or cultural agenda. Sweeping generalizations about a romanticized past are substituted for careful, historically grounded analysis. That is how the essay ends up quoting a lobbyist who vaguely cites a "common law tradition, going back hundreds of years" that proves "we've always relied on public policy to make decisions surrounding technologies that began to change the parameters of the social order." It's hard to argue against a word cloud, but I would propose that we should instead base future media regulatory policy on the insights gleaned from the actual history of broadcasting in America. Hochman might find, however, that this history offers a series of cautionary tales for those who are confident that this time techno-progressivism will lead to the hoped-for outcomes.
It is ironic, then, that Hochman cites another lobbyist suggesting that it is "libertarians [who] have forgotten or want to forget exactly how conservative principles have been applied on this issue [regulating the internet] in the past because that history is inconvenient." Rather, Hochman's essay is itself an example of someone coming to a topic with a set of preordained, desired policy outcomes—in this case, taking down Big Tech a notch or two—and then selectively raiding the historical record to create a usable past. It is bad history done in the service of bad policy.