The Return of the Fairness Doctrine?

Before his deplorable remarks about the Rutgers women's basketball team, Don Imus' legacy as a broadcaster seemed somewhat assured: Member of the Radio Hall of Fame; recipient of three Marconi Awards (given to the medium's outstanding air personality), and a highly influential career spanning four decades, at the local level (on WNBC and WFAN in New York City), and as a national host for CBS Radio and MSNBC.

But the final chapter in the I-man's career may include an event that no one could have envisioned a few weeks ago. And it has nothing to do with the "survival" of his career, or whether advertisers return to his program--assuming he still has a "show" after his suspension ends at CBS and MSNBC. In fact, this portion of his "legacy" would be felt for years, long after Imus retires to his New Mexico ranch.

In the end, will Don Imus be best-remembered as the man who, inadvertently, helped revive the Fairness Doctrine?

Don't laugh--it's not that much of a stretch. Democrats, back in control of Congress, have been talking quietly about restoring the Fairness Doctrine, first imposed more than 70 years ago by the Federal Communications Commission, and its predecessor, the Federal Radio Commission. The doctrine required that broadcasters who operate on the "public airwaves," present "controversial issues of public importance, and to present such issues in what was deemed an honest, equal and balanced manner." In other words, if a station provided airtime to cover one side of an issue (or political candidate), it was obligated to provide a similar forum for the opposition.

The Fairness Doctrine was finally repealed by the FCC in 1987, during the Reagan Administration. After a favorable ruling from a federal appellate court in 1986, the FCC determined that the doctrine served to inhibit, rather than enhance debate. The commission also suggested that, due to the many media voices in the marketplace at the time, the doctrine was perceived to be unconstitutional. And for good reason; efforts to extend similar provisions to the print media were rejected by the courts, despite the fact that newspapers and magazines transmit data over FCC-regulated communications systems, and their final product travels over publicly-owned roadways to reach consumers.

Sensing a threat to their media stranglehold, Democrats quickly tried to reimplement the Fairness Doctrine. In 1987, President Reagan vetoed a bill that would have reimposed the doctrine, and it took the threat of a veto by President George H.W. Bush to quash a similar measure in 1991. With the Republicans in charge of Congress for most of the 1990s, the Democrats put their plans for the Fairness Doctrine on the back burner, but they never abandoned the idea. When their party regained control of the House and Senate in January, a group of four Democrats (Senator Bernie Sanders of Vermont, Represenatives Louise Slaughter and Maurice Hinchey of New York, and Congressman Dennis Kucinich of Ohio) introduced a bill to restore the Fairness Doctrine.

Their motives are blatantly transparent--and political. The "new" Fairness Doctrine is aimed squarely at conservative talk radio, which emerged as a media force in the late 1980s, and became a powerful counterbalance to the liberal-dominated MSM in the decades that followed. By again requiring that broadcasters provide "fairness" and "balance" in their programming, Sanders and Slaugher et.al, believe they can discourage stations from airing personalities like Rush Limbaugh, Sean Hannity and Neal Boortz. Under a renewed Fairness Doctrine, a talk station carrying those three personalities might be required to provide up to 9 hours of airtime a day to hosts and groups with opposing views.

So, how does the Imus controversy play into the Fairness Doctrine? The old rule contained something called the "Personal Attack" clause, requiring broadcasters to notify groups and individuals subjected to attack during broadcasts; provide a transcript of the comments within one week, and offer time for rebuttal. Interestingly, the personal rule remained in effect until 2000, long after the FCC rejected other elements of the Fairness Doctrine. I'm just waiting for one of the supporters of the "new" fairness legislation to call a press conference, and announce that their bill could "prevent" other hosts from launching personal attacks in the future.

It's the type of "crisis and government cure" situation that Democrats have exploited successfully in the past. Never mind that there's a tremendous gulf between Don Imus' racist remarks and the legitimate, free political speech practiced by broadcast hosts representing all political viewpoints. For backers of the new Fairness Doctrine, the First Amendment is less important than an opportunity to silence political critics, under the guise of solving the latest social malady. And thanks to the I-man's little riff last week, anyone who opposes their measure can be branded as a supporter of hate speech, a racist, or worse.

At this point, reimplementation of the Fairness Doctrine remains a long shot. But those efforts received an unforseen (and unfortunate) boost last week, when Mr. Imus opened his mouth. For a man who's made a career on the edge of the edge of the First Amendment, it would be ironic if the end of his career brought renewed--and onerous--restrictions on free speech.