Veto of `fairness doctrine' settles issue once - but not for all
FREEDOM of the press belongs to those who own one. So goes the old saying. But what about those who own what one public-interest attorney calls ``a bowling alley into the unconscious'' - a radio or TV station? Do broadcasters have the right to air only those matters of public importance they deem worthy of their air time? Can they sell time to advocates of one side of a public issue, like nuclear energy, and refuse access to another?
Do they, in other words, have the same constitutional right as newspaper and magazine publishers: The right to use their medium to tell the news and comment on it as they see fit?
President Reagan answered these questions emphatically on June 20, by vetoing legislation which would have written into law the ``fairness doctrine,'' a 1949 regulation that requires broadcasters to air controversial matters of public importance and to give time to responsible voices of dissent.
Issue will not die with veto
Broadcast journalists consider the veto a ratification of the fairness they say they have always exercised. ``We have been fair,'' says ABC's David Brinkley. ``We have to be fair. Audiences would not let us get away with not being fair.''
The issue, one of the great media questions of the age, will not die with Reagan's veto, however.
Supporters of the bill have promised to send it back to the President again in the slipstream of some ``must pass'' legislation. The Federal Communications Commission, charged with enforcing the doctrine, has applied it lightly in these deregulatory times and - on the strength of a federal judge's opinion that it has a right to do so - has been expected to discard the doctrine altogether. Congressional suporters of the fairness doctrine rushed to codify it before it died in the halls of the FCC.
Even if Reagan is forced to sign it into law - as part of a budget package, for instance - a constitutional challenge of the government's power to interfere with the First Amendment rights of broadcasters appears certain. Broadcasters and their supporters see this as the time to assert rights they feel belong to them as much as to any publisher.
``In the final analysis,'' contends Joel Chaseman, president of Post-Newsweek stations, ``we feel broadcasters should be untrammeled in their ability to report and, indeed, analyze and comment.''
Mr. Chaseman's argument is a First Amendment one, pure and simple. It is the plea of a publisher for the right of free speech. But it is also a plea made in a complicated world of technology and public policy and the interface between the two that drives some free-speech proponents to wonder just how much intrusion the fairness doctrine represents.
Private medium or public bulletin board?
Former CBS news chief Fred W. Friendly, now Edward R. Murrow professor emeritus at the Columbia School of Journalism, told a congressional subcommittee ``the fairness doctrine is no longer the chilling threat that broadcasters screamed about.'' He added that the doctrine is ``one that every responsible journalist should strive for.''
The fairness doctrine brings together such strange bedfellows as Phyllis Schlafly and Ralph Nader; and it does so, according to some experts, because the basic philosophical question of what broadcasting, especially television, is to the society has not been answered. Is it a privately owned medium of entertainment and information, or is it a kind of public bulletin-board-cum-town-meeting leased out for fair maintenance to individual broadcasters?
Most countries agree with the latter definition. It is hard to think of a nation, including Western democracies, in which government does not heavily regulate, if not downright control, television.
From this global perspective, proponents contend, the fairness doctrine looks more like a thread than a shackle on the broadcasting industry.
That view carries little water with such broadcast journalists as Brinkley, who points out: ``privately owned broadcasting is a rare exception, but on the other hand, so is a privately owned telephone system. Private enterprise has been the style in this country from the beginning.''
Private enterprise may indeed be the agent of provocation in this rebellion. That certainly is the argument of public-interest activists, who maintain that broadcasters are more concerned with the profits they can reap from unrestricted advocacy advertising than they are with a ``chilling effect'' on journalistic enterprise.
``We don't feel we ourselves are inhibited by the fairness doctrine'' in making news judgments, says Mr. Chaseman of Post-Newsweek. ``We are not worried about the fairness doctrine inhibiting our people.'' Pressed to provide an example of what does worry broadcasters, he mentions a series of commercials his stations ran for Texaco during the 1970s oil embargo. He says that Post-Newsweek was later forced by ``a couple of bureaucrats in a room somewhere'' to provide equal time and also to provide production facilities, for an opposing viewpoint.
It is just such cases that demonstrate the doctrine's importance, argue public-interest advocates like the Rev. Everrett Parker, former head of the United Church of Christ's Office of Communications and founder of the public interest communications movement: ``Over the years, the fairness doctrine has made it possible for little guys to seek time and usually to get it.''
Groups that cannot afford to ante up $1.5 million, as proponents of a nuclear power facility in New Hampshire did recently, can petition under the fairness doctrine to get their views aired. Without the doctrine, Rev. Parker argues, you can kiss all that access goodbye. Broadcasters maintain that the fairness doctrine has the opposite effect, causing stations to smother dissent by shying away from controversial subject matter, for fear of having to give up free air time to dissenting groups.
In the next few months, the country will probably find out who is right.
Whatever happens to the legislation currently lurking in Congress, the Supreme Court has given strong hints that it is ready to reconsider the constitutionality of the doctrine, as well as its applicability in an age when proliferation of news-media outlets weakens the scarcity argument that underpins the doctrine. The court gave a passing nod to the fact that today there are far more radio and television stations than newspapers in this country - an exact reversal of the situation when the fairness doctrine was written.
Should the court go in that direction, freedom of the press will become freedom of the transmitter; and both proponents and opponents of the fairness doctrine will be counting to see just how many voices join the chorus of public discourse.