The Real Issues 3: The Public Square

What sort of Supreme Court gives “We the People” power more effectively? Is it a court that, on looking at laws made at our insistence under the umbrella of a founding law may find them wrongheaded and set them right? Or is it a court that, though they may disagree with the philosophy guiding those laws, permits poorly conceived ideas to run their course as long as they do not violate the letter of that founding law?

These are questions I never heard in my education or in public before the demise of the so-called “Fairness Doctrine”.

Borked

In 1987 an unprecedented fight over the legal philosophy of the Judiciary of the United States led to the rejection by the Senate of the Reagan administration nomination of Robert Bork. Judge Bork was a “constitutional originalist”, a jurist whose interpretations of the law, and particularly the Constitution turned on his knowledge of the legal intent of the people who wrote it. This philosophy can be seen fundamentally expressed by Alexander Hamilton in the Federalist Papers, #78. A key philosophical foundation, taken from this paper is that there is no-

superiority (supposed) of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

In liberal philosophy the power of the Judiciary to effectively amend the Constitution to do what leaders deem “right” without resorting to the arduous task of ascertaining and engaging the “will of the people” has become the last resort of those who could not obtain the people’s legislative blessing, so a tremendous marshalling of liberal organizations in opposition to Bork’s nomination was organized.

In public discussion and news reports Bork’s judicial philosophy was characterized as being a path back to back-alley abortions, Jim Crow laws, and the dissolution of the social progress of the 20th century. There was virtually no discussion of the foundations in political philosophy on which originalism rests. At the time of these attacks, not merely on his philosophies but even his character, Judge Bork had little concerted public defense to raise the legitimate issues for which he spoke. In electronic media constrained by the chilling effects of the “Fairness Doctrine” his critics were heard by all, his defenders were accorded virtual silence.

Thawing the Soapbox

At the same time as these events were occurring a transformation was overtaking the public airways. A series of court cases, focusing on both the areas of technical issues relating to greater carrying capacity within given radio spectrum ranges and the advent of new tele-texting technologies and on the growing concern within the Supreme Court that the Fairness Doctrine was chilling political speech had led, during the ‘70s and early ‘80s, to a whittling away of the underlying assurance that the limitations of the doctrine were, in fact, fair. Cases of particular note are FCC v. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, 468 U.S. 364 (1984), In which current Supreme Court Justice Samuel Alito argued for the plaintiffs, and Telecommunications Research & Action Ctr. v. F.C.C., 801 F.2d 501, 517-18 (D.C. Cir. 1986) In which the D.C. Circuit court held that the Fairness Doctrine was not mandated by statute. This trajectory culminated in August of 1987 with a 4-0 vote of the FCC board rescinding the doctrine.

The Doctrine itself, furthermore, had something of a checkered past. In a paper entitled “The Fairness Doctrine: A solution in search of a problem” Adrian Cronauer addresses uses of the powers of the Fairness Doctrine to actively squelch public comment-

“Bill Ruder, an Assistant Secretary of Commerce under President Kennedy, told how Kennedy's administration used the Fairness Doctrine to challenge and harass right-wing broadcasters, in the hope the challenges would be so costly that these broadcasters would find it too expensive to continue their broadcasts” (see footnote 14 of that paper)
Cronauer also notes similar behavior by Spiro Agnew as well as threats as early as 1933 (before the advent of the formal “Fairness Doctrine” in 1947) by a member of the Federal Radio Commission against radio stations criticizing Roosevelt administration policies.

Much has been made in public debate of the Supreme Court having upheld the Fairness doctrine. (Red Lion Brdcst. Co. v. FCC, 395 U.S. 367, 389-90 [1969]) Interestingly, the rationale behind that decision seems to have turned on the scarcity of the government –owned resource- the radio spectrum- employed in the communication of ideas, whereas later decisions of the court dealing with technological expansions encroaching on the use of the same limited resource exempted other technologies from the same restrictions. This seeming inconsistency prompted the D.C. Circuit court to chide the senior court, as noted in footnote 94 of Cronauer’s paper-

The D.C. Circuit also invited the Supreme Court to revisit Red Lion, observing how such analysis "inevitably leads to strained reasoning" and concluding "the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference.”

Numerous attempts have been made to revive the doctrine, starting with the Senate’s refusal for three years to approve Reagan and Bush administration nominees to the F.C.C. (Cronauer), but in light of the Doctrine’s increasingly questionable legal footing these efforts have failed.

Another item of interest is how the doctrine began to unravel. In the FCC v. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, 468 U.S. 364 (1984) case noted above the original plaintiff was Pacifica Foundation, the nationwide, largely liberal leaning, educational radio network. Fairness Doctrine regulations prevented educational stations operating within frequencies set aside for educational purposes from expressing editorial opinions. One may note with some humor that the 1984 opinion struck down that provision of the doctrine.

The Present Debate

It cannot be argued that there is less access to opinions or news as a result of the demise of the Fairness Doctrine. Whereas in 1980 there were 75 radio stations in America dedicated to political controversy or news and talk, by 2004 there were more than 1400. This, according to ”Why is Talk Radio Conservative?” By William G. Mayer (findarticles.com). That number, according to Mayer, does not include not-for-profit radio stations such as the previously mentioned Pacifica stations or National Public Radio where conservatives, at least, believe liberal views are well represented. It is, in fact, the end of the Fairness Doctrine that permitted these stations to have overt political content at all!

It appears, instead, that liberals are intent on making an issue of the differential in content time on commercial radio stations, where liberal views are more often presented as counterpoints to be obliterated than as serious beliefs. This is an indication to many liberals that there is a pervasive conservative bias in the management of the radio industry. Mayer addresses this notion with two sets of survey results. The first of these, referenced on the first paragraph of page seven of his article, addresses the matter of sheer numbers of self-identified conservatives vs. self-identified liberals in a compilation of more than 130 surveys by ten different polling organizations recorded on the Public Opinion Location Library, or POLL, an on-line database maintained by the Roper Center at the University of Connecticut. In that information Mayer found that self-described conservatives outnumbered self-described liberals about 1.8 to 1.

The second key piece of information, referenced on the fourth paragraph of the same page, speaks to a far more important reason for the difference in audience. Mayer describes it thus-

Of all the reasons that allow conservative shows to dominate the talk radio market, probably the most important is that conservatives think they have a greater need for these shows--that talk radio provides them with information and viewpoints that they simply cannot get from the "mainstream media." American liberals are, on the whole, much less aggrieved about the way the news gets reported on the three major television networks and in most major newspapers.

Mayer follows this with some pages of statistics showing, essentially, that whatever bias or lack thereof the nation’s media believe they may hold conservatives trust them far less than liberals do. Conservatives very frankly fear misinformation, disinformation, and a simple lack of information much more than their political opposition. They will go farther out of their way to get information than their liberal counterparts will. In the face of this siege mentality there is more conservative talk radio because more conservatives feel they need it.

With these things in mind an analysis of the current ferment among liberal media-oriented groups such as the George Soros funded Move-on.org and Media Matters would seem to indicate that the effort is primarily intended to generate an atmosphere of media distrust in the liberal audience consonant with that which is native to the conservative population.

If the strategy is to eventually force a return to the courts, as would inevitably happen if liberals in power managed to restore a Fairness Doctrine, it would be incumbent on liberals to show the end of the policy had, in fact, materially harmed access to information for the liberal population. With the current construction of the court, particularly with the presence of Samuel Alito, (though there might be calls to have him recused) it seems very unlikely this challenge would stand. The failure of the appeal to the courts, then, would be used as a reason to urge a “return” to liberal activist philosophies in replacements for retiring members of the court and for election of the Democrats who would appoint and approve them.

Resulting, more liberal, courts could be counted upon to approve a reinstatement of “Fairness”.

Calumny in the Open Air

With the retirement of Thurgood Marshall in 1991 the first Bush administration put itself to the first real test of the new atmosphere resulting from the end of the Fairness Doctrine. Bush nominated Clarence Thomas, a young appellate judge with only a slight paper trail of past decisions but a record of support for a Bork-like originalist judicial philosophy. The liberal establishment rounded up virtually the same coalition of ardent voices to thwart the nomination as had been arrayed against Bork. This time, however, they faced, in addition to the narrowly drawn sound-byte media of four years prior, a concerted effort by conservative talk radio to give context to the otherwise arcane vituperations over political philosophies. Many people heard for the first time the protective agency inherent in Constitutional constructivism.

As the vote of the full Senate loomed it was clear liberals had lost the fight against Thomas on philosophical grounds. An anonymous leak to NPR political correspondent Nina Totenberg alerted the media to a charge by a former assistant to Judge Thomas named Anita Hill that he had sexually harassed her. What followed was pure political food fight played out in the lurid light of day.

Remarkable primarily for their triviality and the “she said/he said” equivocation they forced into the debate over one of the nation’s highest offices, the actual charges were clearly, at least to conservative sensibilities, intended to play against conservative’s perceived prejudices against black men. They simultaneously were intended to play against a presumption that a woman would not bring such charges frivolously. In the resulting extention of the confirmation hearings Judge Thomas characterized the charges in this way-

"This is a circus. It’s a national disgrace, It is a high-tech lynching for uppity blacks who in any way deign to think for themselves and it is a message that unless you kowtow to an old order you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree."

On the airways the debate concentrated on how any firm ground for due consideration of fairness or verifiability had been cast away over the importance of “the seriousness of the charges”. If you have access to Rush Limbaugh’s pay access site you can access this link.

In the end the “Hail Mary” of the left failed and Thomas was confirmed by a 52- 48 vote of the full Senate. In the aftermath of the events of his confirmation hearings this is often cited as the closest approval of a justice in more than a century, but, given the forces arrayed against Thomas’s confirmation it can also be seen for what it was- a shift of five (corr.- ten) “no” votes to “yes” in the four years since the previous nomination of an originalist jurist, in spite of the most vicious media campaign ever organized against a Supreme Court nominee.

No less effort has gone into the opposition to George W. Bush’s most recent originalist Supreme Court nominees, but the left has not been able to overcome the philosophical clarity forced onto the debate by conservative media. The nominations, though hotly opposed by liberals, have advanced fairly quietly. Open debate in a brightly lit public square made this possible.

Conclusions

The Fairness Doctrine, always a highly questionable and easily abused governmental policy in its best days, died a natural death in the 1980s. Attempts to revive it have failed largely because of the combination of questionable legal footings for government restrictions on the content of electronic media and the openness of the new public forums made possible by its demise. In the wake of the change the dramatic difference in public debate has had a material effect on the attitudes of much of the politically interested population. The slow sea change in the Supreme Court is just one indication of this at work.

It is possible for the tide to change and for liberals to prevail, and reassert both a “Fairness Doctrine” and the governmental changes such a chilling policy would permit, particularly if a more and more rancorous political debate frightens people into indifference, but it at least seems possible that the changes wrought in the electorate who now so strongly support our electronic public forum are permanent. It will probably be a very difficult fight for the left to win.

Posted by Lee Emmerich Jamison at October 10, 2007 12:13 PM
Comments
Comment #235765

Wow, it’s a good thing that this Fairness Doctrine was squelched, so that honest broadcasters like Rush Limbaugh can fairly present the news without any bias.

You didn’t even know I was kidding, did you?

Posted by: Max at October 10, 2007 1:55 PM
Comment #235771

Max,
Everybody, including Rush, says Rush is biased. Honesty as to one’s intentions is not an impediment to vigorous and clear framing of issues in a public discussion. Attempting to hide, or worse, being unaware of, one’s biases makes such a clear framing impossible.

Posted by: Lee Jamison at October 10, 2007 2:46 PM
Comment #235782

Max:

Not only did I know you were kidding, I also know you could not be more wrong if you tried. Rush Limbaugh has always put his conservative bias front and center. He never claimed to be anything other than biased for conservatism. As usual, you do not know this because you do not listen to his show. You would much rather take Media Matters and moveon.org’s word for what is said there because that fits your little view of the world.

But hey, why let facts get in the way of YOUR liberal bias.

Posted by: Beirut Vet at October 10, 2007 3:55 PM
Comment #235789

Everybody, including Rush, says Rush is biased. Honesty as to one’s intentions is not an impediment to vigorous and clear framing of issues in a public discussion.

Sorry, but stating your intention to be biased, that is, to not even try to be objective, does not serve the clear framing of issues. It’s for entertainment purposes only. No offense, but these mock news outlets are doing this country a lot more harm than good by not even bothering to be factual, objective, or stating their opponent’s case.

Posted by: Max at October 10, 2007 4:44 PM
Comment #235793

Admitting to bias is accepting the limitations of humanity. It also frees one to accept the possibility (though not necessarily the probability) that new, or more convincing, information could change one’s mind. That is how I have been able to revise my opinion of Global Warming.

The supposedly non-mock news outlets that pretend NOT to be biased do far worse by, for example, placing the defense of the positions they abhor in the hands of the most ridiculous or radical adherants to those positions. I’m sure it was a lot easier for Southern black men in the ’60s to detect the bias of Southern white men than it was for the white men, as they said “I’m not prejudiced, but…” to detect their own. The fact one can’t see one’s own biases is not a good indication they don’t exist.

Posted by: Lee Jamison at October 10, 2007 5:07 PM
Comment #235794

Rush, Stewart, uberbore and others are opinionated talkshows Max, not news sources.
Forcing them to “state their opponents case” will do nothing but give the audience a bathroom break.
Heck, Countdown is nothing but the TV version of the National Enquirer, but I still don’t think it would be fair to force him to air the truth. Its his show, let him run it as he wants and the viewers will decide.

Posted by: kctim at October 10, 2007 5:19 PM
Comment #235815

But I like The Daily Show, The Colbert Report, and, long ago when it was funny, SML’s Weekend Update. They escape my censure because they are funny first and political second.

Seriously, though, the proliferation of political pundits is a horrendous thing. I rarely watch TV, but yesterday I turned it on and sat, in disbelief, at all the commentary on a piece of jewelry Obama decided not to wear. Wtf?

The Right-leaning crap is well known, but I can’t stand to watch Olberman, either. The blurring of the distinction between reportage and commentary serves no good purpose.

None of this is meant to suggest I support efforts to re-impose the Fairness Doctrine. I’d think we would all be leery of government moderation of political content, but shockingly many are not. Anyway, this topic was run to death in the middle column, so this is most likely my last word on the topic for awhile.

Posted by: Gerrold at October 10, 2007 9:08 PM
Comment #235817

I like Colbert too, but, again, that’s someone that admits they are about entertainment, not news. Admitting to a bias and trying to be cognizant of how it’s affecting your judgment is one thing, just admitting you are never going to deviate from your bias is just playing dirty.

Anyway, I feel similarly about originalism. Like introducing bias into news, it seems like a cop out from performing one’s judicial duties. Like saying, well, we cannot decide on whether or not women should vote, because the original founders said nothing on the subject. It lets judges make decisions (or not make them) while having the convenient excuse of having that have nothing to do with their judgment.

Also, I just don’t think we can write off our 200 year old history. Our ideals of freedom, equality, and liberty are evolving. Just because the founders didn’t forsee giving blacks the vote doesn’t mean we shouldn’t have. Originalism is just an excuse to make decisions these judges are too embarrassed to stand behind.

Posted by: Max at October 10, 2007 9:31 PM
Comment #235823

Oh and Rush Limbaugh was actually recently caught editing transcripts of his show to prove he said things other than what he did. So, yeah, he’s beyond trash and not a journalist. The problem with people who say they will purposefully provide a biased point of view rather than try for an honest one is that they lie.

Posted by: Max at October 10, 2007 10:10 PM
Comment #235858

Max,

The strength of originalism is in the fact that the judiciary is, and was, according to the writers of the Federalist Papers, intended to be the weakest branch of the government. Hamilton literally says as much in Federalist #78

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.

To allow the courts the power to alter the Constituion by judicial fiat is to hand the powers of the whole government over to the courts. It simply sidesteps all of the arduously crafted protections the Constitution contains and hands the immense power of government over to nine flawed, fallible human beings.

The fact that liberals would wage fights over the content of the courts to which they would give so much power is proof positive of the folly of giving so much power to them. They want the courts to be omnipotent, but only so long as they are liberal! This was the very thing the founders feared. They were steeped in knowledge of HUMAN NATURE. They knew very well how stupid it would be to give unregulated power to any group of people.

If you don’t like the way the Constitution works convince the people to change it. If you can’t do that live with the way it is, however wrong you may think that is. To do otherwise is to give to the government , in the guise of greater judicial convenience, the power to consign us, eventually, to slavery.

Posted by: Lee Jamison at October 11, 2007 9:13 AM
Comment #235859

Also, Max, you confuse objectivity, the capacity to see all things with equanimity, with honesty, the sincere attempt to convey what you believe to be true. All human honesty is biased due to the limitations of our ability to know. There is no such thing as human objectivity.

Posted by: Lee Jamison at October 11, 2007 9:19 AM
Comment #235862

With all of his Federalist Papers quotes, I think LJ wants to set the wayback machine all the way to 1802 or so, back before Marbury v. Madison screwed everything up. The combination of lifetime appointments and judicial review is what made the Court a political powerhouse, not some supposed Liberal attempt to stack the courts in their favor. So since any Justice would rather impale him/herself on a gavel than overturn something as historic as Marbury, I think you must take your own advice. If the power of the judiciary concerns you, then “convince the people to change it” and create term limits on the Supreme Court instead of lifetime appointments. I think everyone would agree this would be a good thing.

On the above discussion of media bias, can anyone say with a straight face that Fox News isn’t biased? C’mon, they called their countdown to the 2004 election the “countdown to Bush’s re-election”. Yet, with their “we report you decide” stance, they claim to be the only “unbiased” news station out there. Is this the kind of “honesty” that we need?

L

Posted by: leatherankh at October 11, 2007 9:40 AM
Comment #235863

“No such thing as human objectivity”? Sounds like an intellectual cop-out to me

Posted by: leatherankh at October 11, 2007 9:42 AM
Comment #235864

Max, you confuse objectivity… with honesty, the sincere attempt to convey what you believe to be true… There is no such thing as human objectivity.

Which is why it’s so important to try to be objective despite our prejudices. When you stop trying, it seems to me there’s a tendency to lie.

Posted by: Max at October 11, 2007 10:01 AM
Comment #235866

leatherankh,

First, judicial review is IN federalist #78. The language of Marbury is very like that Hamilton uses, in fact.
Second, were I to have a visit with Mr. Peabody I would only need to go back to 1935 or so. Roosevelt could not do what he wanted to do constitutionally so he used flagrantly political appointments to creat a court that would break the law, literally, for his convenience.

There are things the government does today for which the Constitution gives it no power. I am all for amending the Constitution to have it allow what government MUST do. What is bad for the future is for us to permit the government to exercise powers that are not in the people’s pact with the government.

The government is OUR SERVANT, and the Constitution is its contract. If we think it has to do things the contract does not contain CHANGE THE CONTRACT. Don’t allow your employees to decide for themselves what they will be allowed to do.

I was once a candidate for the ministry in the Methodist Church. One of the questions asked of such candidates is whether they age going on toward perfection. That is not the same thing as asking if you are perfect. It is a challenge to strive toward what cannot, in this life, be achieved. The quest for objectivity is that same way. An honest, humble person can strive for objectivity, and even achieve levels of it, but true objectivity is an unreachable goal.

We are all prejudiced. That is an admission, not a goal. If you can’t admit your prejudices you have no hope what-so-ever of arriving at anything like such objectivity as is humanly possible in this world.

So, Max, we agree on this, right?

Posted by: Lee Jamison at October 11, 2007 10:46 AM
Comment #235871

Lee,

We agree, but I don’t think recent newspeople like Rush Limbaugh or FOXnews are striving to be objective when they say they are biased.

Also, here’s a quote Edmund Randolph made during the Constitutional Convention:

“[The purpose] is to insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.”

It’s possible that Hamilton (who wanted a monarchy, not a Republic…) and Edmund disagreed as to intent, but then, that would be an example of how there may not be one original intent amongst the founding fathers.

Originalism is fairly new. Are you suggesting that the courts have acted with total power throughout our history? Seems to me they have always been just a balance of power, which interpret, not alter, the constitution.

Posted by: Max at October 11, 2007 11:41 AM
Comment #235872

Max,
Should we be troubled that people feel free to express what they feel is important in their effort to affect public debate? I don’t think so.

As to the “total Power” question, what I am suggesting is that the founders always intended for the Constitution to apply real checks on the power of the various branches. The most consistent thing I find in what Hamilton, Madison, and Jay were saying was that the two greatest dangers are, first, a government with no power to do the people’s will, and second, a government in which that power can be concentrated in such a way as to overwhelm the legitmate rights of the the people. If our Supreme Court can make decisions citing, for example, foreign or international law, or using the commerce clause to limit access to guns on college campuses, they have stepped beyond the mandate of our contract with our government.

You don’t let your yard man decide for himself without consulting you whether he is going to cut one of your trees or charge you to cut your neighbor’s lawn, but we are permitting our government to do something like that by exceeding its contract with us.

Posted by: Lee Jamison at October 11, 2007 12:09 PM
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