The case, Trinity Methodist Church South v. Federal Radio Commission (1932), made its way to federal circuit court, which denied his license renewal and, more importantly, upheld the FRC's power to license or deny stations on the basis of the content of their speech.
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Fly wrote, "A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to the support of principles he happens to regard most favorably. In brief, the broadcaster cannot be an advocate.” It was the "No True Scotsman" fallacy enshrined in policy.
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The radio industry pushed back, which ultimately ended with the FCC in 1949 repealing the Mayflower doctrine but still asserting that licensees who editorialize are "under an obligation to insure that opposing points of view will also be presented."
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This 1949 statement was the basis of the later Fairness Doctrine, which Congress indirectly validated in 1959 while trying to make sure that upstart politicians couldn't get a broadcast advantage over incumbent politicians in the election of 1960.
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The FCC slipped the Fairness Doctrine in w/ this "equal time" rule, but let's focus on the Fairness Doctrine. From 1949 - 1963, the FCC had exercised a policy of salutary neglect. There was relatively little attempt to control the content of broadcasting compared to the 30s.
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But something big was changing just under the surface of the radio industry. The big radio networks, which had controlled ~95% of all stations in the 1940s, turned its attention to the new television medium.
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Most new radio licenses started going to small-timers, like a car dealer who wanted a station to promote their business. Money was tight for these indie stations, so they were open to selling timeslots to previously marginalized and radical groups.
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That included a new generation of right-wing radio broadcasters who (unfairly) attacked liberals and Democrats as communist sympathizers. By 1961, President JFK was a particular target, whether for his mishandling of the Bay of Pigs or his proposed Nuclear Test Ban Treaty.
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And this new "Radio Right," as I call it, went from nothing to something in just a few years. For example, the top of these broadcasters, the fundamentalist minister from New Jersey Carl McIntire, had gone from airing on 2 stations in 1956 to over 468 by 1964.pic.twitter.com/vvGOn9UNrF
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To give you a sense of the scale, McIntire's estimated weekly audience was 20 MILLION (which, for sake of comparison, is as many as Rush Limbaugh at his peak some forty years later.)
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JFK, who had narrowly won in 1960, wanted these Radio Right guys quashed. His brother & Attorney General Robert Kennedy (also the reason for anti-nepotism rules that held until Trump & "the Kush") concocted a plan with the help of labor union allies Walter & Victor Reuther.
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Their plan, nicknamed the "Reuther Memorandum," was, first, to use IRS audits to dry up the flow of listener donations to right-wing broadcasters; then they would use FCC Fairness Doctrine complaints to put pressure on the stations that sold these broadcasters airtime.
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You'll have to read my book for more about the IRS's "Ideological Organizations Project," but the Fairness Doctrine component was also highly successful. JFK told his newly appointed FCC Chairman Bill Henry in the summer of 1963, "It is important that stations be kept fair.”
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Henry promptly issued a "clarification" of the FD rules that singled out examples of conservative speech needing balancing by liberal voices. If a station didn't balance, well, someone could file a Fairness Doctrine complaint that would be considered at license renewal time.
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Losing a license was the death penalty for stations. Your expensive transmitter & tower were worthless without it. But even if you didn't lose your license, you might have to bear the expense of hiring legal counsel to fight the complaints, extra staff to show FD compliance, etc.
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Henry also formulated something called the Cullman Doctrine, which stipulated that response time to personal attacks--like, say, a criticism of an administration official--should be provided for free if the victim of the attack said they couldn't afford to pay.
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(They could never afford to pay.) This made allowing direct criticism of public figures an expensive proposition for station owners, who responded by ditching conservative broadcasters known for making attacks. Apolitical and mainstream content was less fuss, less muss.
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Here's an example of how the JFK administration used the FD to mute critics. JFK wanted a Nuclear Test Ban Treaty w/ the USSR as the centerpiece of his reelection bid. (He didn't yet know that he'd soon lose a meaningful portion of his skull in Dallas.) The Radio Right hated it.
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The White House organized a secret front organization, the Citizens Committee for a Nuclear Test Ban, to threaten stations that aired critiques w/ FD complaints unless they were given free response time. The plan was a success & 100s of hours of free pro-treaty time was secured.
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To give just one more example, the Democratic National Committee also secretly organized a pressure campaign in 1964 to get free airtime for the LBJ campaign. Eg, they demanded response time after a host accused LBJ of using the Gulf of Tonkin incident as a pretext for war.
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Johnson had done precisely that, of course--infamously saying behind closed doors that he didn't care if the radar ghosts were whales--but the truth in this instance was damaging and the lie politically useful.
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Some stations attempted to fight back. One case went to the US Supreme Court, Red Lion Broadcasting v. FCC. The court, citing the Trinity precedent, upheld the FD, making a tortured comparison to acceptable limits placed on trucks carrying loudspeakers. https://www.oyez.org/cases/1968/2
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But the justices had been snookered. They were totally unaware of the facts of the case, of the carefully laid plan for censorship created by the Kennedy administration and carried forward by the DNC. Indeed, the DNC had secretly backed and funded the complainant.
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They paid for his health insurance, notified him of Red Lion's personal attack, and so on. So the court had pooh-poohed allegations of censorship while validating the most successful episode of government censorship of the last half century.
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In any case, the censorship campaign was a wild success. Radio stations started dropping right-wing broadcasters in numbers, as you can see from this chart of Carl McIntire's total station count. By the 1970s, the Radio Right was a shadow of its former self.pic.twitter.com/ncIKsGuXa9
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To step back from the story for a moment, let me note that techno-progressives often have a misplaced nostalgia for the Fairness Doctrine, a belief that leads them to gloss over these sordid examples. Does any of this sound "imperfect but legitimate"?https://twitter.com/VWPickard/status/1349065201732251649?s=20 …
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The end of the Fairness Doctrine era began in the late-70s w/ the laissez-faire commissioners appointed by Jimmy Carter (the true Great Deregulator). Reagan's FCC ended the rule in '87. Congressional Democrats tried to reinstate the rule, but Reagan vetoed and that was that.
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So what does that history have to do with today? The Fairness Doctrine's been gone for ~ four decades. Besides, it wouldn't apply to cable or the internet since there is no scarcity rationale for either. So why are people suddenly talking about the Fairness Doctrine again?
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First, note how lucky we are that the courts/Congress decided to regulate the internet under a print regime rather than a broadcast regime. As a result, the internet was "born free," to borrow an
@AdamThierer phrase, with all the speech protections that had accrued for print.Show this thread -
For example, with the (in)famous Section 230, Congress formally codified for the internet a set of legal precedents that had sprung up to protect bookstores from publisher liability, as
@bskorup and@jrhuddles have detailed. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3501713 …Show this thread -
Thank goodness! Imagine how disastrous a Fairness Doctrine for the internet would have been, if outlets & platforms had an affirmative obligation to ensure that articles published or user posts permitted were carefully balanced according to an ambiguous public interest standard.
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