The Volokh Conspiracy - A Question for Fairness Doctrine Supporters:

If you support a reintroduction of the Fairness Doctrine — which is to say a rule under which broadcasters are obligated to give "each side of [the debate on public] issues ... fair coverage" — how would you envision its being enforced?

1. Multiple sides: For instance, say that a talk show host argues in favor of legalization of drugs. The broadcaster would then have to give time to the pro-drug-war perspective. But what if someone demands time for an intermediate proposal, such as keeping drugs illegal but ratcheting down penalties? Should the broadcaster be obligated only to carry some rival views (i.e., the broadcaster could choose), the most opposed views (i.e., the broadcaster would have to take the hard-core pro-drug-war advocate but not the mid-course advocate), the most popular rival views, all rival views, or all credible-seeming rival views? How should this be decided?

2. Broadcaster choice aimed at discrediting rival views: In particular, if the broadcaster has discretion about which views to choose, what if the broadcaster deliberately chooses the most extremist rival speakers — or for that matter, rival speakers who are just inarticulate or foolish — to present the contrary views?

3. Amount of time: How much time must the broadcaster devote to presenting contrary views — as much time as was given to the original views? Just some modest amount of time?

4. Extremist views: Would the KKK have to be given time to respond to pro-racial-tolerance views? Would jihadists have to be given time to respond to insults of al Qaeda?

Of course, these problems arose before 1987, while the Fairness Doctrine was in operation. The general answer was apparently this, according to Krattenmaker & Powe's Regulating Broadcast Programming:

[A station] can determine largely as it pleases how much time to devote to the differing viewpoints and who and what materials to use in presenting each side. To reduce the need for close and sustained agency supervision of broadcasters, the Commission built into the doctrine a remarkable amount of broadcaster discretion. As a result, surprisingly little balance is necessary to meet the obligation to cover all significant sides of an issue.

Would that approach, in your view, suffice? Would you prefer something more demanding, and, if so, how would you define it, and how would you answer the questions I gave above?

More broadly, I take it that things have changed since the 1980s. Most importantly, the Internet has made it much easier for activists to organize. If a broadcaster broadcasts some anti-gun presentation, I take it that gun rights activists can within hours learn about it, file many demands for time to respond, and even create striking video responses (or perhaps edit them from existing materials).

Where before a broadcaster might have gone only a few demands for response time, now a broadcaster may find itself getting multiple demands daily for nearly every controversial issue it covers. And if a broadcaster appears to be providing only "surprisingly little balance," these same well-organized groups can arrange the filing of multiple complaints with the FCC — again, every time a broadcaster is accused of not promptly responding as to any controversial issue it covers.

There would certainly be lots of incentive for activists in a wide range of fields to get aggressive about demanding response time, and complaining about perceived inadequacies in response time: The activists will feel that they are fighting back against the Bad Biased Media (whichever way they think the media is biased). They will get a chance to get extra airing for their views. And they will suspect that their actions may in some measure deter the Bad Biased Media from expressing those views that trigger the activists' aggressive response.

* * *

In any case, perhaps I'm wrong about the changing environment; but in any event surely any reinstituted Fairness Doctrine would have to confront the questions I raised above in items 1 through 4. If you support the Fairness Doctrine, how would you answer those questions?

	[Eugene Volokh, July 27, 2007 at 7:34pm] Trackbacks A Question for Fairness Doctrine Supporters: If you support a reintroduction of the Fairness Doctrine — which is to say a rule under which broadcasters are obligated to give "each side of [the debate on public] issues ... fair coverage" — how would you envision its being enforced? 1. Multiple sides: For instance, say that a talk show host argues in favor of legalization of drugs. The broadcaster would then have to give time to the pro-drug-war perspective. But what if someone demands time for an intermediate proposal, such as keeping drugs illegal but ratcheting down penalties? Should the broadcaster be obligated only to carry some rival views (i.e., the broadcaster could choose), the most opposed views (i.e., the broadcaster would have to take the hard-core pro-drug-war advocate but not the mid-course advocate), the most popular rival views, all rival views, or all credible-seeming rival views? How should this be decided? 2. Broadcaster choice aimed at discrediting rival views: In particular, if the broadcaster has discretion about which views to choose, what if the broadcaster deliberately chooses the most extremist rival speakers — or for that matter, rival speakers who are just inarticulate or foolish — to present the contrary views? 3. Amount of time: How much time must the broadcaster devote to presenting contrary views — as much time as was given to the original views? Just some modest amount of time? 4. Extremist views: Would the KKK have to be given time to respond to pro-racial-tolerance views? Would jihadists have to be given time to respond to insults of al Qaeda? Of course, these problems arose before 1987, while the Fairness Doctrine was in operation. The general answer was apparently this, according to Krattenmaker & Powe's Regulating Broadcast Programming: [A station] can determine largely as it pleases how much time to devote to the differing viewpoints and who and what materials to use in presenting each side. To reduce the need for close and sustained agency supervision of broadcasters, the Commission built into the doctrine a remarkable amount of broadcaster discretion. As a result, surprisingly little balance is necessary to meet the obligation to cover all significant sides of an issue. Would that approach, in your view, suffice? Would you prefer something more demanding, and, if so, how would you define it, and how would you answer the questions I gave above? More broadly, I take it that things have changed since the 1980s. Most importantly, the Internet has made it much easier for activists to organize. If a broadcaster broadcasts some anti-gun presentation, I take it that gun rights activists can within hours learn about it, file many demands for time to respond, and even create striking video responses (or perhaps edit them from existing materials). Where before a broadcaster might have gone only a few demands for response time, now a broadcaster may find itself getting multiple demands daily for nearly every controversial issue it covers. And if a broadcaster appears to be providing only "surprisingly little balance," these same well-organized groups can arrange the filing of multiple complaints with the FCC — again, every time a broadcaster is accused of not promptly responding as to any controversial issue it covers. There would certainly be lots of incentive for activists in a wide range of fields to get aggressive about demanding response time, and complaining about perceived inadequacies in response time: The activists will feel that they are fighting back against the Bad Biased Media (whichever way they think the media is biased). They will get a chance to get extra airing for their views. And they will suspect that their actions may in some measure deter the Bad Biased Media from expressing those views that trigger the activists' aggressive response. * * * In any case, perhaps I'm wrong about the changing environment; but in any event surely any reinstituted Fairness Doctrine would have to confront the questions I raised above in items 1 through 4. If you support the Fairness Doctrine, how would you answer those questions?