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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?

Smokey:
As long as there's nothing preventing a liberal station from operating, there is no censorship. The libs' only problem is that they are incapable of running a broadcasting business, and blame conservatives for their ineptness.

This also impacts property rights. If a conservative station has to include a libtard point of view, naturally they will lose some of their listeners/viewers. Who wants to listen to the Stalinist/wacko/nanny state point of view? If there was a market for that [outside of midnite - 4 a.m.], Air America would still be in business.

Let the market decide.
7.27.2007 8:57pm
Eugene Volokh (www):
Smokey and others: Let's cut down on the rhetoric and the insults, and focus on the substance.
7.27.2007 9:01pm
Smokey:
OK. Let the market decide. Anyone with the resources can buy a station. Why the insistence on horning in on someone else's property?
7.27.2007 9:09pm
ras (mail):
Additionally to EV's q's,

... who specifically would present each point of view?

... how would that pt of view be presented?

It seems to me that even if EV's other q's are answered satisfactorily - unlikely, but let's presume so for sake of arg - that one could easily influence the perception of the various args by the selection of who presents them and how well they do so.

If, for example, the usage of a little known documentary film by a modern Nazi on the subject of economics incl'd a section advocating higher or lower taxation, would the very selection of the Nazi and/or his (discredited?) documentary be "fair?"
7.27.2007 9:16pm
Avatar (mail):
But this isn't the case, Smokey - there's a limited number of stations licensed to operate in a given geographic area. NOT everyone can own one - only the top few comers, so to speak. (Or rather, anyone can own a station, but there's only a few licenses to operate one available - most of which are in the hands of interests who are unwilling to sell. ;p)

I don't support the Fairness Doctrine on policy grounds, most of which were detailed in the original post. But given the extreme amount of regulation required for broadcasts in the first place, you can plausibly argue that the government has at least some interest in regulating the content of those broadcasts.
7.27.2007 9:16pm
ras (mail):
Oops, Eugene, you already covered half of my q in your pt # 2. That'll teach me to comment while working. My apologies.

But I'll leave hang the other part about the ... what to call them ... the lousy presenters?: i.e. even if the speaker is reputable, what if he or she was just a terrible presenter who consistently convinced no one, perhaps as a consequence of a monotone presentation style? In that case, they might look, on paper, to be reputable and legit to most people, but nonetheless do a terrible job of making their side of the case.
7.27.2007 9:20pm
PJT:
Smokey - I dont think it has much to do with people disagreeing with Air America's views. I would tend to agree with Air America more than O'Reilly, Limbaugh, etc, but would MUCH rather listen to O'Reilly, et al.

There just arent any interesting, amusing, and likable liberal commentators, with the possible exception of Olberman. Which is strange, because on a whole I would say liberals are usually more enjoyable/likable people.
7.27.2007 9:26pm
PJT:
I should specify I am referring to social liberals vs. social conservatives.

And regarding the point of the post, I don't understand how anyone could support the fairness doctrine. It is unconstitutional and immoral on many grounds.
7.27.2007 9:31pm
Justin Levine:
One very important aspect to the Fairness Doctrine debate that you have overlooked Professor V. (as do many others who take on this topic) - How to consider the impact of non-English speaking broadcasters.

Although theoretically it would apply to all broadcasters equally, as a practical matter, the FCC has historically been much laxer in enforceing its regulations against non-English speaking broadcasters (particularly in radio) with regards to payola, indecency, etc. [Caveat: a work for an English speaking AM radio station in Los Angeles.]

The problem is that the FCC rarely invokes these enforcemrt provisions on their own. It usually takes a listener/viewer to complain to the station [and the FCC] in order to force action. This is always the case in relation to the Fairness Doctrine.

Would special interest groups on various topics have the resources to monitor non-English speaking stations (and get accurate translations) to see which ones are offering opinions on controversial topics? Probably not. Even if they did, would the rebuttal have to be in the primarly language that the station broadcasts in? Would they have to provide an interpreter?

I suspect that the Fairness Doctrine would primarily be invoked against English speaking stations. Non-English broadcasters would reap a subtle but sustained windfall by having to deal with Fairness Doctrine provisions less often, and thus have its influence artificially increased in markets such as Los Angels which has a vibrant Spanish speaking media (but whose stations don't have much diversity in terms of the variety political opinions).

I don't mean to ignore the other great questions you have posed, but I thought this should be more food for thought.
7.27.2007 9:38pm
A. Zarkov (mail):
For all the reasons EV points out, the Fairness Doctrine is unworkable. Everyone can complain about something they see or hear on radio or TV. With the help of the Internet complainers can coordinate and make life miserable for the station or the FCC. Eventually stations will stop broadcasting any controversial to avoid trouble.

In the Miami Herald Publishing Co. v. Tornillo (418 U.S. 241) (1974), Chief Justice Warren Burger wrote, "Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate." But I suppose that's what some politicians want. Trent Lott didn't like opposition to the recent Senate immigration bill and said, "Talk radio is running America. We will have to deal with that problem." Presumably he means bring back the Fairness Doctrine. His statement is somewhat puzzling as the Talk Radio community went to bat for him. He really does belong to the "stupid party." Just who does he think will for vote for him in the future, moveon.org?
7.27.2007 10:29pm
Steve:
The libs' only problem is that they are incapable of running a broadcasting business, and blame conservatives for their ineptness.

Get this, virtually every institution in the media has a liberal bias, and yet liberals are incapable of running a broadcasting business! Smarter commentors, please.

I don't know if we have any pro-Fairness Doctrine people around these parts. I'm a liberal who strongly opposes it. In this age of cable TV and the Internet, with so many alternative sources for opinion and news, it seems pointless at best.

What surprises me is that many liberals seem able to comprehend the downside of the Fairness Doctrine (even viewed from a partisan perspective) even after six years of the present administration, all the antics with Kenneth Tomlinson and PBS, etc. Regulations won't always be interpreted by your friends.
7.27.2007 10:30pm
Fub:
Steve wrote at 7.27.2007 9:30pm:
I don't know if we have any pro-Fairness Doctrine people around these parts.
I think there is a reason for that.
I'm a liberal who strongly opposes it. ...
Whether to resurrect fairness doctrine isn't a partisan question. It is an IQ test.
Regulations won't always be interpreted by your friends.
And that, if nothing else, is why.
7.27.2007 11:26pm
Andy Freeman (mail):
> you can plausibly argue that the government has at least some interest in regulating the content of those broadcasts.

Is it enough to have an interest? What if there is an interest but we can't come up with a useful way to implement that interest? Or, are we assuming that if there's an interest, the powers that be will always come up with a useful implementation?
7.27.2007 11:29pm
John Burgess (mail) (www):
"Discreting"?!!? Shudder.

I guess there's a first time for everything....
7.27.2007 11:35pm
Dogwood (www):
Don't support the Fairness Doctrine and I believe the ease and affordability of launching your own Internet-based radio station may make the whole debate moot.

Granted, Internet radio has some distinct disadvantages, i.e. no in-car reception for drive time talk shows, yet, and selling ad space may be more difficult, but the startup and operational costs are miniscule. Plus, more and more homes have broadband access, thus increasing the potential size of the station's audience.
7.27.2007 11:35pm
Fub:
Dogwood wrote at 7.27.2007 10:35pm:
Granted, Internet radio has some distinct disadvantages, i.e. no in-car reception for drive time talk shows, yet, and selling ad space may be more difficult, but the startup and operational costs are miniscule.
Sure, either for webcasting only talk shows, or if you don't bother to pay RIAA, ASCAP, BMI and SESAC for music you webcast. The second choice ultimately will be very expensive.

In the alternative, you could webcast only music for which you have a signed agreement by the performer and the composer, or some some other royalty free license.
7.27.2007 11:49pm
Duncan Frissell (mail):
Justin,

When Honolulu's KTRG had its license renewal challenged in '72 (and was sold by the owner because of costs of the fight) one of the complaints was about personal attack rule violations by a Japanese program host. So it does happen. Most of the rest of the KTRG complaints involved Fairness Doctrine violations.
7.28.2007 12:16am
Elliot123 (mail):
I suspect all this is just code for Rush Linbaugh. The guy has more influence than any US senator, and they consider that very, very unfair.
7.28.2007 12:21am
ProfMDM (mail) (www):
As usual, while I disagree with Prof. Volokh on a vast number issues, he's hitting the nail on the head here. The theory I've heard on #1 and #4 is that some "independent" entity would make a determination about what constituted "truth" and what constitued "fairness." I have severe issues with that, or anything that would involve anyone other than me making those decisions.
7.28.2007 12:33am
Rich Rostrom (mail):
There is also the question of what constitutes "opposing views". A Democrat might demand to answer a Republican - and an anarchist might demand to answer both.

Who decides?
7.28.2007 12:43am
Larry Fafarman (mail) (www):
For the following reasons, I oppose a fairness doctrine for broadcasters:

(1) It would be a great burden on broadcasters because of limited air time.

(2) It is difficult or impossible to decide what is liberal and what is conservative.

However, for the following reasons, I am strongly in favor of an Internet fairness doctrine that would prohibit arbitrary censorship of visitors' comments on blogs:

(1) Comment space on blogs is virtually unlimited, so there would be no burden on bloggers.

(2) The more popular blogs (e.g., The Volokh Conspiracy) have become major de facto public forums.

(3) Blogs are being authoritatively cited by court opinions, scholarly journal articles, etc., making fairness and accuracy of vital importance.
7.28.2007 12:56am
Elliot123 (mail):
Since anyone can create their own blog with five minutes effort, there is no need for any restriction on what the owner chooses to display in the blog. For practical purposes, the medium is unlimited. Commenters who want to make sure their views are presented merely have to start their own blog.
7.28.2007 1:44am
SeanSatori (mail):
The old "Fairness Doctrine," for what it's worth, worked Eugene.

The reality is that there should be a requirement that someone using the public airways be required to adhere to a standard that serves the public interest. The radiofrequency spectrum belongs to the public, whether they are conservative, liberal, liberatarian or authoritative. Therefore, use of the spectrum must benefit the public as a unified whole, not just a certain subset of them.

But the only way to really do that is to simply enforce an amorphous standard that all views need to be represented. From there, give the stations the responsibility to do it. Enforcement of this principle should be limited to those users that, in the judgment of many others, exceed the bounds of one-sidedness.

It's complex, messy and not precise in the least. But it's the only way to do it.

The key is to get corporate and other interests to understand that they have leased something that everybody owns. Therefore they can't just cater to those that profit them the most.

S
7.28.2007 1:46am
Ramza:
One part of the fairness doctrine that was supposedly gotten rid of that seemed to make sense to me was that if you attacked someone on the radio you have to give notice to the person in writing within 30 days so they became aware of it and have the possibility to respond in another forum. Why was this part abandon or am I missunderstanding a different part of the fairness doctrine?
7.28.2007 2:15am
Larry Fafarman (mail) (www):
Since anyone can create their own blog with five minutes effort, there is no need for any restriction on what the owner chooses to display in the blog.

As King Lear said, "O', reason not the need!" There is no "need" for anything.

The ability to start a new blog is not adequate compensation for being censored on a popular blog because new blogs are not instantly popular and may never become popular.

Also, blogs where visitors' comments are arbitrarily censored lack fairness and have low reliability and therefore should never be authoritatively cited by court opinions, scholarly journal articles, etc..

Also, as for the argument that blogs are "private," rights of privacy are a myth. For example, if they find kiddie porn stored in the "privacy" of your own home, they throw you in jail and throw away the key. Environmental laws and regulations can amount to virtual confiscation of "private" land.
7.28.2007 2:31am
Bruce Hayden (mail) (www):
I think that you give away the game here, at least in this forum.
But the only way to really do that is to simply enforce an amorphous standard that all views need to be represented. From there, give the stations the responsibility to do it. Enforcement of this principle should be limited to those users that, in the judgment of many others, exceed the bounds of one-sidedness.
Sounds pretty squishy and arbitrary to me. But if truly applied even handedly, it would seem then that Rush Limbaugh at least would be safe.

Of course, the requirement that all views be heard would effectively kill opinion radio, since it would be effectively unworkable. There are just too many sides to many issues to be heard.
It's complex, messy and not precise in the least. But it's the only way to do it.
You presuppose that it should be done. I would suggest that saying that was not the consensus in this forum would be an understatement.
The key is to get corporate and other interests to understand that they have leased something that everybody owns. Therefore they can't just cater to those that profit them the most.
So, your solution would apparently be to replace voting by the millions of listeners to voting by some small group of unelected appointees or bureaucrats. I am not quite sure of the logic there, except to note that there seems to be a whif of elitism there somewhere.
7.28.2007 2:42am
Bruce Hayden (mail) (www):
I think in the end, it would be unworkable.

The big glaring loophole (in retrospect) was the exception for news programs. I think many now are aware that how the "news" is presented and what "news" is presented is as political, if not more so, than much of talk radio. If you don't believe this about the mainstream media, just think of your reaction to Fox News.

And on the airways, the biggest offender with this is probably NPR. How often do you hear anything the least bit positive about the war in Iraq on NPR? But you hear the drumbeat of failure there more consistently than you do from the liberals in Congress.

So, I would see a number of things happening if the Fairness Doctrine were reimposed. First, NPR and the mainstream press would be attacked for their apparent biases. The former would be esp. humorous in finding a judge who had not contributed to them, and thus could be considered unbiased.

Assuming that the "news" exception is written back in (and assuming that it survived challenge), I would expect a number of talk shows might convert themselves to news shows. After all, the complaint with much of news already is the bias of what is reported and how, and a lot of talk radio includes a rebuttal of that through selective reporting on the other side. Something like the Daily Show on steroids, but from the other side.

Besides, what is news anyway? Was Rathergate news or opinion? We are now at a point where opinion is routinely reported as news. You just have to report on someone else saying it, and it becomes news. And, with Dan Rather and Mary Mapes, it doesn't even have to be a real person or real documents. So, now we can have the conservative pundits reporting on what Ann Coulter says as news.
7.28.2007 3:20am
Larry Fafarman (mail) (www):
Ramza said (7.28.2007 1:15am) —
One part of the fairness doctrine that was supposedly gotten rid of that seemed to make sense to me was that if you attacked someone on the radio you have to give notice to the person in writing within 30 days so they became aware of it and have the possibility to respond in another forum. Why was this part abandon or am I missunderstanding a different part of the fairness doctrine?

Those were two corollary doctrines called the "political editorial rule" and the "personal attack rule," which were introduced in 1967 and repealed in 2000 — the fairness doctrine was abandoned in 1987. One reference says,

. . .in 1967, two corollary doctrines were added. The first was the political editorial rule, requiring that if a station editorialized either for or against a candidate for public office, the station had to notify the disfavored candidate within 24 hours and allow him/her to reply to the editorial; the second was the personal attack rule, which states that when a person or group's character or integrity is impugned during the discussion of a controversial issue, the station must notify the person within one week, and offer a reasonable time for response . . . . .When the fairness doctrine came before the courts in 1987, they decided that since the doctrine was not mandated by Congress, it did not have to be enforced. FCC suspended all but the two corollary doctrines at this time . . . . In 2000, when the FCC failed to justify the two remaining corollary rules, the political editorial rule and the personal attack rule were repealed. — from here

Another source says,

What Repeal of the Personal Attack and Political Editorial Rules Means for Your Newsroom

October 11, 2000

A U.S. Court of Appeals today ordered the FCC to repeal the personal attack and political editorial rules. Here's how that decision affects your newsroom decision-making.

— Commercial broadcasters now may air editorials endorsing political candidates, should they wish to do so, without having to offer time to opposing candidates. (Noncommercial stations remain subject to a statutory mandate barring such editorials, which was not affected by the court action.)
— Broadcasters may air materials that would constitute a personal attack without fear of triggering the FCC's notice and response time mandate (obviously, relevant defamation law would still apply).
— Because the court threw the rules out as a result of the FCC's inaction — and not because of the rules' constitutional infirmities — there does remain room for the FCC to revive the rules, and, for that matter, the Fairness Doctrine. To do so, the FCC would have to undertake a new rulemaking proceeding.

— from here

I don't know anything about the statement, "Noncommercial stations remain subject to a statutory mandate barring such editorials."

I agree with you that these two corollary doctrines should have been kept.

In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court struck down as unconstitutional a Florida "Right to Reply" law for newspapers that was equivalent to the FCC "political editorial rule" described above. IMO that was really stupid. The Miami Herald decision is discussed in Item #8 in the following article on my blog —
see here
7.28.2007 6:24am
KenB:
Prof. Volokh's questions demonstrate the impossibility of applying the "fairness doctrine" fairly. But is fairness the goal or is the goal silencing those with whom you disagree? I am less sanguine than other commenters that the left will respond to Prof. Volokh's questions as I do.

To the extent I have optimism, the questions give me hope that, if the doctrine is adopted, commercial broadcasters will soon enough petition Congress to abolish it so they can have peace. Not that they deserve it.
7.28.2007 9:48am
Houston Lawyer:
The whole purpose of reviving the fairness doctrine is to give a regulatory excuse to go after Rush, Hannity and Fox News.

Fairly applied, the fairness doctrine would have required the shutdown of ABC, NBC, CBS and PBS decades ago.
7.28.2007 9:54am
Russ (mail):
Many people here are missing the point about why some want the fairness doctrine reinstituted - it would effectively shut down views with which a lot of politicians disagree.

Yes, technically the government wouldn't be "shutting down" radio stations, but the burden that requires "balance" would make it so that most radio stations would not want to go through the hassle. They'd just stop opinion talk radio so they wouldn't have to worry about it. And AM radio would go back to being a dead entity.
7.28.2007 10:24am
hunter:
The arguments presented by Prof. V are excellent, but I believe they play to the strengths of those promoting to reimpose this rule.
The "Fairness Doctrine" is not about fairness at all.
It is about government censorship of citizens. Period.
I think to allow any discussion of the "Fairness Doctrine" to occur that does not challenge the fundamental lack of legitimacy in this implicitly grants to those promoting this latest version of government censorship a validity they do not deserve.
If some in the public square want to impose censorship, make them defend it for what it is. Those want censorship do not care a fig about how unworkable it is. They want to shut down discussion and control agendas. Censors have always faced the challenges Prof. V outlines so well in his post. Censors do not care how tough it is. They want censorship.
The left in general, apparently along with a few others, are not after fairness at all. They are after quiet from the right.

The rationale that since airwaves are public, they should be censored makes no sense at all. Public does not mean government censorship. The airwaves, except for cosmic radio chatter, are empty - until people fill them. And the content of what people fill them with is speech. And speech shall not be censored by the government. It means the government regulates their use so they are used in a technically efficient manner - so that station footprints and frequencies do not step over each other. What license owners and station managers do with their license, within the law, is of no business of the government's at all. And the Constitution is explicitly clear: no regulation of speech. Period. Cell phones operate over public airwaves. Part of our high cell phone bills involves licensing and regulating their use. Do we also need to have censorship of cell phones? Of course not. But knowing how slippery slopes operate, and how powerful data mining tools can be, those promoting this latest incarnation of censorship will not be long in pursuing ever broader definitions of 'fairness'.

So make the promoters of censorship speak to and address that, not explain how they will manage the monster they are seeking to create. Make them defend why they want to unleash the monster of censorship in the first place
7.28.2007 10:26am
hunter:
Another point that exposes the true motives of those promoting the "Fairness Doctrine":
Why is TV, cable, and satellite radio excluded from the demands of "Fairness"?
All of those media use radio frequencies at some point in their distribution process, and their frequency use is licensed by the FCC. If the motives of "Fairness Doctrine" promoters were about even a misplaced desire to have 'fairness', they would not be selectively going after broadcast radio. They would be demanding all media that relies on use of licensed airwaves be subject to the "Fairness Doctrine".
7.28.2007 11:31am
TheRadicalModerate (mail):
I agree that the Fairness Doctrine as originally implemented is unworkable in the modern, factionalized, instantly-mobilized environment we have today. However, I do think that there's an important public policy goal: We need to find some way to damp out some of the extremism that is creeping into public policy debates.

The problem is that extremist debates are popular and sell advertising, vs. those boring ol' reasonable discussions. Note that applying Fairness Doctrine pinciples to an extremist viewpoint inevitably leads to the provision of a counterbalancing extremist view, which just makes things worse.

The real goal ought to be moderation of the debate, and ensuring that all facts get surfaced, rather than the balancing of opinion. In the past, a laissez faire approach to this has worked fine--not so much any more. I'm worried that we're pretty close to a line where reasoned public debate--at least on push-based media--is becoming nearly impossible.

I have no clue how you could legislate something like this. Perhaps require broadcasters to present verifiable facts that were not presented in a previous piece? In any case, any legislation in this area ought to follow the "measure twice, cut once" dictum. Our old friend, the unintended consequence, is waiting hungrily for somebody to go off and do something stupid in this area.
7.28.2007 11:44am
Eugene Volokh (www):
Hunter: The Fairness Doctrine did apply to broadcast TV; I take it that, if it were reinstituted, it would apply to broadcast TV again. It probably cannot apply to cable because the Supreme Court has held that cable is generally fully protected by the First Amendment, rather than being entitled to the lesser protection given to broadcasting. See Turner Broadcasting v. FCC (1994). I don't know whether a reinstituted Fairness Doctrine would or could apply to satellite radio. So one can fault the Fairness Doctrine for many reasons, but not, I think, for the reasons you mention.
7.28.2007 11:51am
Eugene Volokh (www):
SeanSatori: You write that "use of the spectrum must benefit the public as a unified whole, not just a certain subset of them," which I take it is a criticism of radio stations that express the views of only half (or a third or however much) of the population, and therefore "benefit" only that fraction of the population.

But that rationale isn't limited to politically skewed stations. A classical musical station, for instance, appeals and benefits only to those people who like classical music. A sports radio station appeals to and benefits only those who like sports. A Spanish-language station appeals to and benefits only those who speak Spanish (or are learning it).

Each of these audiences in a particular market may be smaller than, say, the hard-core Republican audience. Wouldn't the "must benefit the public as a unified whole" argument then condemn those stations even more than it would the station that conveys only a particular political view?
7.28.2007 11:54am
Eugene Volokh (www):
Sean Satori: You suggest the "amorphous standard that all views need to be represented." Three questions:

(1) If the standard is supposed to be mild -- "[e]nforcement of this principle should be limited to those users that, in the judgment of many others, exceed the bounds of one-sidedness" -- then what about a station that carries, say, only liberal broadcasters but takes some conservative callers. Good enough? Does it require some quota of conservative callers? What if it carries 8 hours of conservative hosts and 2 hours of liberal hosts?

(2) If the standard is really supposed to be that "all views" are represented, what about stations that refuse to represent the views of Klansmen, jihadists, and the like? After all, if you don't represent racist views, you aren't representing all views, are you?

(3) Here's what the Court said in Grayned v. City of Rockford about why "amorphous standard[s]" in First Amendment law are generally unconstitutional:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."
What do you think about this as applied to your proposed "amorphous standard" -- especially about the discriminatory enforcement concern labeled "Second" above?
7.28.2007 12:00pm
JBL:
I don't support the Fairness Doctrine, but for those who do, the fact that the airwaves are not infinite may point to something like a solution.

The standard, still admittedly fuzzy, would be that political or informational shows should make a good faith effort to represent as large a portion of the population as reasonably possible given the airtime available.

Stations would end up spending most of their time presenting more or less conventional Republican and Democratic Party opinions, with lesser time devoted to (for example) Green and Libertarian. There wouldn't really be a general need to get down to Nazis and Ecoterrorists. If a station wanted to do a segment on a small extreme group, it would be fairly easy to balance.

The questions about the amount of time given to the various views, as well as the question about the competency or eloquence of the presenters, could be addressed by a reasonable interpretation of 'good faith'.

It's also worth pointing out that it would be implemented on a relatively local scale, since broadcasters have a limited broadcast area. So in some areas it would be reasonable to present Christian programming without getting into a theological diversity quagmire. Stations in some cities could broadcast in Spanish or Mandarin or Farsi, and cater to the related cultural issues, without a requirement to turn into a Broadcast Tower of Babel.
7.28.2007 1:53pm
Larry Fafarman (mail) (www):
Hunter said (7.28.2007 9:26am) --
The "Fairness Doctrine" is not about fairness at all. It is about government censorship of citizens. Period.

I wouldn't put a period on that. A "fairness doctrine" does not censor anything -- it does not tell people what they cannot say. It only requires that media outlets provide free time or space for opposing views -- for opposing views, a fairness doctrine is the opposite of censorship. If all views are considered to be just "liberal" or "conservative" and the "fairness doctrine" is interpreted as meaning "equal time," then at worst one-half of a broadcaster's time would be controlled by the broadcaster and the other half would be controlled by the government. However, as Eugene Volokh pointed out (Item #1 in opening post), there is often a variety of kinds of views, not just liberal and conservative.

As I said, I am opposed to a fairness doctrine for broadcasters because (1) air time is limited and (2) I think it would be a regulatory nightmare (however, I am in favor of the "personal attack" and "political editorial" rules described in my comment of 7.28.2007 5:24am).

The rationale that since airwaves are public, they should be censored makes no sense at all. Public does not mean government censorship.

I don't think that "public v. private" is an issue here. Roe v. Wade notwithstanding, there is no such thing as a general right to "privacy." You can be thrown in jail for storing kiddie porn in the "privacy" of your own home. An environmental law or regulation can amount to virtual confiscation of "private" land.
7.28.2007 2:01pm
Justin Levine:
Duncan Frissell -

I never said that the Fairness Doctrine (or other FCC provisions) were never enforced against non-English speaking stations. I only said that it was enforced much less often against such stations (which is a fact). It also puts English speakers at a disatvantage since a non-English speaking station would be able to broadcast partisan propoganda and would not be held accountable under the Fairness Doctrine unless a group with opposite poiltical views happened to have an effective translator that was committed to constantly monitoring the station.

Your anecdote about KTRG from the '70's almost seems like a non-sequitor.
7.28.2007 2:26pm
Barbara Skolaut (mail):
Radical Moderate wrote: "However, I do think that there's an important public policy goal: We need to find some way to damp out some of the extremism that is creeping into public policy debates."

Extreme by whose standards, RM? Who will define "extremism"? You? Me? Eugene [he'd get my vote]? A nameless, faceless government bureaucrat of unknown political persuasion? Harry Reid? Bill Gates? George Soros? CBS?

For instance, I think that the Far Left is extremist [read: nuts]; a frightening number of others' mileage varies on that.

One man's extremism is another's moderation.
7.28.2007 2:51pm
vepxistqaosani (mail) (www):
Were I to favor the Fairness Doctrine, I would begin by quantizing points of view. Of course, neither I nor anyone else has any idea how to do that ... any system quickly dissolves into amorphous vagueness.

But I'll produce one anyway:

Let's give all opinions a weight between 1 and 100 and require stations to maintain an average of 50. Anarchy is 1, 'me for dictator' is 100, and anything said by David Gergen is 50.

I think it's a workable start.

It would actually be somewhat interesting to stratify all the opinions extant on, say, tax policy.
7.28.2007 3:08pm
hunter:
Larry,
You assert that the "fairness doctrine" is not about censorship. It is obviously about censorship. It imposes sanctions on broadcasters - fines or even the loss of their license- for either broadcasting or not broadcasting something a third party using government power approves.
That is coercion and censorship. Period.
Far too many of the posts here are trying to rationalize the imposition of censorship in the guise of something impossible to define such as 'fairness'. The only standard at work here is that of freedom or censorship.
And trust me on this: While the anti-freedom people who are pushing the impositon of the 'fairness doctrine' may give lip service to applying it TV, there is no way they will.
I think the fact that most posts here are basically accepting the concept of a 'fairness doctrine' in some form speaks very badly for our future as a free people.
7.28.2007 3:59pm
hunter:
And another thought - sorry about this-
What about the specialty stations. Pacifica, for example, is an extreme left wing network of stations. I bet you dollars to donuts right now that any 'fairness doctrine' will allow hard core lefty stuff to file for exemptions based on some bogus community balance rationalization.
What it boils down to is pretty clear: loud community activists will have a huge influence on what choices the market place in the public square gets to hear.
And which side has the loudes most annoying least representative community activists with nothing better to do than protest?
Money is the great equalizer. The FCC in its proper role of spending nearly all of its efforts on technical issues is doing a good job. The airwaves of AM radio are vibrant and full of new stations and talent. The government has no legitimate roll at all in regulating the free speech that occurs on any medium. Period.
7.28.2007 4:11pm
Larry Fafarman (mail) (www):
hunter said (7.28.2007 10:31am) --
Why is TV, cable, and satellite radio excluded from the demands of "Fairness"?
All of those media use radio frequencies at some point in their distribution process, and their frequency use is licensed by the FCC. If the motives of "Fairness Doctrine" promoters were about even a misplaced desire to have 'fairness', they would not be selectively going after broadcast radio.


One of the original reasons for the fairness doctrine was that the number of available broadcasting sites was scarce because of a limited number of broadcasting frequencies. Cable TV greatly increased the number of available broadcasting sites. Satellite radio uses audio compression so that several different radio programs can be broadcast simultaneously over the same frequency, and this also greatly increases the number of broadcasting sites (of course, you need a special receiver for satellite radio). However, I feel that there has been too much emphasis on this issue of scarcity/abundance of available broadcasting sites. Telling political candidates who are denied an opportunity to rebut a broadcast attack ad that they are free to start their own broadcasting sites is a "let them eat cake" argument (the same applies to blogs).

Eugene Volokh said (7.28.2007 10:51am) --
Hunter: The Fairness Doctrine did apply to broadcast TV; I take it that, if it were reinstituted, it would apply to broadcast TV again. It probably cannot apply to cable because the Supreme Court has held that cable is generally fully protected by the First Amendment, rather than being entitled to the lesser protection given to broadcasting. See Turner Broadcasting v. FCC (1994).

??? In Turmer Broadcasting v. FCC, the Supreme court actually denied First Amendment protection to cable TV. A summary of the case says:

Facts of the Case

In 1992, Congress passed the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 of this Act required cable systems to allocate a percentage of their channels to local public broadcast stations, the must-carry rules. . . .

Question

Are the must-carry rules content-based and thus a violation of the cable companies' First Amendment right to free speech?

Conclusion

No. The Court held that the must-carry provisions were content neutral, thus not a violation of the First Amendment.


The courts might rule differently where the cable TV content in question is not content-neutral.

hunte said (7.28.2007 2:59pm) --
Larry,
You assert that the "fairness doctrine" is not about censorship. It is obviously about censorship. It imposes sanctions on broadcasters - fines or even the loss of their license- for either broadcasting or not broadcasting something a third party using government power approves.


Telling a broadcasting company what it cannot broadcast is censorship. Telling what a broadcasting company what it must broadcast -- which is what a fairness doctrine does -- is not censorship (except in the sense that there is a reduction in the time available for what the company wants to broadcast, but that is not really censorship because the company can just broadcast less of the same stuff). .

Anyway, as I said, I am against a general fairness doctrine for broadcasters -- I am only in favor of restoration of the "political editorial" and "personal attack" rules.
7.28.2007 6:27pm
TheRadicalModerate (mail) (www):
Barbara--

Are you arguing that debate has not become more extreme/polarized in the past, say, 15 years? That the amount of common ground claimed by opponents has not been shrinking?

OK, I'll concede that there's no decent arbiter of extremism. That doesn't mean the problem doesn't exist, nor that it's not getting worse. The trick (and it will be quite a trick, I admit) is to find some sort of natural system that pushes most debates toward somewhere in the center, rather than the edges.

That said, I have no idea what the solution to the problem is, other than that it ain't the FD.
7.28.2007 6:43pm
Michelle Dulak Thomson (mail):
Larry Fafarman,

[F]or the following reasons, I am strongly in favor of an Internet fairness doctrine that would prohibit arbitrary censorship of visitors' comments on blogs:

(1) Comment space on blogs is virtually unlimited, so there would be no burden on bloggers.


Hmmm. What about popular blogs with no comments (e.g., InstaPundit)? Or blogs such as this one in which not every article has a comment thread attached? Would you make comment sections mandatory for blogs?

And what about print journals and newspapers with an online presence? Oughtn't they to have a parallel affirmative duty to publish every e-mail to the editor they receive? If, as you say, this imposes "no burden," space being so cheap?

(2) The more popular blogs (e.g., The Volokh Conspiracy) have become major de facto public forums.

But comment sections like this one are "popular" — have attracted a lively, participating readership — in part because a certain kind of discussion is expected here, yes?

I suppose much depends on what you mean by "arbitrary censorship." The blog comment sections I know are either completely unregulated, or else regulated in the manner of this one — i.e., uncivil, abusive, and wildly disruptive or off-topic comments can be removed by the blog owner(s), and repeat offenders banned. These don't seem to me "arbitrary" restrictions (more "time, place, &manner"?), but perhaps they do seem so to you.

(Or did you mean something more heavy-handed, like deleting any comments taking issue with a post? I don't know of any bloggers that do that. Sounds like a recipe for a very dull comment section.)

(3) Blogs are being authoritatively cited by court opinions, scholarly journal articles, etc., making fairness and accuracy of vital importance.

Not sure what you mean by "authoritatively cited." I would've thought that the primary criterion for "citability" would be not whether something was "fair" or "accurate" but whether it had been published. There's a form of citation for material on blogs because material on blogs is publicly available, period. I would assume that if an opinion cited an argument on VC, say, it would be not because VC is Authoritative per se, but because the argument was useful to the writer and (unlike, say, a private communication from Eugene) readily available to the reader.
7.28.2007 9:10pm
hunter:
Larry Farfman,
Requiring a medium to carry something to the standard set by the government is censorship. Censorship is not just flensing content. It is imposing content. I submit that in the days of the so-called 'fairness doctrine', the public square was not free. It was anemic and oligarchic.
The other argument I see here, that somehow people are 'too extreme' and so the government is justified in censoring media that happens to use the airwaves, is simply an argument from the 'philospher king' school of public discourse - that the poor plebes, inflamed and ignorant, need the self declared wise ones to quiet their ignorant heated blood.
No thanks to either.
Ask this: If the Fairness doctrine is so good on media that is broadcast, whynot apply it to print? After all, the capital costs of establishing a large newspaper is terribly high. Additionally, in nearly every market, there is a very limited number of newspaper outlets - it is in fact nearly exactly the situation of broadcast media in years past.
Is not the public good of only having one newspaper in most markets inherently unfair?
If 'fairness doctrine' should be applied in radio, where nearly every market has many radio outlets, should it not apply even more to markets served by only one newspaper?
If a fig leaf is needed to justify censoring newspapers, one can say that since newspapers sell advertising, they are actually engaged in commercial activities, use public roads, and by not ocvering issues 'fairly' are discrimenating against those whose side their editorial policies ignore or belittle.
That is about the same argument for re-imposing censorship in broadcast media, and what is good for goose is good for gander. Or rather, what is good for the Fox is good for the Gray Lady.
7.28.2007 10:18pm
Barbara Skolaut (mail):
RM - Of course it's become ridiculously extremist (or maybe politically oriented people have just become more honest about their beliefs), and we are the worse for it.

I don't know the answer either, though I agree it's not the Unfairness Doctrine.

Perhaps we need to consider why political debate (and I use the term loosely) has become so polarized and extreme. Obviously the various politically extremist groups think it's benefiting them (and their candidates), but is it really? If it is, what does that say about the American voter? If it isn't (and it didn't, in Lieberman's case), why do they keep espousing their far-out beliefs? And do we really want the extremist clowns to hide their beliefs and ideas behind a moderate facade, or hang them out there for all the voters to see?

The more questions we ask about this, the more questions there are.
7.28.2007 10:22pm
Dogwood (www):
FUB,

Internet radio stations featuring copyrighted music are, in fact, quite affordable and easy to setup. The royalty payments are based on listener hours. Monthly expenses run from a couple hundred to a couple thousand dollars per month. The bigger the audience, the bigger the payments.

Check out the info at www.live365.com for more details. Its amazing how easy it really is.
7.28.2007 10:52pm
David M. Nieporent (www):
The old "Fairness Doctrine," for what it's worth, worked Eugene.
It "worked" if one's goal was to keep all non-MSM views off the airwaves. It's no accident that the proliferation of political talk radio happened when the Fairness Doctrine was abandoned. And it's no accident that the people who want to reinstate it are primarily liberal politicians.
The reality is that there should be a requirement that someone using the public airways be required to adhere to a standard that serves the public interest. The radiofrequency spectrum belongs to the public, whether they are conservative, liberal, liberatarian or authoritative. Therefore, use of the spectrum must benefit the public as a unified whole, not just a certain subset of them.
In what way does the spectrum "belong to the public," except in sloganeering? Did the public invent it? Did the public construct it? Did the public build the transmitters that are being used? How does the spectrum "belong to the public" any more than any other property does? Does your house belong to the public? Do you need to serve the public interest to be allowed to live there?

I'm not accusing you of making up the concept, but I am accusing you of simply parroting it as though it were something other than a bald-faced assertion.
7.28.2007 11:09pm
Larry Fafarman (mail) (www):
Michelle Dulak Thomson said (7.28.2007 8:10pm) --
"(1) Comment space on blogs is virtually unlimited, so there would be no burden on bloggers."

Hmmm. What about popular blogs with no comments (e.g., InstaPundit)? Or blogs such as this one in which not every article has a comment thread attached? Would you make comment sections mandatory for blogs?


Either all reasonable comments (i.e., comments that are on-topic, polite, and serious) should be accepted, or none should be. There should not be any discrimination.

And what about print journals and newspapers with an online presence? Oughtn't they to have a parallel affirmative duty to publish every e-mail to the editor they receive?

They don't normally publish emails online. The amount of space available for publishing emails and postal letters in a newspaper or print journal is limited.

"(2) The more popular blogs (e.g., The Volokh Conspiracy) have become major de facto public forums. "

But comment sections like this one are "popular" — have attracted a lively, participating readership — in part because a certain kind of discussion is expected here, yes?


What does that have to do with arbitrary censorship of blog visitors' comments?

The blog comment sections I know are either completely unregulated, or else regulated in the manner of this one — i.e., uncivil, abusive, and wildly disruptive or off-topic comments can be removed by the blog owner(s), and repeat offenders banned.

I have seen plenty of blogs where comments are censored for the following reasons: (1) the blogger disagrees with the comment; (2) the comment is contrary to a point that the blogger is trying to make; or (3) the blogger dislikes the commenter or suspected commenter.

Commenters should never be banned -- each comment should be accepted on a case-by-case basis. Also, bans are often ineffective and can block comments from other visitors who share the same ISP proxy IP address.

Or did you mean something more heavy-handed, like deleting any comments taking issue with a post? I don't know of any bloggers that do that.

I know lots of bloggers who do that. You're very naive if you think it doesn't happen often. In fact, Eugene Volokh himself told me in private emails that he is in favor of allowing arbitrary censorship of visitors' comments on blogs.

Not sure what you mean by "authoritatively cited." I would've thought that the primary criterion for "citability" would be not whether something was "fair" or "accurate" but whether it had been published.

Being "published" (I presume you mean printed) means nothing -- a lot of garbage is printed.

Blogs have become popular as authoritative sources because they are supposed to be fair (presenting a variety of viewpoints) and reliable because they have a large number of contributors as commenters. However, this faith in blogs can backfire when there is arbitrary censorship of comments.

A report of about a year ago listed 489 citations of law blogs in law journal articles, including 62 citations of Volokh Conspiracy alone. Law blogs are even being cited in court opinions -- Volokh Conspiracy has two such citations listed.

The irony here is that one of the biggest arguments against a fairness doctrine for broadcasters is that people supposedly have so many other places where they can express their views, especially the Internet. That's just a let-them-eat-cake argument, because when people try to express themselves on Internet blogs, they often get arbitrarily censored.
7.28.2007 11:56pm
David M. Nieporent (www):
Larry, I initially thought you were engaged in satire with your proposal of a "Fairness Doctrine for bloggers," but having viewed the link you pointed to on your site, I think you're serious. The basic problem with your position is a complete misunderstanding of the free speech provision of the First Amendment.

It applies to state action ("Congress shall make no law..."), not the actions of private parties. A blogger who "arbitrarily censors" you is not violating your free speech rights. You don't have constitutional free speech rights vis-a-vis a private individual. The First Amendment is a protection against government censorship, not an affirmative right to speak and be heard whenever and whereever you want.
7.29.2007 12:48am
Michelle Dulak Thomson (mail):
Larry Fafarman,

[Print journals and newspapers with an online presence] don't normally publish emails online.

I know they don't. My point was that, since they are online, and (or so you argue) the cost to an online publication of allowing unlimited, unregulated public commentary on a site is nil, your argument strongly suggests that they ought to. Why limit your proposal to online publications that have no print version?

I know lots of bloggers who do that ["delete any comments taking issue with a post"]. You're very naive if you think it doesn't happen often. In fact, Eugene Volokh himself told me in private emails that he is in favor of allowing arbitrary censorship of visitors' comments on blogs.

Well, either I am "very naive," or I'm reading all the wrong (er, right?) blogs, because I've yet to see a reasonably high-traffic political blog in which none of the comments took issue with any of the posts.

As for EV, if what he said was that it ought not to be illegal to delete a comment from one's own blog for whatever reason, I'd have to agree with him.

By "published" I did not mean "printed." I meant "put out in public where people can read it." (I'm a longtime writer for an online-only publication.)

Blogs have become popular as authoritative sources because they are supposed to be fair (presenting a variety of viewpoints) and reliable because they have a large number of contributors as commenters. However, this faith in blogs can backfire when there is arbitrary censorship of comments.

I find it difficult to believe that the reason blogs are turning up as referenced material in law review articles, &c., is because they're supposed to be "fair and reliable." Surely the main reason is that a lot of legal scholars are using lawblogs as a way of doing their thinking out loud, as it were. Ideas get tossed around &tried out on the legal readership without the necessity of making them into fully-fledged articles first.

Comments may be valuable to the blogger in refining an idea, obviously — but that's true whether the rest of the public sees the comments or not, yes? And what's being cited, I presume, is what the blogger posted, not the responses to it (though do correct me if I'm wrong here).

The irony here is that one of the biggest arguments against a fairness doctrine for broadcasters is that people supposedly have so many other places where they can express their views, especially the Internet. That's just a let-them-eat-cake argument, because when people try to express themselves on Internet blogs, they often get arbitrarily censored.

I am curious what views you find being arbitrarily censored, and by whom. Seriously. I ask because everywhere I look, both here and on the other law- &politics-related blogs I know, I find comment threads full of vigorous disagreement with the author of the thread-heading post. Just a fluke?

Also, I find it quite impossible to imagine a comment critical of a particular blog post that would be censored anywhere you tried to put it. Even if the blog whose post you're disagreeing with has no comments at all, you can always, for instance, attack it in the comments section of another blog.

I drop in on Kevin Drum's "Political Animal" every so often, and the comments are peppered with rants about this or that item on Instapundit. I see the same thing in other high-traffic, unregulated-comment blogs. Whatever it is, you can always find a place to say it where lots of other people will read it.
7.29.2007 12:56am
Larry Fafarman (mail) (www):
Hunter said (7.28.2007 9:18pm) --
Larry Farfman,
Requiring a medium to carry something to the standard set by the government is censorship Censorship is not just flensing content. It is imposing content.


You are just making up your own definition of "censorship."

Ask this: If the Fairness doctrine is so good on media that is broadcast, why not apply it to print? After all, the capital costs of establishing a large newspaper is terribly high. Additionally, in nearly every market, there is a very limited number of newspaper outlets - it is in fact nearly exactly the situation of broadcast media in years past.

As I noted, the US Supreme Court decision of Miami Herald v. Tornillo (1974) struck down as unconstitutional a Florida "Right to Reply" law for newspapers that was a very mild form of fairness doctrine -- this law just gave candidates in public elections equal space to respond to criticisms against them. I think that it was a very bad decision -- it is discussed as item #8 in this article on my blog.

Anyway, as I said, I am opposed to a general fairness doctrine for broadcasters and newspapers but I am in favor of a general fairness doctrine for comment threads in blogs and other Internet forums.
7.29.2007 2:25am
Larry Fafarman (mail) (www):
David M. Nieporent said (7.28.2007 11:48pm) --
Larry, I initially thought you were engaged in satire with your proposal of a "Fairness Doctrine for bloggers," but having viewed the link you pointed to on your site, I think you're serious. The basic problem with your position is a complete misunderstanding of the free speech provision of the First Amendment.

It applies to state action ("Congress shall make no law..."), not the actions of private parties.


Yes, I am quite serious, but no, I don't misunderstand anything. We can have a "fairness doctrine" law for bloggers (i.e., a prohibition against arbitrary censorship of visitors' comments) without it being a First Amendment requirement, and furthermore I assert that such a law would not violate the First Amendment. I think that such a law is needed because (1) the more popular blogs have become major de facto public forums and (2) blogs are being authoritatively cited by court opinions, scholarly journal articles, etc..
7.29.2007 3:13am
hunter:
Larry Farfman,
Perhpas you would like to check out who else is just making up definitions of 'censorship'

It is clear that forcing someone top print something is simply the obverse of censorship - it is still the coercive interference in speech.
As to your desire for censorship on the internet - why? It would be much easier to simply wait until a USSC more anti-freedom than this one is in power and revisit the issue of the 1st Amendment. I would not be surprised that with the terrible precedents we have set with regard to campaign finance, the suppression of free expression of religion, and the acceptance of speech codes on publicly financed universities, to see a USSC simply allow regulation of all media for content.
But I would rather fight it everyinch of the way.
I see no reason for any media to be more or less regulated.
7.29.2007 3:13am
David M. Nieporent (www):
Yes, I am quite serious, but no, I don't misunderstand anything.
Yes, you do. You state in your essay, "The First Amendment actually contains two freedom-of-expression clauses: (1) a "freedom-of-speech" right for individuals and (2) a "freedom-of-the-press" right for the media (though blogs often just represent individuals, blogs are often classified as belonging to the "media" for purposes of the First Amendment). I assert that there must be a truly compelling reason to infringe on one of these two rights for the purpose of protecting the other,"

But what you call "arbitrary censorship" of comments doesn't infringe on one of these two rights, because a blogger is not the government.

Such a law as you propose would indeed violate the first amendment. What you fail to understand is that Red Lion was an exception to the general rule, and that exception was based on the allegedly unique characteristics of the airwaves.

Neither of your proposed justifications have anything to do with the price of tea in China. Whether they're "public forums" or not -- and they're certainly not -- has nothing to do with whether a private individual has to let you use his personal blog to promote your views. The "public forum" doctrine applies to the government.

And whether they're 'cited' is completely irrelevant to everything. (They're not cited because of the comments, anyway.) Scholars quotes newspaper articles, too.
7.29.2007 4:54am
Larry Fafarman (mail) (www):
Michelle Dulak Thomson said ( 7.28.2007 11:56pm ) --

"[Print journals and newspapers with an online presence] don't normally publish emails online. "

I know they don't. My point was that, since they are online, and (or so you argue) the cost to an online publication of allowing unlimited, unregulated public commentary on a site is nil, your argument strongly suggests that they ought to. Why limit your proposal to online publications that have no print version?


Two reasons --

(1) Publishing no comments at all online is not discriminatory.

(2) Publishing random emails online is quite a bit different from having an orderly comment thread, where there is an orderly discussion and development of ideas.

I find it difficult to believe that the reason blogs are turning up as referenced material in law review articles, &c., is because they're supposed to be "fair and reliable." Surely the main reason is that a lot of legal scholars are using lawblogs as a way of doing their thinking out loud, as it were. Ideas get tossed around &tried out on the legal readership without the necessity of making them into fully-fledged articles first.

You got it -- "Ideas get tossed around &tried out on the legal readership." Do you think that the comments here have not enhanced the fairness, accuracy, and general overall value of the original blog article? Do you think that the value of this blog article and its comment thread would not be diminished by the censorship of some important comments here? If you were writing a court opinion or a law journal article, would you want to authoritatively cite this blog article and its comment thread if you knew that some very important comments were censored here?

Comments may be valuable to the blogger in refining an idea, obviously — but that's true whether the rest of the public sees the comments or not, yes?

No. The original blog posts are usually not rewritten in response to the comments unless a serious error is discovered -- and sometimes not even then. The original blog post is certainly not going to be rewritten to be consistent with a censored comment.

And what's being cited, I presume, is what the blogger posted, not the responses to it (though do correct me if I'm wrong here).

OK, I will correct you here. In a list of 32 court opinions' citations of blogs, 12 of the citations were designated as "citation to commentary on blog " and five were designated as "citation to blog generally." There is no reason to not cite comments where appropriate. What if an important court opinion made a serious error because an important comment was censored?

I am curious what views you find being arbitrarily censored, and by whom.

I don't want to unnecessarily clutter up this comment thread with long stories.

Seriously. I ask because everywhere I look, both here and on the other law- &politics-related blogs I know, I find comment threads full of vigorous disagreement with the author of the thread-heading post.

Just because you haven't seen arbitrary censorship of blog visitors' comments doesn't mean that it doesn't happen. There was a recent story that someone traveled 1300 miles to burn down the house of an Internet rival, and you don't believe that some bloggers take advantage of their power to arbitrarily censor comments?

Also, I find it quite impossible to imagine a comment critical of a particular blog post that would be censored anywhere you tried to put it.

That is a "let them eat cake" argument. Placing the comment elsewhere cannot undo the damage resulting from censorship of the comment where it was originally placed. And if your comments in this thread were censored, where would you put them where you think they would have the same or a similar effect?
7.29.2007 6:39am
Larry Fafarman (mail) (www):
David M. Nieporent said ( 7.29.2007 3:54am ) --
But what you call "arbitrary censorship" of comments doesn't infringe on one of these two rights, because a blogger is not the government.

If we want to be literal enough in interpreting the First Amendment, we can say that it applies only to Congress and that it doesn't apply to the president, the courts, the states, local governments, etc..

The First Amendment does not give private entities a license to violate the spirit of its provisions. Anyway, as I said, a fairness doctrine for blogs -- just like a fairness doctrine for broadcasters -- does not need to be based on the First Amendment; it only needs to not be in violation of the First Amendment.

Such a law as you propose would indeed violate the first amendment. What you fail to understand is that Red Lion was an exception to the general rule, and that exception was based on the allegedly unique characteristics of the airwaves.

And my proposed exception to the general rule is based on the following unique or special characteristics of blogs --

(1)The virtually unlimited space for comments means that there is no need to pick and choose comments for posting.
(2) The more popular blogs have become major de facto public forums.
(3) Blogs are being authoritatively cited by court opinions, scholarly journal articles, etc., making fairness and accuracy of vital importance.

Whether they're "public forums" or not -- and they're certainly not -- has nothing to do with whether a private individual has to let you use his personal blog to promote your views.

As I said -- Roe v. Wade notwithstanding, there is no such thing as a right to privacy. If they find you storing kiddie porn in the "privacy" of your own home, they throw you in jail. An environmental law can virtually confiscate "private" land.

And whether they're 'cited' is completely irrelevant to everything.

No, it is not irrelevant -- authoritative citation means that they should meet particularly high standards of fairness and accuracy. Censorship of important comments destroys fairness and/or accuracy.

(They're not cited because of the comments, anyway.)

In 32 court opinions' citations of blogs, 12 of the citations were classified as "citation to commentary on blog." See my preceding comment.
7.29.2007 7:51am
David M. Nieporent (www):
OK, I will correct you here. In a list of 32 court opinions' citations of blogs, 12 of the citations were designated as "citation to commentary on blog " and five were designated as "citation to blog generally." There is no reason to not cite comments where appropriate. What if an important court opinion made a serious error because an important comment was censored?
"Commentary" does not mean "comments." A court decision cannot make an "error" because a comment was censored, because publications are not cited for precedential value.

Do you think that the comments here have not enhanced the fairness, accuracy, and general overall value of the original blog article? Do you think that the value of this blog article and its comment thread would not be diminished by the censorship of some important comments here? If you were writing a court opinion or a law journal article, would you want to authoritatively cite this blog article and its comment thread if you knew that some very important comments were censored here?
In order: no, no, and I don't know what "authoritatively cite" means, but if we strike the word "authoritatively," then yes.

That is a "let them eat cake" argument. Placing the comment elsewhere cannot undo the damage resulting from censorship of the comment where it was originally placed.
There is no "damage" resulting. The fact that you didn't have as big an audience as you wanted is not legally-cognizable "damage."
7.29.2007 7:54am
Larry Fafarman (mail) (www):
hunter said (7.29.2007 2:13am) --

Larry Farfman,
Perhpas you would like to check out who else is just making up definitions of 'censorship'


It's certainly not me.

It is clear that forcing someone top print something is simply the obverse of censorship -- it is still the coercive interference in speech.

I don't think that many opponents of a general fairness doctrine for broadcasting openly state that their reason for opposing the doctrine is that they want unbalanced one-sided presentations of controversial issues. I think that one of the main arguments against the doctrine is that it could greatly reduce the time available for broadcasting what the broadcaster wants to broadcast. That reduction in time is one of my main reasons for opposing a general fairness doctrine for broadcasters. Also, broadcasters' revenues could be reduced if the broadcasters are required to provide free air time for presentation of opposing views. Also, if a broadcaster is required to carry both "liberal" and "conservative" shows, then which shows would get the free air time? As I said, I think that a fairness doctrine for broadcasters would be a regulatory nightmare.

As to your desire for censorship on the internet - why?

??? I said that I am opposed to censorship on the Internet. I mean the accepted definition of censorship -- not your definition.
7.29.2007 11:29am
Larry Fafarman (mail) (www):
David M. Nieporent said ( 7.29.2007 6:54am ) --
In a list of 32 court opinions' citations of blogs, 12 of the citations were designated as "citation to commentary on blog "

"Commentary" does not mean "comments."


What else could "commentary" mean in this context? Other citations are designated as "citation to blog generally" and "citation to article on blog." What do those things mean?

And what about last year's report of 489 citations of law blogs in law journal articles? Were visitors' comments never cited in any of those citations?

Where is the prohibition against citing blog visitors' comments? What is to prevent judges, attorneys, and others from reading those comments and being influenced by them?

You are really grasping at straws here.

A court decision cannot make an "error" because a comment was censored, because publications are not cited for precedential value.

Court opinions and briefs often cite nonbinding authorities to support a decision or arguments. The nonbinding authorities can be the decisions of other court systems (even foreign courts), unpublished opinions, law journal articles (thousands of these articles have been cited by court opinions over the years), and now Internet sources, e.g., blogs and Wikipedia. Though these authorities are not binding, it is quite conceivable that the influence of one of these authorities could be a deciding factor in a decision.

"Do you think that the comments here have not enhanced the fairness, accuracy, and general overall value of the original blog article? Do you think that the value of this blog article and its comment thread would not be diminished by the censorship of some important comments here? If you were writing a court opinion or a law journal article, would you want to authoritatively cite this blog article and its comment thread if you knew that some very important comments were censored here?"

In order: no, no, and I don't know what "authoritatively cite" means, but if we strike the word "authoritatively," then yes.


You said that you initially thought that I was engaging in satire, but you are the one who is obviously engaging in satire here. If you don't think that you are contributing or trying to contribute to the comment thread here, then why do you even bother to post comments here?

"That is a "let them eat cake" argument. Placing the comment elsewhere cannot undo the damage resulting from censorship of the comment where it was originally placed."

There is no "damage" resulting. The fact that you didn't have as big an audience as you wanted is not legally-cognizable "damage."


So the plaintiff in Red Lion v. FCC was not harmed by not being given the opportunity to make his rebuttal over the radio. He could have just made his rebuttal from the top of a soapbox -- literally.

Among other things, arbitrary censorship of blog visitors' comments is rude, unscholarly, and anti-intellectual. I don't see how blogs that practice it are considered to have any credibility at all.
7.29.2007 2:10pm
Michelle Dulak Thomson (mail):
Larry Fafarman,

You [David Nieporent] said that you initially thought that I was engaging in satire, but you are the one who is obviously engaging in satire here. If you don't think that you are contributing or trying to contribute to the comment thread here, then why do you even bother to post comments here?

Ummm . . . I think you are misreading either your own prior questions or David's answers. To my eye, "no" to "Do you think that the comments here have not enhanced the fairness, accuracy, and general overall value of the original blog article?" means "I think the comments here have enhanced the fairness, accuracy, and general overall value of the original blog article." Similarly to the second question. Yes?
7.29.2007 2:41pm
Larry Fafarman (mail) (www):
Michelle Dulak Thomson said,
I think you are misreading either your own prior questions or David's answers.

If his answers to the first two questions mean what you think they mean, then those answers support my position.

And what about his answer to my third question --

"If you were writing a court opinion or a law journal article, would you want to authoritatively cite this blog article and its comment thread if you knew that some very important comments were censored here?"

. . .I don't know what "authoritatively cite" means, but if we strike the word "authoritatively," then yes.


No ambiguity there.
7.29.2007 3:51pm
Smokey:
Requiring a medium to carry something to the standard set by the government is censorship.

Absolutely agree.


And re Larry Fafarman:
''...I am in favor of a general fairness doctrine for comment threads in blogs and other Internet forums.''
That is the one place that forced opposing opinions are not needed, because dissenters can post their opinions. [Of course, the DailyKos, DU, and other far left blogs will not allow opposing opinions, but the blogs are their property and the blog owners set the rules]. Anyone can start their own blog, and set their own rules.

Since individuals and organizations are free to buy their own a.m. radio stations [like Air America did], then they are not precluded by the government or anyone else from broadcasting their opinions.

But the radical left wants the government to force station owners to carry their point of view, thereby getting all of the advantages without taking any of the financial risk.

The result of the Fairness Doctrine is the same as if the government forced you to let a stranger live in your house. Hey, you have an extra bedroom, so why should you care? People have a right to live somewhere, and you have that big, roomy house.

How is forcing a private business to allow in unwanted strangers in, any different in principle from being forced to quarter soldiers in your house?

Do we still have a Constitution?? Or just emanations from its living, breathing penumbra?
7.29.2007 4:43pm
David M. Nieporent (www):
What else could "commentary" mean in this context? Other citations are designated as "citation to blog generally" and "citation to article on blog." What do those things mean?
What commentary "could" mean is the commentary by the blog author. What commentary does mean -- as you could see if you actually looked up the citations provided at the blog in question (as I did) -- is the commentary by the blog author.
7.29.2007 4:56pm
David M. Nieporent (www):
So the plaintiff in Red Lion v. FCC was not harmed by not being given the opportunity to make his rebuttal over the radio. He could have just made his rebuttal from the top of a soapbox -- literally.
Well, he could have. (Although, to be clear, the "plaintiff in Red Lion v. FCC" was actually Red Lion, which was suing to overturn the Doctrine. The person you refer to -- Fred Cook -- was not a party to the case.)

1) The general rule is that nobody has to provide a soapbox to other people. The Miami Herald case you don't like is the general rule. Red Lion is the exception, not the rule. It turned on the allegedly-unique characteristics of broadcasting. Those characteristics do not apply to newspapers and certainly do not apply to the web. If spectrum were unlimited -- as it is on the internet -- Red Lion would have come out the other way.

Further, the decision turned on the fact that the station didn't own the spectrum, but merely had a license from the government to use it. That also does not apply to a website on the internet; one's use of a particular server is not a mere privilege granted by the government.

2) The decision in Red Lion did not turn on any damages suffered by Fred Cook or any rights possessed by Fred Cook. The Court did not hold -- as you treat it -- that Cook had the first amendment right to reply to the broadcast in question. The question the court determined was (besides whether the FCC had the statutory authority to adopt the Fairness Doctrine) whether it violated Red Lion's first amendment rights to require it.
7.29.2007 5:25pm
Smokey:
Requiring a medium to carry something to the standard set by the government is censorship.

Absolutely agree.


And re Larry Fafarman:
''...I am in favor of a general fairness doctrine for comment threads in blogs and other Internet forums.''
That is the one place that forced opposing opinions are not needed, because dissenters can post their opinions. [Of course, the DailyKos, DU, and other far left blogs will not allow opposing opinions, but the blogs are their property and the blog owners set the rules]. Anyone can start their own blog, and set their own rules.

Since individuals and organizations are free to buy their own a.m. radio stations [like Air America did], then they are not precluded by the government or anyone else from broadcasting their opinions.

But the radical left wants the government to force station owners to carry their point of view, thereby getting all of the advantages without taking any of the financial risk.

The result of the Fairness Doctrine is the same as if the government forced you to let a stranger live in your house. Hey, you have an extra bedroom, so why should you care? People have a right to live somewhere, and you have that big, roomy house.

How is forcing a private business to allow in unwanted strangers any different in principle from being forced to quarter soldiers in your house?
7.29.2007 5:56pm
Smokey:
Sorry about the double post. My misteak.
7.29.2007 6:01pm
Larry Fafarman (mail) (www):
David M. Nieporent (7.29.2007 3:56pm) --
What commentary "could" mean is the commentary by the blog author.

Then what do "citation to blog generally" and "citation to article on blog" mean? It is all very ambiguous.

What commentary does mean -- as you could see if you actually looked up the citations provided at the blog in question (as I did) -- is the commentary by the blog author.

The links to the actual citations are not on the webpage that I linked to but are on another webpage. And I would have to examine the citations one-by-one.

You still haven't answered my questions -- (1) What is there to prevent authoritative citations of visitors' comments on blogs and (2) what is there to prevent people from reading the visitors' comments on authoritatively cited blogs.

David M. Nieporent said (7.29.2007 4:25pm) --
The person you refer to -- Fred Cook -- was not a party to the case.

Well, he was still sort of a plaintiff -- he complained to an administrative agency, the FCC, instead of a court.

The general rule is that nobody has to provide a soapbox to other people. The Miami Herald case you don't like is the general rule.

The Florida Supreme Court did not think that is the general rule. In the Miami Herald case, Florida's "Right to Reply" law for newspapers was upheld by the Florida Supreme Court, then was struck down by the US Supreme Court. The syllabus of the Miami Herald case says,

The Circuit Court held the statute unconstitutional as infringing on the freedom of the press, and dismissed the action. The Florida Supreme Court reversed, holding that the statute did not violate constitutional guarantees, and that civil remedies, including damages, were available, and remanded to the trial court for further proceedings.(emphasis added)

David M. Nieporent said,
Red Lion is the exception, not the rule. It turned on the allegedly-unique characteristics of broadcasting. Those characteristics do not apply to newspapers and certainly do not apply to the web.

Wrong -- those characteristics do apply to newspapers. Both broadcasting and newspapers have a scarcity of media outlets -- in broadcasting the scarcity is due to limited numbers of broadcast frequencies (cable TV and satellite radio have reduced these scarcities) and the scarcity of newspapers results from the great expense of establishing a newspaper. Another similarity: broadcasting has limited time, newspapers have limited space. A webpage of "Exploring Constitutional Conflicts" says,

It is interesting to contrast Red Lion with the Court's decision in Miami Herald v Tornillo, just five years later. . . . Despite the similarity of the question to that presented in Red Lion -- and the fact that Red Lion was the case most discussed in briefs for both parties -- the Court never even so much as mentioned Red Lion in a footnote! (emphasis added)

If spectrum were unlimited -- as it is on the internet -- Red Lion would have come out the other way.

You are really jumping to conclusions here. The courts consider many factors in deciding cases. A court could very well decide that because comment space on blogs is virtually unlimited, a fairness doctrine for blogs would not impose any significant burden on bloggers and is therefore constitutional.

Further, the decision turned on the fact that the station didn't own the spectrum, but merely had a license from the government to use it.

Miami Herald Publishing Co. owned all of the production and distribution facilities for the newspaper, yet the Florida Supreme Court ruled in Tornillo v. Miami Herald that the Florida "Right to Reply" law was constitutional (as noted above, the law was later struck down by the US Supreme Court).

The decision in Red Lion did not turn on any damages suffered by Fred Cook or any rights possessed by Fred Cook. The Court did not hold -- as you treat it -- that Cook had the first amendment right to reply to the broadcast in question.

No, I did not treat Red Lion that way -- you are putting words into my mouth.

Also, one more thing -- it is noteworthy that the Red Lion decision applies only to the two corollary rules described in my comment of 7.28.2007 5:24am -- the "political editorial rule" and the "personal attack rule" -- and not to the fairness doctrine generally. The Supreme Court said in Red Lion,

We need not and do not now ratify every past and future decision by the FCC with regard to programming . . . . . But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials.
7.29.2007 7:56pm
Larry Fafarman (mail) (www):
Smokey said (7.29.2007 4:56pm) --
"Requiring a medium to carry something to the standard set by the government is censorship."

Absolutely agree.


Absolutely disagree. By definition, that is not censorship.

Anyone can start their own blog, and set their own rules.

As I said before, that is just a "let them eat cake" argument. The opportunity to start your own blog is not adequate compensation for being arbitrarily censored on a popular blog.

Since individuals and organizations are free to buy their own a.m. radio stations [like Air America did], then they are not precluded by the government or anyone else from broadcasting their opinions.

In the past, the availability of broadcasting channels was very low because of the limited number of broadcasting frequencies. That scarcity has been eased by cable TV and satellite radio, but there is still the problem that the opportunity to start your own broadcasting channel is not adequate compensation for denial of an opportunity to make an on-site rebuttal of a personal attack or political editorial -- that is why I am in favor of restoration of the "personal attack" and "political editorial" rules, though I am against a full fairness doctrine.

But the radical left wants the government to force station owners to carry their point of view, thereby getting all of the advantages without taking any of the financial risk.

The problem I see is this --

Suppose that a fairness doctrine is in effect and a broadcaster has only "conservative" talk shows and so is required to add "liberal" talk shows. The broadcaster may have to offer free air time for liberal talk shows because the liberals cannot be forced to pay for the time. Then the conservative talk show hosts are going to argue that the liberals ought to pay for air time and that the conservatives should get the free air time.

The result of the Fairness Doctrine is the same as if the government forced you to let a stranger live in your house. Hey, you have an extra bedroom, so why should you care? People have a right to live somewhere, and you have that big, roomy house.

Well, the government has required housing developers to provide a certain percentage of low-income housing. Like you say, people have a right to live somewhere.
7.29.2007 10:30pm
David M. Nieporent (www):
You still haven't answered my questions -- (1) What is there to prevent authoritative citations of visitors' comments on blogs and (2) what is there to prevent people from reading the visitors' comments on authoritatively cited blogs.
I still don't know what you mean by "authoritative citation," but nothing prevents a court from citing a visitor's comment, any more than something prevents a court from citing a conversation the judge had with his cab driver on the way to the airport.

The Florida Supreme Court did not think that is the general rule.
I don't know why you keep harping on this; the Florida Supreme Court doesn't get to authoritatively (a proper use of the term!) interpret the U.S. Constitution. The Florida Supreme Court was mistaken.

Wrong -- those characteristics do apply to newspapers.
They do not. Newsprint is essentially unlimited. The issue the court considered was whether the medium was limited, not whether time on a particular station was. You can't start your own station; you can start your own newspaper.

You are really jumping to conclusions here. The courts consider many factors in deciding cases. A court could very well decide that because comment space on blogs is virtually unlimited, a fairness doctrine for blogs would not impose any significant burden on bloggers and is therefore constitutional.
I am not jumping to conclusions; I am reading the case law, rather than a one paragraph summary for lay people on a website. Miami Herald explicitly rejected the notion that lack of a "burden" was sufficient to save the statute in question, because it interfered with the paper's first amendment right to editorial control.

The Court did not hold -- as you treat it -- that Cook had the first amendment right to reply to the broadcast in question.

No, I did not treat Red Lion that way -- you are putting words into my mouth.
You did treat it that way. Not only do you continually focus on harm to the person whose comments aren't published, but the piece on your blog says:

* "2) First Amendment requires fairness doctrine for blogs" [Emphasis added.]
* "there must be a truly compelling reason to infringe on one of these two rights "
* "The cardinal rule is that constitutional protections may be denied only for truly compelling reasons."
7.29.2007 11:37pm
hunter:
Smokey,
I think you get it. To impose any kind of restriction at all on bloggers is an odd idea. Blogs are private property, completely open to anyone with an internet connection, and are prolific.
The spin used to deny that government imposition of content rules on speech is not censorship avoids dealing with some totally plain text:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The plain text of the Constitution does not differentiate between censorship that cuts out content or censorship by way of forcing content. It simply prohibits, in the wisdom of our FFs, its being done. Period.
The fact that a Congress imposed a non-Constitutional regulation on free speech in the past does not in anyway set a precedent to justify its reimposition in the future. Whether it be blogs, TV, AM radio, NPR, PBS, print media, satellite radio or cable, the Federal government cannot do anything to abridge the freedom of speakers to speak. The "Fairness doctrine" exactly interferes with speakers speaking freely.
And the rationalizations I provided for extending the "fairness doctrine" to print media and everyone else is at least as valid as the arguments being pitched by today's promoters. People should be very concerned that a 'fairness doctrine' designed to shut down Fox and AM radio today, will find new applications tomorrow. "fairness doctrine" is unworkable. It is pointless in today's world of rapidly evolving communication media. It is obviously targeted at one segment of the political discussion, designed to shut it up. It is unconstitutional. The last thing we need is less adherence to the liberty based values we were founded on.
7.30.2007 12:00am
Larry Fafarman (mail) (www):
David M. Nieporent said ( 7.29.2007 10:37pm ) --
"You still haven't answered my questions -- (1) What is there to prevent authoritative citations of visitors' comments on blogs and (2) what is there to prevent people from reading the visitors' comments on authoritatively cited blogs."

I still don't know what you mean by "authoritative citation,"


It obviously means something cited as an authority for the purpose of supporting or defending a point or argument, as opposed to, say, something cited for the purpose of just making a joke.

nothing prevents a court from citing a visitor's comment

Thank you -- you answered the first of the two questions. But you didn't answer the second.

"The Florida Supreme Court did not think that is the general rule."
I don't know why you keep harping on this; the Florida Supreme Court doesn't get to authoritatively (a proper use of the term!) interpret the U.S. Constitution.


In case you didn't know, the US Supreme Court accepts only a tiny fraction of appeals for review. If the US Supreme Court had not granted certiorari to the Tornillo v. Miami Herald case, then the Florida Supreme Court's decision in that case would have stood.

Also, "authoritative" does not necessarily mean "binding."

The Florida Supreme Court was mistaken.

And I suppose that the US Supreme Court is never mistaken. You are really getting desperate.

Newsprint is essentially unlimited.

Wrong. Many big newspapers get hundreds or thousands of letters-to-the-editor per day and can't print every one of them. Likewise, papers can't print every op-ed piece that is submitted to them.

The issue the court considered was whether the medium was limited, not whether time on a particular station was.

Who are you to limit the issues that the courts may consider in future cases?

You can't start your own station; you can start your own newspaper.

The barriers to starting your own big newspaper are greater than the barriers to starting a satellite radio channel and possibly also a cable TV channel -- you need big production and distribution facilities for a big newspaper.

I am reading the case law, rather than a one paragraph summary for lay people on a website.

Anyone who has a crystal ball that can predict how the courts are going to rule in every case can make a hell of a lot of money.

Miami Herald explicitly rejected the notion that lack of a "burden" was sufficient to save the statute in question, because it interfered with the paper's first amendment right to editorial control.

But the US Supreme Court ruled the opposite way in Red Lion, as did the Florida Supreme Court in Miami Herald.

"No, I did not treat Red Lion that way -- you are putting words into my mouth."

You did treat it that way.


OK, a lot of the Supreme Court's reasoning in the Red Lion case was based on First Amendment principles, even though the court did not rule that the FCC's "political editorial rule" and "personal attack rule" were required by the First Amendment -- for example, the SC said in Red Lion,

. . . the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.
7.30.2007 4:42am
Larry Fafarman (mail) (www):
hunter said ( 7.29.2007 11:00pm ) --
Smokey,
I think you get it. To impose any kind of restriction at all on bloggers is an odd idea. Blogs are private property, completely open to anyone with an internet connection, and are prolific.


No, I don't think Smokey -- or you -- get it. The government -- including the courts -- decides what is private property and what the associated rights of private property are. A "private" blog was recently shut down because it had pedophilic material.

In Red Lion v. FCC, the Red Lion Broadcasting Co. made the same claims of private property that you are making here and the court ruled against those claims. The Red Lion opinion says,

The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.

Also, if First Amendment claims are used to oppose the fairness doctrine, then why can't First Amendment claims also be used to defend the fairness doctrine? It all just depends on whose First Amendment claims are being supported -- in other words, on whose ox is gored.

BTW, as I pointed out in my comment of 7.29.2007 6:56pm , Red Lion did not rule on the fairness doctrine generally but only ruled in favor of the corollary doctrines called the "political editorial rule" and the "personal attack rule" (these rules are discussed in my comment of 7.28.2007 5:24am). IMO the court ruled correctly.

And the rationalizations I provided for extending the "fairness doctrine" to print media and everyone else is at least as valid as the arguments being pitched by today's promoters.

Wrong. The different media forms have different characteristics that justify different treatment under fairness doctrine principles. There is no one size here that fits all.
7.30.2007 9:52am
Fink (mail):
A few of you may think that you are engaging in a legitimate debate with Larry. It is a filibuster as he brags on his own site: "I hijacked "fairness doctrine" thread on Volokh Conspiracy!"

This sort of activity is the reason that he has been banned all over the net and is a great argument against the "Fairness Doctrine" as it encourages such activity.
7.30.2007 10:29am
Larry Fafarman (mail) (www):
A few of you may think that you are engaging in a legitimate debate with Larry. It is a filibuster as he brags on his own site: "I hijacked "fairness doctrine" thread on Volokh Conspiracy!"

Gosh, it was just a joke. Can't you people take a joke? And you obviously don't know what a "filibuster" is -- it is just a stalling tactic.

I feel that a fairness doctrine for blogs is on-topic here -- it helps in understanding the issues involved in a fairness doctrine for broadcasters.
7.30.2007 10:51am
Fink (mail):
Gosh, it was just a joke. Can't you people take a joke?


Considering you self-proclaimed "edit wars", your absurd lawsuits (all of which you have lost), and other types of antisocial behaviour, it would cast doubt on your claims that it was meant as a joke. Have the activities that have gotten you banned on a large number of blogs a joke?
7.30.2007 12:15pm
Larry Fafarman (mail) (www):
Considering you self-proclaimed "edit wars", your absurd lawsuits (all of which you have lost), and other types of antisocial behaviour, it would cast doubt on your claims that it was meant as a joke. Have the activities that have gotten you banned on a large number of blogs a joke?

Who in the hell is getting off-topic and uncivil here? You are, with your insults and ad hominem attacks. You are deliberately trying to provoke a flame war, and I am not going to take the bait.
7.30.2007 12:52pm
NickM (mail) (www):
I consider all of Larry's comments to be nonserious, because he has such a gross misunderstanding of the First Amendment that he knows less than nothing about it (i.e., what he "knows", isn't so).

Therefore, under his own standard, censorship of all of his comments would not be arbitrary, and would be permissible.

Getting this thread back on track, if you think tax policy would make a hash of determining what count as opposing viewpoints, imagine health care policy.

Non-English lnguage media are notorious for overtly siding with candidates - it has now become a major story how L.A. mayor Antonio Villaraigosa was being fed several days in advance the questions he would be asked on a supposedly unscripted interview show he regularly appeared on, while he and several other prominent L.A. area Latino politicians were in sexual relationships with another Spanish-language TV station's political reporter (who was covering them all the while).

Nick
7.30.2007 4:57pm
Larry Fafarman (mail) (www):
Reading the Balkinization blog showed me that there is another complicating factor here -- Section 315 of the Federal Communications Act. Section 315, which is still in effect, is described as follows:

The equal time, or more accurately, the equal opportunity provision of the Communications Act requires radio and television stations and cable systems which originate their own programming to treat legally qualified political candidates equally when it comes to selling or giving away air time. Simply put, a station which sells or gives one minute to Candidate A must sell or give the same amount of time with the same audience potential to all other candidates for the particular office. However, a candidate who can not afford time does not receive free time unless his or her opponent is also given free time. Thus, even with the equal time law, a well funded campaign has a significant advantage in terms of broadcast exposure for the candidate.

However, sometimes "equal time" is required where a candidate's appearance is non-political: ". . .during Ronald Reagan's political campaigns, if a station aired one of his films, it would have been required to offer equal time to Mr. Reagan's opponents."

There appears to be some overlap between (1) the FCC's repealed personal attack and political editorial rules (see my comment of 7.28.2007 5:24am) and (2) Section 315 of the Federal Communications Act. There are these differences:

(1) -- air time was required to be offered for free under the personal attack and political editorial rules, whereas Section 315 of the FCA only requires that all candidates be charged equal rates (including zero) for air time.

(2) -- those two repealed rules required that the air time be used for rebuttal of a personal attack or political editorial on the same channel -- Section 315 has no such requirement.

(3) -- the personal attack rule is available to everyone whereas Section 315 is available only to candidates in a public election.
7.30.2007 9:54pm
hunter:
Nick,
Thanks for the heads up. I should have caught it sooner.
7.30.2007 10:35pm
Larry Fafarman (mail) (www):
BTW, it is ironic that the people who make the "let them eat cake" argument that we don't need fairness doctrines for broadcasters and newspapers because people have the alternative of expressing themselves on the Internet are the same people who are in favor of allowing arbitrary censorship of visitors' comments on blogs and other Internet forums.
7.31.2007 7:25am
W. Kevin Vicklund:

BTW, it is ironic that the people who make the "let them eat cake" argument that we don't need fairness doctrines for broadcasters and newspapers because people have the alternative of expressing themselves on the Internet are the same people who are in favor of allowing arbitrary censorship of visitors' comments on blogs and other Internet forums.


The positions are perfectly consistent, despite your absurd mangling of the actual positions espoused. On the internet, there is always a place to espouse any viewpoint - even if you have to create it yourself.
7.31.2007 3:15pm
Larry Fafarman (mail) (www):
On the internet, there is always a place to espouse any viewpoint - even if you have to create it yourself.

In the Red Lion decision, the Supreme Court did not say that the guy who was denied an opportunity to make a rebuttal on the radio could have made the rebuttal from a soapbox somewhere.

There is no such thing as a general rule that no one may ever be required to present a statement that he doesn't want to present. I presume that tobacco companies are not happy about posting messages like "quitting smoking now will greatly reduce risks to your health" on their cigarette packages, but they do it.
7.31.2007 3:52pm
Larry Fafarman (mail) (www):
Most of my commenting on this issue is now being done on the Balkinization blog. I have four big comments already in this thread. Lots of new stuff.
7.31.2007 7:23pm