The fairness doctrine is dead and buried. Let’s stop trying to bring it back to life.

Following the death of Rush Limbaugh, a number of observers — including me — noted that Ronald Reagan had paved the way for him and other right-wing talk show hosts by ending enforcement of the fairness doctrine. That rule, part of the FCC’s toolbox for decades, required broadcasters to air opposing views and offer equal time to those who had been attacked.

So why not bring it back? It’s a suggestion I’ve seen a number of times over the past week. But though the idea of enforcing fairness on the airwaves has a certain appeal to it, the fairness doctrine is gone for good, and for some very sound reasons. For one thing, it applies only to broadcast, a shrinking part of the audio and video mediascape. For another, you can’t apply it to new technologies without violating the First Amendment.

The U.S. Supreme Court case that upheld the fairness doctrine and that simultaneously started the clock ticking on its eventual demise is Red Lion Broadcasting v. FCC, a 1969 decision based on the “scarcity rationale” — the theory that because the broadcast spectrum is limited, it may be regulated in the public interest.

The unanimous decision, written by Justice Byron White, involved an evangelical preacher named Billy James Hargis, who anticipated the likes of Jerry Falwell and Pat Robertson by a good decade. In a 15-minute tirade, Hargis attacked a journalist named Fred J. Cook, who had written a critical biography of Barry Goldwater, the 1964 Republican presidential candidate.

According to Hargis, the newspaper where Cook had worked fired him for making false accusations against city officials, and was a communist sympathizer besides. Cook contacted the Red Lion-owned radio station in Pennsylvania where he’d heard Hargis’ rant and demanded equal time. Red Lion refused, citing its free-speech protections under the First Amendment.

Justice White’s decision follows two main threads — that the FCC was well within its authority, as granted by Congress, to enforce the fairness doctrine and order Red Lion to provide Cook with an opportunity to respond; and that the reason the FCC had such authority was because of limits to the number of radio stations that can be on the air in a given coverage area. For instance, White writes:

Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.

Later on, he adds:

Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But 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.

Red Lion argued, among other things, that technological advances were making the fairness doctrine obsolete. Justice White replied that new uses for additional broadcast spectrum were quickly eating up that additional capacity, and that the demand was likely to exceed supply for many years to come. It was a crucial point — and it also anticipated the situation that developed in the post-Reagan era.

White’s decision explains why the scarcity of broadcast spectrum was the key to upholding the constitutionality of the fairness doctrine. I want to drive that home for those who think a new fairness doctrine could be applied to, say, satellite radio, cable television and the internet. Without scarcity, there is no constitutional rationale for the regulation of content. And with cable and satellite, there are hundreds of options; with the internet, the choices are theoretically infinite.

If Fred Cook wanted to respond to the not-so-good reverend today, he could attack him on Twitter, start a podcast, set up a blog — whatever. But he would not be able to demand redress from the radio station given that he would have multiple other ways of making his voice heard. (He could also sue for libel if he believed Hargis’ words were false and defamatory.)

The central role that scarcity plays in these legal calculations can be seen in another case where there was no scarcity — Miami Herald Publishing v. Tornillo (1974), in which the Supreme Court unanimously overturned a Florida law requiring newspapers to offer a right of response to political candidates who had been criticized.

In a unanimous decision, Chief Justice Warren Burger writes that even though media concentration and the demise of newspaper competition had led to a scarcity problem similar to that which prevailed in broadcast, it was the result of market forces rather than the unbreakable physical limitations of the broadcast spectrum. In order to start an over-the-air radio or television station, you need a license from the government, whereas anyone, at least in theory, is free to start a newspaper. Burger writes:

[T]he implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.

First Amendment protections are extraordinarily high, and they can only be breached for extraordinary reasons.

When Reagan’s FCC stopped enforcing the fairness doctrine in 1987, it cited the rise of cable TV as signaling the end of scarcity. I would argue that the FCC acted too soon. But by the mid-1990s, there was no longer any good reason for the government to regulate speech simply because it had been broadcast over the public airwaves.

Rush Limbaugh, Fox News, Alex Jones and the like have done serious damage to our democracy. But as Justice Louis Brandeis wrote in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

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Rush Limbaugh’s career was made possible by Ronald Reagan and Bill Clinton

Rush Limbaugh. Photo (cc) 2019 by Gage Skidmore.

Rush Limbaugh, the toxic right-wing talk show host who died Wednesday at the age of 70, came out of a regulatory environment that had changed utterly from what had come before. Although I like to tell my students that everything can be traced back to Richard Nixon, it was changes implemented by Ronald Reagan and Bill Clinton that gave us decades of Rush.

Starting in the 1930s and ’40s, the Federal Communications Commission required radio and, later, television stations to be operated in the public interest. The theory was that the broadcast spectrum was limited, so station operators were licensed and required to abide by rules such as the fairness doctrine. Right-wing talk would have been unimaginable during those years, since station executives would have been obliged to let the targets of Limbaugh’s attacks respond and to provide airtime to liberal hosts.

Reagan simply let those regulations lapse, and Limbaugh’s rise coincided with Reagan’s presidency. All of a sudden, a hate-monger like Rush was free to spew his bile every day without putting the stations that carried his show in any jeopardy.

The next step in Limbaugh’s rise was the Telecommunications Act of 1996, signed into law by Bill Clinton. The law was mainly seen as a way to regulate cable TV prices and encourage competition. But the act also removed any meaningful restrictions on the number of radio stations any one company could own in a given market or nationally.

The law led the rise of massive corporate radio chains such as Clear Channel and Cumulus. These companies had in many cases taken on substantial debt in order to build their empires, and the way they serviced that debt was by slicing local programming and loading up on cheap national content like Limbaugh’s show. It’s a dynamic that continues to play out. As recently as a year ago, iHeartMedia, the successor company to Clear Channel, decimated WBZ (AM 1030), Boston’s only commercial news station.

Although some folks call for the restoration of the fairness doctrine, that no longer makes sense. The scarcity rationale that provided the legal basis for regulation is long gone, with satellite and internet radio offering hundreds if not thousands of choices. Podcasts have eaten significantly into the audience. Radio has fractured, just like most forms of media. Though I would like to see ownership caps restored, even that seems less relevant than it did a quarter-century ago given the multiplicity of audio options that are out there today.

That fracturing also means a radio show like Limbaugh’s could never become such a massive phenomenon today. Fox News long since surpassed Limbaugh in terms of audience and influence — and now they’re being threatened by new competitors like Newsmax, OANN and conspiracy-minded internet programming such as Alex Jones’ InfoWars. Rather than one big Rush, the mediascape is littered with a bunch of little Rushes. It’s not an improvement.

Limbaugh, of course, helped give rise to Donald Trump, and the two men have a lot in common — towering self-regard served up with heaping doses of racism, misogyny and homophobia. It’s no wonder that Trump presented Limbaugh with the Medal of Freedom. This piece, published by HuffPost shortly after Limbaugh’s death, is brutal but accurate.

It’s a terrible legacy. But Limbaugh seemed content with his choices right up until the end of his life.

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Ill-advised Hinckley decision undermines insanity defense

President Reagan moments before being shot by John Hinckley. Photo (cc) by Thomas Hawk.
President Reagan moments before being shot by John Hinckley. Photo (cc) by Thomas Hawk.

I’m not outraged that a federal judge has decided to release John Hinckley, who tried to assassinate President Ronald Reagan in 1981. But I don’t think it’s a good idea, either. Hinckley grievously wounded the president; say what you will about Reagan’s seemingly complete recovery, but there was plenty of evidence that he was never the same. Hinckley also injured Reagan’s press secretary, Jim Brady, leading to Brady’s premature death in 2014.

This isn’t a yes-or-not situation; Hinckley already enjoys considerable freedom, and he apparently has not abused it. He’ll still be under some supervision. Still, I don’t think the government should go any further for two reasons:

1. Federal judge Paul Friedman ruled that “the preponderance of the evidence” shows “that Mr. Hinckley will not be a danger to himself or to others.” This strikes me as a value judgment, and that Friedman had the discretion to rule otherwise on the grounds that anyone who did what Hinckley did will always be a danger to others.

2. Hinckley was found not guilty by reason of insanity. That outraged a lot of people who wanted to see him go to prison. In fact, it was the right thing to do, and it ought to happen more frequently. Unfortunately, granting freedom to someone as notorious as Hinckley will only make it more difficult for defense lawyers to make the already-difficult case that their clients should not be held criminally responsible.

Hinckley should be held in a safe, humane, and secure facility. He should not be freed.

More: Harvey Silverglate writes, “What you did not mention is that the release of Hinckley will embolden supporters of the death penalty.” Indeed it will.

Barry Crimmins gets his overdue due in ‘Call Me Lucky’

still_callme
Barry Crimmins in “Call Me Lucky”

What can you say about a film that stars someone you know and admire telling the world about being raped repeatedly — and nearly killed — when he was 3 years old?

Since we’re talking about Barry Crimmins, I would say that you should see it as soon as you can.

“Call Me Lucky,” directed by Bobcat Goldthwait, had its New England premiere on Saturday at the Somerville Theatre as part of the Independent Film Festival. As befits the subject, the documentary almost feels like two films. In the first part we meet Crimmins the caustic left-wing performer, who almost single-handedly created Boston’s comedy scene in the 1980s. In the second part, Crimmins comes to terms with his past as a survivor of childhood sexual abuse.

It was during this second phase that I got to know Barry. He revealed what had happened to him in the early 1990s in a harrowing front-page essay for The Boston Phoenix headlined “Baby Rape.” (I had a small role in copy-editing it, but most of the heavy lifting was handled by the late Caroline Knapp — and, of course, by Barry himself.) Later, Barry was a valuable resource as I was doing my own reporting about child sexual abuse. This was around the time Barry was engaged in a very public campaign against AOL and the pedophiles it allowed to run rampant in its chatrooms, a centerpiece of “Call Me Lucky.” Even though I can’t pretend to be a close friend of Barry’s, I’ve always been struck by his fundamental kindness and decency — a quality that comes through repeatedly in the film. (I was among many people Goldthwait interviewed, but I didn’t make the cut.)

Barry was a regular in the Phoenix, writing a satirical year-in-review piece every Christmas as well as other humor pieces. This 2003 takedown of Dennis Miller works as well today as it did 12 years ago. I still laugh when I recall his referring to George W. Bush as “the court-appointed president.” Barry was a big part of the Phoenix, and vice-versa. So I was pleased to see him pay tribute to the late managing editor Clif Garboden in the credits, saying he learned to write through Clif’s editing. Fittingly, Clif’s own classic apex as an angry humorist begins with a quote from Barry.

Despite its somber subject matter, there are plenty of laughs in “Call Me Lucky” — not just from Crimmins, but from many other comedians, including Jimmy Tingle, Margaret Cho and Lenny Clarke. The biggest laughs, though, are reserved for Ronald Reagan, who is seen attempting to explain what he knew and didn’t know about the Iran-Contra scandal. The man was a comic genius.

Barry was — and is — a comic genius as well. Because I wasn’t taking notes, I’ll rely on the press release for one of my favorite bits from the movie. A protégé of Barry’s, Bill Hicks, recalls that a member of the audience once yelled, “If you don’t love America why don’t you get out?” Crimmins’ response: “Because I don’t want to be a victim of its foreign policy!”

Also posted at WGBHNews.org.

Billionaires’ bash: Big moves by Henry’s Globe, Bezos’ Post

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Previously published at WGBHNews.org.

Tuesday may have been the biggest day yet for billionaire newspaper owners John Henry and Jeff Bezos. Henry’s Boston Globe launched the long-anticipated Crux, a free standalone website that covers the Catholic Church. And Bezos replaced Katharine Weymouth as publisher of The Washington Post, bringing an end to the 81-year reign of the Meyer-Graham family.

At a time when the newspaper business remains besieged by cuts (including 22 Newspaper Guild positions at The Providence Journal this week, according to a report by Ian Donnis of Rhode Island Public Radio), Henry and Bezos are taking the opposite approach.

“You can’t shrink your way to success,” new Washington Post publisher Frederick Ryan told Michael Calderone of The Huffington Post. “Growth is the way to continue to build a strong news organization.” Ryan’s words were nearly identical to those of the Globe’s chief executive officer, Michael Sheehan, at the unveiling of the paper’s weekly political section, Capital, in June: “You can’t cut your way to success. You can only grow you way to success.”

First Crux. To my non-Catholic eyes, the site appears to offer an interesting mix of the serious and the not-so-serious. The centerpiece is John Allen’s deeply knowledgeable reporting and analysis, some of which will continue to appear in the Globe. (In late August, Publishers Marketplace reported that Allen is writing a biography of Pope Francis with the working title of “The Francis Miracle.” No publisher was named, but according to this, Time Home Entertainment will release it in March 2015.)

Crux national reporter Michael O’Loughlin has weighed in with features on Native American Catholics who blend tribal and Roman traditions and on the Vatican Secret Archives, whose contents turn out to be not as interesting as the phrase makes them sound. Vatican correspondent Inés San Martín covers stories such as Pope Francis’ call for peace in Gaza. WGBH’s Margery Eagan, a former Boston Herald columnist, is writing a column called “On Spirituality.” The events calendar makes it clear that Crux is a very Catholic venture.

There’s a lighter side to Crux, too, such as a trivia quiz on the saints and updates on football teams from Catholic colleges. Crux’s own reporters are supplemented with wire services, including the Associated Press, Catholic News Service and Religion News Service, as well as personal essays such as the Rev. Jonathan Duncan’s rumination on life as a married Catholic priest with children (he used to be an Episcopalian). Crux is also asking readers to write brief essays; the debut topic is illegal immigration.

Two quibbles. An article on the suffering of Iraqi Christians was published as a straight news story, even though the tagline identifies it as coming from “the pontifical organization Aid to the Church in Need.” When you click to “learn more,” you find out that Church in Need is an advocacy organization that is actively seeking donations. The disclosure is sufficient, but the placement strikes me as problematic. If Crux were a print newspaper, the article could have appeared on the op-ed page. Crux needs a clearly marked place for such material as well.

My other quibble is that content is undated, leaving the impression that everything is now. That can cause confusion, as with a John Allen Globe piece on immigration that refers to “Friday night” — and links to an Associated Press story published on Aug. 2. (Dates do appear on author bios.)

The site is beautifully designed, and it’s responsive, so it looks good on tablets and smartphones. There are a decent number of ads, though given the state of digital advertising, I think it would make sense — as I wrote earlier this summer — to take the best stuff and publish it in a paid, ad-supported print product.

Globe editor Brian McGrory, Crux editor Teresa Hanafin, digital adviser David Skok and company are off to a fine start. For more on Crux, see this article by David Uberti in the Columbia Journalism Review and this, by Justin Ellis, at the Nieman Journalism Lab.

***

A torrent of punditry has already accompanied the news that Frederick Ryan, a former chief executive of Politico, will become publisher of The Washington Post on Oct. 1.

The irony is thick. When Post political reporters John Harris and Jim VanDeHei proposed launching Politico under the newspaper’s auspices in 2006, they were turned down. Today, Politico often dominates the political conversation in a way that the Post used to (and, of course, sometimes still does). I’m not always a fan of Politico’s emphasis on politics as insider gamesmanship, but there’s no doubt the site has been successful.

As the Post’s own account makes clear, Ryan is a longtime Republican activist, and was close to both Ronald and Nancy Reagan. That shouldn’t affect the Post’s news operations, though it could affect the editorial page — hardly a bastion of liberalism even now. In another Post story, Ryan “endorsed” executive editor Marty Baron and editorial-page editor Fred Hiatt. Baron, a former Globe editor, may be the best newspaper editor working on this side of the Atlantic.

What concerns me is the strong scent of insiderism that is attached to Ryan. In an address to the staff, Ryan said one of his goals is “winning the morning,” according to a series of tweets by Post media blogger Erik Wemple (reported by Jim Romenesko). That might seem unremarkable, except that it sounds like something right out of the Politico playbook — um, make that “Playbook.”

A New York Times account by Ravi Somaiya dwells on Ryan’s obsession with the annual White House Correspondents Dinner, and quotes Ryan as calling it “an important event.” Those of us who find the dinner to be an unseemly display of Beltway clubbiness might agree that it’s important, but for different reasons.

Then again, if Ryan can fix the Post’s business model and show the way for other news organizations, all will be forgiven. The Post, like the Globe, has been expanding under new ownership. On Tuesday, the Post unveiled its most recent venture, The Most, an aggregation site.

Bezos’ track record at Amazon shows that he’s willing to take the long view. I suspect that he’s still just getting started with the Washington Post.

 

Media to president: You’re a liberal!

The state of the union may or may not be strong, but the State of the Union was liberal.

That was the view of media commentators from the left, right and center the morning after President Barack Obama delivered his fourth State of the Union address. The president called for a higher minimum wage, universal preschool and action on gun control and climate change, among other things. And the consensus is that his support for such measures signaled a public embrace of activist government that we’ve rarely seen since the rise of Ronald Reagan more than three decades ago.

Read the rest at the Huffington Post.

Decoding the Times’ Haig obituary

Tim Weiner of the New York Times weighs in with a harsh obituary of Alexander Haig. You should check out his description of Haig’s behavior after Ronald Reagan had been shot — he comes off as a power-mad general intent on staging a coup.

No, Haig did not speak with great precision that day. But do former Reagan aides like Richard Allen, who clearly hated Haig, really believe that Haig didn’t understand the vice president was next in line if Reagan were incapacitated?

The key to Weiner’s piece is this paragraph:

“His tenure as secretary of state was very traumatic,” John M. Poindexter, later Mr. Reagan’s national security adviser, recalled in the oral history “Reagan: The Man and His Presidency” (Houghton Mifflin, 1998). “As a result of this constant tension that existed between the White House and the State Department about who was going to be responsible for national security and foreign policy, we got very little done.”

Amazingly, Weiner does not identify Poindexter as (1) a central figure in the Iran-Contra scandal, which nearly brought Reagan’s presidency down, and which unfolded years after Haig left the Reagan administration; and (2) the mastermind of a surveillance system during the George W. Bush years called, in a nice Orwellian touch, the Total Information Awareness System, or TIAS.

Getting trashed by the likes of John Poindexter is a good thing. Too bad Weiner didn’t make that clear.

More: It gets worse. BP Myers notes in the comments that Weiner claims the bombing of the U.S. embassy in Beirut, which cost the lives of 241 marines, took place in “the immediate aftermath” of Haig’s dismissal, as though his policies were somehow responsible. In fact, the date of the bombing was Oct. 23, 1983, a year and a half after Haig’s departure.

Alexander Haig, 1924-2010

Alexander Haig

Alexander Haig, a longtime Media Nation favorite, has died at the age of 85. My high regard for Haig is based on the three most famous incidents of his career. I can’t pretend to know what Haig was thinking, but my strong suspicion is that his contributions to the nation were never fully understood or appreciated.

First, as Richard Nixon’s chief of staff during the final days of Nixon’s presidency in 1974, Haig paved the way for Nixon’s peaceful departure from office — no sure thing at the time. There have been suggestions, never proven, that Haig was in on secret discussions with the Pentagon to disregard any orders from Nixon that could lead to a military coup or a nuclear strike. At the very least, Haig served as an honest broker between Nixon and then-vice president Gerald Ford, who may have promised a presidential pardon during this tense, dangerous period.

Second, Haig sacrificed his career as Ronald Reagan’s secretary of state by reassuring a jittery public following the attempt on Reagan’s life in 1981. Haig may not have realized it at the time, but his words before the television cameras — often misquoted as “I’m in charge” — were misinterpreted by his enemies (deliberately, I would argue) to make it sound as though he was attempting his own coup, superseding then-vice president George H.W. Bush. (Haig’s actual words: “As of now, I am in control here, at the White House.”) Haig deserves credit for stepping up at a moment when others were running around like Chicken Little. As it turned out, that moment effectively marked the end of Haig’s public service; he left office the following year.

Finally, and I say this at least partly tongue-in-cheek, Haig entered the 1988 Republican presidential primaries for the sole purpose of sparing the country from George H.W. Bush. Haig had to know he personally had no chance of winning. Thus my suspicion is that he hoped to do enough damage to Bush in order to steer the nomination to Bob Dole. Haig’s classic putdown of Bush in a 1987 debate — “I never heard a wimp out of you” — was aimed at playing off a famous Newsweek cover story about Bush headlined “Fighting the ‘Wimp Factor.'” And when Haig, inevitably, pulled out of the race, he endorsed Dole. Bush prevailed, of course. But Haig did what he could.

The president and the Boss

A radio station needn’t obtain advance permission before playing a particular song by a particular musician. Same with a nightclub. Under copyright law, you’re free to play copyrighted music as long as you pay a fee.

That goes for politicians, too. In today’s Washington Post, Christopher Sprigman and Siva Vaidhyanathan explain why musicians such as Ann and Nancy Wilson of Heart, the Foo Fighters and others have no legal basis in objecting to the McCain campaign’s use of their songs. The campaign, they note, has paid its licensing fees, and that should be the end of it. (Via Altercation.)

It’s a free-speech issue, and, as such, we should be just as vigilant against Jackson Browne’s attempt to censor the Republicans as we are about, say, Sarah Palin’s redefinition of freedom of the press as a “privilege.”

The man who wrote the book on how to respond to an unwanted political embrace was Bruce Springsteen. In 1984, Ronald Reagan, running for re-election, gave a shoutout to Springsteen, whose “Born in the U.S.A.” had set off a boomlet of patriotic fervor. Though in actuality it was a bitter antiwar anthem, the upbeat music had confused more than a few conservatives into thinking Bruce had cast his lot with the “Morning in America” crowd.

Shortly thereafter, Springsteen, at a concert in Pittsburgh, introduced his song “Johnny 99” — about an unemployed auto worker-turned-murderer — with this:

The president was mentioning my name the other day, and I kinda got to wondering what his favorite album musta been. I don’t think it was the ‘Nebraska’ album. I don’t think he’s been listening to this one.

And that was the end of that. (Wikipedia reference verified by my steel-trap memory.)

Update: Looks like some news organizations are pushing an overly restrictive interpretation of copyright law, too — even going so far as to demand that YouTube delete some McCain ads that use news clips.

Photo (cc) by Music Master and republished here under a Creative Commons license. Some rights reserved. And in case you were wondering, yes, that’s a wax figure, not the real Bruce.