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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The war against ‘fake news’ is over. So what’s next in restoring media credibility?

Rush Limbaugh. Photo (cc) by xxx.
Rush Limbaugh. Photo (cc) 2010 by Gage Skidmore.

Don’t say I didn’t warn you. A little over a month ago I wrote that if we tried to expand the definition of “fake news” beyond for-profit clickfarms, then the movement to eradicate hoaxes from Facebook and other venues would quickly degenerate into ideologically motivated name-calling.

And so it came to pass. The New York Times on Monday published two stories that, for all purposes, mark the end of the nascent battle against fake news.

The first, by Jeremy Peters, details the efforts of Rush Limbaugh, Breitbart, and other right-wingers to label anything they don’t like that’s reported by the mainstream media as fake news. The second, by David Streitfeld, documents how the right has unleashed its flying monkeys against Snopes.com, the venerable fact-checking site that is the gold standard for exposing online falsehoods.

Read the rest at WGBHNews.org. And talk about this post on Facebook.

A compelling case for ‘knowledge-based journalism’

9780345806604This review was previously published in The Huffington Post.

In the early 1990s the media identified an existential threat: violent crime. Sparked by high-profile cases such as the murder of a 12-year-old girl, Polly Klaas, and the fatal shooting of six passengers on a train in Long Island, news outlets from local television to Time magazine elevated criminal carnage above all other issues.

Such relentlessness brought results. By mid-1994, 40 percent of Americans were telling Gallup that crime was the country’s leading problem. Elected officials responded by passing laws mandating tougher prison sentences and by building new prisons. Within 10 years, the United States was locking up a higher proportion of its population than other country.

But there was something fundamentally wrong with all this. As Thomas E. Patterson describes it in his new book, “Informing the News: The Need for Knowledge-Based Journalism (Vintage), violent crime was actually on the decline in the early ’90s — including a 4 percent drop from 1993 to ’94. Thus journalistic malpractice led to policy malpractice, with consequences we continue to live with today.

Patterson is a longtime journalism and media observer as well as the Bradlee Professor of Government and the Press at Harvard’s Shorenstein Center on Media, Politics and Public Policy. (Disclosure: He is also a friendly acquaintance.) The essence of his  argument is that it’s no longer enough (if it ever was) for journalists to describe what they learn from interviews and direct observation. They also need to know what’s true and what’s false, and to incorporate such knowledge into what they convey to the public.

“Today’s journalists,” Patterson writes, “use reporting tools that were developed more than a century ago and were better suited to the demands of that age than to those of today, where manufactured consent, clever fabrications, and pumped-up claims are everyday assaults on the public’s sense of reality. … Knowledge-based journalism would provide the steady supply of trustworthy and relevant news that Americans now lack, but sorely need.”

As the example of violent crime suggests, knowledge-based journalism should be grounded in a way of thinking. It’s never been a secret that the U.S. Department of Justice compiles crime statistics, and of course today those numbers are far easier to access than they were 20 years ago. Thus the key is for reporters, editors and news directors to seek out the truth and resist the urge to pander. Obviously that’s easier said than done. The spirit of Walter Lippmann’s quest for scientific journalism permeates “Informing the News,” but as Patterson notes, it has never pervaded more than a fraction of the news media.

Patterson is especially strong in describing the confluence of mindless objectivity and a lack of knowledge. When a journalist doesn’t understand the truth of what he is covering, it’s all too easy simply to present different viewpoints and leave it up to the reader, the viewer or the listener to decide. “The objective model of American journalism offers a weak defense against factual distortions,” Patterson writes. “Not only does the commitment to balance invite such distortions, it allows them to pass unchecked.”

Yet even an empiricist like Patterson can’t overcome human psychology. And one of the obstacles to knowledge-based journalism is that we are wired to adhere closely to our beliefs, regardless of whether they are grounded in reality. Patterson presents research by the Dartmouth College political scientist Brendan Nyhan showing that we tend to cling to misinformation even more tightly after our errors have been pointed out to us.

In a world in which comfortingly false information is never more than a click of the mouse or the cable box away, it is unclear how knowledge-based journalism would reach an audience larger than the one that already seeks reliable news. It is, after all, the genius of the right that it has managed to convince large swaths of the public that The New York Times and NPR are merely liberal equivalents of the Fox News Channel and Rush Limbaugh. Patterson describes the problem, but he doesn’t propose a solution. And it’s hard to imagine what a solution would look like.

So how are we to move in the direction of knowledge-based journalism? Patterson writes that “the university rather than the newsroom is the logical place to develop it,” and he calls for reforms in journalism education along the lines proposed by the Carnegie-Knight Initiative on the Future of Journalism Education — the most relevant being “expertise in the specific subjects to be reported on.” At the very least, journalists should make use of nonpartisan repositories such as the Shorenstein Center’s own Journalist’s Resource, which compiles data and studies in areas ranging from human rights to climate change.

Patterson has made a valuable contribution to the ongoing discussion of what we should expect of journalism at a time when media outlets are multiplying, revenues are shrinking and opinion is elevated over fact-based reporting. Whether we actually embrace knowledge-based journalism or not, he has underscored journalism’s basic mission: to provide the public with the information it needs to govern itself in a democratic society.

WTKK and the ongoing collapse of corporate radio

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This commentary was previously published by the Huffington Post.

Update: I’ll be on New England Cable News on Friday at 7:15 a.m. to talk about WTKK and the future of radio.

At 10 a.m. on Wednesday, Jim Braude and Margery Eagan signed off for the last time from the morning talk show they had hosted on Boston’s WTKK Radio (96.9 FM). A few minutes later, the station reemerged as Power 96.9, a faceless entity blasting out robo-music of some sort. And Boston found itself with just one full-time talk radio station. (The station was quickly redubbed Nova 96.9, apparently because of this.)

The demise of WTKK has been portrayed as another nail in the coffin of right-wing talk radio. The estimable D.R. Tucker calls it part of “a downward spiral for a key element of the conservative entertainment complex.” And, yes, that’s surely part of it.

But what we are really seeing is the demise of commercial radio in general, as corporate owners (Greater Media in WTKK’s case) attempt to squeeze the last few nickels of profit out of a medium that may be in its final stage of collapse.

By the end, WTKK wasn’t even a right-wing talk station. Braude, a liberal, and Eagan, a moderate, hosted a civil show that was more about entertainment than politics. Moderate politics and humor were the rule during midday. The only right-winger was afternoon host Michael Graham, whose idea of a good time was to make fun of people with dwarfism.

It was a far cry from the days when WTKK’s signature host, Jay Severin, would call Al Gore “Al Whore” and refer to Hillary Clinton as “a socialist” and “a pig.” Then again, Severin himself was long gone, having made the mistake of joking about sex with interns at a moment when his ratings were falling.

During the 1970s, ’80s and ’90s, Boston was a terrific town for talk radio, the home of pioneers such as David Brudnoy, Jerry Williams and Gene Burns, among others. Yes, they leaned right, but their approach was intelligent and respectful (OK, Williams often wasn’t respectful), and they were immersed in the local scene in a way that few talk-show hosts are these days.

So now we are left with one full-time talk station, WRKO (AM 680), home to right-wingers Rush Limbaugh and Howie Carr, a local legend whose shtick descended into bitter self-parody years ago. (Limbaugh’s syndicated show recently moved back to WRKO from a weak AM station owned by Clear Channel.) It certainly hasn’t helped either WTKK or WRKO that their ratings pale in comparison to two full-time sports stations — a phenomenon that didn’t exist during the heyday of local talk.

The only bright light is Dan Rea, who helms a very conservative evening program on all-news station WBZ (AM 1030). Rea, a former television reporter, eschews the shouting and demeaning putdowns in favor of smart conversation.

What happened to talk radio in Boston? I would point to three factors. And I would suggest that none of these are unique to our part of the country. Boston may be on the leading edge, but these same trends could sweep away talk elsewhere, too.

Corporate consolidation. Since the passage of the lamentable Telecommunications Act of 1996, corporations have been buying up radio stations in market after market, transforming what was once a strictly local affair into a bottom-line-obsessed business.

As far back as 1997 I wrote in the Boston Phoenix that the rise of chain ownership would eventually kill local talk. We are now seeing that come to fruition. The automated music stations that are on the rise may not garner many listeners. But they are cheap, which means that their owners can bleed some profits out of them regardless.

“In our current media environment, corporate owners seem to have less tolerance for the station that is unusual, the station with the niche audience,” media scholar and radio consultant Donna Halper wrote for Media Nation earlier this year. “Part of what makes radio unique as a mass medium is its ability to befriend the listener. So losing a favorite station is much like losing a friend.”

The rise of public radio. Boston is home to an exceptionally vibrant public radio scene. Two stations with strong signals — WBUR (90.9 FM) and WGBH (89.7 FM) — broadcast news, public-affairs programming and (yes) talk all day and night, and enjoy some of the largest audiences in the Boston area. (Disclosure #1: I’m a paid contributor to WGBH’s television station, Channel 2.) Other, smaller public stations broadcast far more eclectic musical offerings than anything on commercial radio.

This trend is related to corporate consolidation, as it was the slide in quality on the for-profit side that sent many listeners fleeing to nonprofit radio. If anything, that trend will accelerate.

Technological change. Earlier this year The Phoenix sold the FM signal for its independent rock station, WFNX, to Clear Channel — but kept streaming online. The Boston Globe, meanwhile, hired a few of the people who were laid off when WFNX left the air and now streams its own indie rock station, RadioBDC. All of a sudden, we’ve got a war between two local music stations, neither one of which can be heard over the air. (Disclosure #2: I’m an occasional contributor to The Phoenix.)

These days it’s not difficult to stream Internet radio in your car, which is where most radio listening takes place. Pandora, Spotify and out-of-town music stations (WWOZ of New Orleans is a favorite of mine) are powerful draws, which gives the local flavor of online stations like RadioBDC and WFNX a considerable edge over computer-programmed corporate radio — or, for that matter, subscription-based satellite radio.

It is this last development that gives me reason for optimism. Radio has always been held back by the physical limits of the broadcast spectrum. In a world in which those limits don’t exist, “radio” stations must compete on the strength of their programming rather than their stranglehold on the AM and FM dials.

Seen in that light, the end of WTKK is just another step on the road toward what may be a brighter, more diverse radio future.

Limbaugh back, Severin out

I find this less interesting than I would have a few years ago, so just read Jessica Heslam’s report in the Boston Herald. The main takeaways: Rush Limbaugh is coming back to WRKO Radio (AM 680). And Jay Severin is once again looking for work.

Jay Severin returns to Boston’s airwaves

Four months after being fired by WTKK Radio (96.9 FM), Jay Severin is returning to the air — this time with WXKS (AM 1200), a Clear Channel-owned station that has tried to build a talk-radio alternative around nationally syndicated right-wingers like Rush Limbaugh, Glenn Beck and Sean Hannity. The Boston Herald reports today that Severin will helm afternoon drive (3 to 6 p.m.) starting this Thursday.

Severin, who has a long history of making incendiary racial and sexual remarks, was canned after a preening, offensive monologue about his alleged swordsmanship with interns. More to the point, I suspect, was that his ratings had plummeted, making it hard to justify his reported $1 million salary. No word in the Herald as to what Clear Channel is going to pay him.

Rob Eno wonders if Severin might actually beat his replacement at ‘TKK, Doug Meehan, since Severin will be following Limbaugh — “gold in the talk radio game.” (Meehan’s lead-in is Michael Graham, so I can certainly understand Eno’s reasoning.) Problem is, Boston has always been one of Limbaugh’s weakest markets. Indeed, when Clear Channel converted ‘XKS to a right-wing talk station a couple of years ago, it called itself “Rush Radio.” Now it’s just “Talk 1200,” which suggests that executives don’t see Limbaugh as much of a local asset.

A far bigger issue is WXKS’s weak signal. Though promos tout its 50,000 watts of power, that doesn’t translate into listenability. Driving in from the North Shore earlier today, it wasn’t until I hit Revere that the static finally dropped to a tolerable level. Even liberal talk station WWZN (AM 1510), with its notoriously weak signal, came in more clearly.

As for Severin’s return, it will be interesting to see if anyone cares. Somewhere, Scot Lehigh is quietly celebrating. But I’ve missed it if anyone has been pining for Severin’s return to the Boston airwaves.

No rush to listen to Rush on new station

Rush Limbaugh

The Boston Herald’s Jessica Heslam reports that WXKS (AM 1200) — the home of Rush Limbaugh and Glenn Beck — is tanking, and that it shows Boston may be a lousy market for right-wing radio.

She’s right, but the Clear Channel-owned ‘XKS is hardly proof, given its less-than-clear signal. The real story is farther down in her piece, where we learn that the city’s two major talk-radio stations, WTKK (96.9 FM) and WRKO (AM 680), are performing poorly as well. Both ‘TKK and ‘RKO are mostly right-wing.

Heslam makes no mention of it, but I’m sure the ratings for Boston’s one liberal talk station, WWZN (AM 1510), are minuscule, given its poor signal.

Fact is, talk radio was once a phenomenon, but now it’s grown stale. The only show on the commercial dial that sounds even remotely like talk radio in its Boston heyday is Dan Rea’s, on WBZ (AM 1030). Rea’s a journalist who knows how to ask questions, and he hosts a guest-heavy, non-shouting program that doesn’t grate.

That’s not to say there aren’t talk-show hosts in Boston who are doing a pretty good job. I’d cite Jim Braude and Margery Eagan on ‘TKK and Charley Manning on ‘RKO. But the glory days of Boston talk radio are over.

Photo via WikiMedia Commons.

Is there more to Howie’s suspension?

Howie Carr

Sometimes a cigar is just a cigar. So maybe Howie Carr’s suspension from WRKO Radio (AM 680) is just a suspension. But let me inject some uninformed speculation into the matter. The once-great station has been running on fumes for some time. Maybe its corporate owner, Entercom, has decided to force an end game, let Carr out of his contract and turn ‘RKO into an outlet for, oh, let’s say Spanish-language infomercials.

The Boston Globe’s Erin Ailsworth reports that Carr was suspended for a week for badmouthing the station on the air — something he has done continuously since he was forced into staying in 2007. (Apparently it’s gotten worse lately.) Carr is said to be unhappy that Rush Limbaugh’s syndicated show recently moved to Clear Channel’s WXKS (AM 1200), part of a national “Rush Radio” network.

Funny, but I thought one of the reasons the station replaced Rush with Republican political consultant Charley Manning was that Howie and Manning are buddies, and that Charley might keep the petulant star more or less in line. I don’t have any numbers in front of me, but Boston radio observers have long noted that this is one of Limbaugh’s worst markets. The idea of not fighting to keep Limbaugh and going with a local show struck me as pretty smart, even if Manning’s show is a work in progress.

Carr does seem to be wallowing in bitterness lately. For instance, he recently wrote in his Boston Herald column that President Obama wouldn’t have made it through college and law school if he weren’t black:

Of course, no one expects Barack Obama to really know anything. We understand, all too well, exactly how he got through Columbia and Harvard Law. He had certain … intangibles, shall we say.

That’s pretty rancid even by Howie’s standards. No, I’m not leaving anything out — the ellipses are his, not mine.

Back in 2007, Carr tried to jump to WTKK (96.9 FM), which wanted him as its morning guy. Unfortunately for Carr, he turned out to have a contract more restrictive than Curt Flood’s, and he was forced to stay.

What’s not known is whether Greater Media, which owns ‘TKK, still wants him. Morning drive is now ably helmed by Jim Braude and Margery Eagan. Would ‘TKK move Jay Severin out of afternoon drive to make way for Carr?

Moreover, given the changed economic climate, it certainly seems unlikely that Greater Media would still be willing to pay Carr $7 million over five years.

The other mystery factor is how much Entercom really wants WRKO to succeed. There’s a lot of audience overlap between ‘RKO and another Entercom station, WEEI (AM 850), a sports-talk outlet that also carries the Red Sox. No doubt the company wants WRKO to make money, but not at the expense of its more-valuable sports station.

Carr is a legitimate talent, but it’s been years since he’s showed more than an occasional glimmer. His suspension comes at a time when he probably has little leverage. Maybe he’ll be back on the air in a week as though nothing happened. But you have to wonder if Entercom executives have finally decided it’s time to do something drastic about its faltering talk station.

Photo (cc) by Paul Keleher and republished here under a Creative Commons license. Original at Wikimedia Commons.

Limbaugh reported to be in “serious” condition

Radio talk-show host Rush Limbaugh is reportedly in “serious” condition in a Hawaii hospital after suffering from chest pains.