FedSoc LiveBlog: The Fairness Doctrine featuring Thomas Hazlett and Seton Motley

November 14th, 2009

Free Speech: The Fairness Doctrine
Friday, Nov. 13
3:15 p.m. – 4:45 p.m.
State Room

Prof. Thomas W. Hazlett, Professor of Law & Economics, George Mason University
Mr. Seton Motley, Communications Director, Media Research Center
Prof. Jamin Ben Raskin, Director, Law and Government Program, Washington College of Law, American University College of Law
– Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit

Mr. Seton Motley, Media Research Center

Radio act was designed to regulate transmissions for public and those from ships, etc

No limitations on ideas

-Fairness doctrine rescinded in 1987

-Since it was rescinded, we’ve had a blossoming of new ideas in new forums, which wouldn’t exist without rescinding the doctrine

-You should not apply rules against free speech on one venue and not others

-Going forward we need to be wary of limiting

-The left wants to shut down voices with which they don’t agree. The jig is up

-The battle today is in the concept of media diversity and localism, not the fairness doctrine



Public interest best judged by what the public is interested in

They’ll vote with what they listen to

Liberal radio has failed

The voice of public is being heard because they’re voting with what they listen to

It’s not the case that the people owning the airwaves is the same as the government owning it


Hon. Jamin Ben Raskin, American University Washington College of Law

-Just because everybody’s being treated the same way, it doesn’t mean it fair

-The Fairness Doctrine was Constitutional, but whose values need to be updated for today

-Unfairness doctrine: when public resources are converted to private use

-FCC created to alleviate the problems associated with over-competition in early days of radio

-Broadcasters required by FCC to evenhandedly offer time to groups with differing views

-Supreme Court held that this is a scarce resource, so there’s nothing wrong with placing conditions on its use

-Conservatives don’t seem to care about the “decency” rules

-The policy was Constitutional and warranted, but that doesn’t mean it worked very well

-Enforcement a tough administrative task

-But that doesn’t mean it’s partisan



I consider myself a very strong defender of free speech

Are you arguing for a total deregulation?

If you we’re going to deal with current situation, we need to think about media conglomeration, which poses a greater threat to free speech than the fairness doctrine could

-The right of reply was designed to give people who were attacked an opportunity to respond

-No one is arguing to bring the fairness doctrine back

-This debate is a proxy for current debates about core issues like media conglomeration


Prof. Thomas W. Hazlett, George Mason University School of Law

Red Lion decision notes that if there had been information that the decision would have a chilling effect, that it would have been decided differently

-Lifting the restraint of the Fairness Doctrine in 1987

-There isn’t really a debate about whether there is a chilling effect associated with the FD

-People who want the fairness doctrine typically say that they want to chill certain views

-The fact that there is a finite number of radio licenses is a complete myth

-They are no different than any other property right

-It’s an imaginary concept that has stumbled all the way to twenty-first century

-Public interest doctrine came directly from the FCC

-Limits on competitive entry helped radio corporations and regulators,

Now it’s time for the first amendment to give the rest of us what we want

-Airwaves should be treated as any other commodity, as private property

-We should turn the FCC into a court, which would rule on property rights

-Cable news looks a lot more like free speech that the 1970s when news came through three lookalikes, whose executives were having dinner at the white house, by the way