The Fairness Doctrine and Justice Kagan’s Dissent in the Arizona Campaign Finance Case

August 25th, 2011

I couldn’t help but draw a simlarity between the rationale behind the fairness doctrine, and an argument Justice Kagan made in the Arizona campaign finance case.

in short, the fairness doctrine says that if someone says X on broadcast media, then someone affected by X should have equal time to reply. The idea behind this is that more speech, on both sides of the issue is better. The government should proactively force broadcasters to sacrifice their time and resources to permit this equal time. The Supreme Court upheld this rule, though the FCC recently dropped it from the books, citing its chilling effect on free speech.

The so-called Fairness Doctrine, first implemented in 1949 during a time when local broadcast markets had little competition and regulators hoped to promote differing political points of views.

The doctrine was abandoned in the late 1980s, but was never technically removed from the books. That has periodically concerned some media groups, particularly conservative groups that feared talk shows would be required to present equal time to opposing views.

Genachowski said the doctrine instead “ holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago.”

In Kagan’s opinion, she wrote that one of the reasons for Arizona’s policy–whereby the state pays the candidate who does not accept public money the same amount (basically) that the candidate who opted out of public funding raises–is that it creates more speech.

The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accom- plishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

Kagan reasoned that more speech–that is speech from both candidates–is a good thing. She criticizes the majority for preferring  a rule with less speech.

4The majority argues that more speech will quickly become “less speech,” as candidates switch to public funding. Ante, at 15, n. 7. But that claim misunderstands how a voluntary public financing system works. Candidates with significant financial resources will likely decline public funds, so that they can spend in excess of the system’s expenditure caps. Other candidates accept public financing because they believe it will enhance their communication with voters. So the system continually pushes toward more speech. That is exactly what has happened in Arizona, see n. 2, supra, and the majority offers no counter-examples.

This footnote from the Chief responds to Kagan’s point:

The dissent also repeatedly argues that the Arizona matching funds regime results in “more political speech,” post, at 9 (emphasis in origi- nal); see post, at 2, 10, 13, 16, 32, but—given the logic of the dissent’s position—that is only as a step to less speech. If the matching funds provision achieves its professed goal and causes candidates to switch to public financing, post, at 25, 30, there will be less speech: no spending above the initial state-set amount by formerly privately financed candidates, and no associated matching funds for anyone. Not only that, the level of speech will depend on the State’s judgment of the desirable amount, an amount tethered to available (and often scarce) state resources.

It seems that the rationales behind the Fairness Doctrine, and Kagan’s dissent are quite similar. So why does the former–as conceded by the current FCC chairman–stifle and chill free speech, but the latter does not?

I think this boils down to preferring some types of speech over others. I don’t know if I make that big of a distinction.