One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.
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The First Amendment reads (in part): “Congress shall make no law…abridging the freedom of speech….” “Abridge” is legally defined as: “…(T)he making of a declaration or count shorter, by taking or severing away some of the substance from it.” The Founders prohibited the government from not just silencing speech – but from doing anything at all to in any way reduce it.
Not at all surprisingly, two government speech regulations ended up doing exactly what the Constitution was written to prevent it doing. Behold the Federal Communications Commission (FCC)-imposed Fairness Doctrine and Equal Time provision.
These inanities were inflicted on anyone who had a broadcast license on spectrum given to them by the government. (That’s over-the-air television and radio.) These regs left most such recipients regretting mightily not having just paid for the airwaves – so as to have gotten (at least a little) out from under government’s massive thumb.
These two First Amendment assaults were imposed in the name of government-defined-and-mandated speech “equality.” As usual, government fundamentally misrepresents its charter. It is required to ensure equality of opportunity – not empowered to impose equality of outcome. Anyone can say anything they want – that’s Constitutional opportunity. Anyone else receiving a government-mandated equal chance on the same platform – is unConstitutional free speech abridgment. How so? Here goes….
The Fairness Doctrine “was a policy…introduced in 1949 that required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was-in the Commission’s view-honest, equitable, and balanced.”
How’d that work in practice? So you’re a radio station owner. Your business model and imperative is to program your station – strategically planning each broadcast minute so as to maximize your audience. You of course want the most compelling people on the air.
How can you do this if every yahoo on the planet can – at any time at all – demand access to your airwaves? Yahoos who may not be…the most intriguing, articulate of individuals. And the rampant schedule volatility would render your business totally dysfunctional. You couldn’t program your station even five minutes in advance – as you would be suffering an insufferable parade of Fairness Doctrine-imposed yahoos lining up to access your microphone.
So in the name of equalized speech, the Fairness Doctrine resulted in – zero speech. Station owners would simply not inform their audiences about anything that might invoke the absurdity. How do we know the Fairness Doctrine did this? Because the Ronald Reagan Administration’s FCC voted to stop enforcing it, and months later Rush Limbaugh began his nationally syndicated radio rise – and the talk radio revolution. The results were so obvious – the Barack Obama Administration’s FCC officially removed the language that imposed the Doctrine. Not because they too thought it was awful policy – but because the politics of it were so against them.
Is this Administration finished with abridging free speech? Of course not.
The head of the Federal Communications Commission promised Thursday to enforce his agency’s regulations requiring television stations to give political candidates equal opportunities for airtime.
“The rules are pretty clear. Rules are rules,” FCC Chairman Tom Wheeler told reporters Thursday. “I hope that we have developed a reputation as folks who enforce the rules.”
Actually, you’ve developed a reputation for making up rules without any Congressional authority whatsoever – and then unilaterally imposing them. But we digress. Behold Equal Time:
…U.S. radio and television broadcast stations must provide an equivalent opportunity to any opposing political candidates who request it. This means, for example, that if a station gives one free minute to a candidate in prime time, it must do the same for another candidate who requests it.
The equal-time rule was created because the FCC thought the stations could easily manipulate the outcome of elections by presenting just one point of view, and excluding other candidates.
You think? The near-uniformly-Leftist broadcast news media bias is cataclysmic – which easily manipulates the outcome of LOTS of elections. But Equal Time doesn’t apply to news programs – and the FCC has interpreted “news programs” to include (near-uniformly-Leftist) late night shows like NBC’sTonight Show.
Which brings us back to this latest imposition of Equal Time:
Hillary Clinton’s appearance earlier this month on Saturday Night Live could trigger the so-called “equal-time” rules, as could Donald Trump’s plan to host the long-running NBC comedy show next month.
Clinton’s appearance elicited no response from the FCC. The moment Trump’s prospective appearance was announced – FCC Chairman Wheeler was suddenly activated. Well, someone should ask the Chairman how or why Saturday Night Live is regulated – while the Tonight Show is not.
That doesn’t necessarily mean Lincoln Chafee will be the next host of SNL—but it could mean that local NBC affiliates across the country will have to give presidential candidates access to equal TV time.
So in the name of equalized speech, Equal Time will also result in – zero speech. These local NBC affiliates face the same programming challenges radio broadcasters do. Like radio broadcasters, they don’t want to have their schedules constantly shredded by random, incessant, government-mandated (candidate) on-air appearances. So these affiliates will likely, ultimately demand that their parent networks stop giving airtime to ANY candidates. Thus – zero speech.
FCC Chairman Wheeler finally rid us of a Fairness Doctrine that was incredibly damaging to free speech and the marketplace. He should do the same to an Equal Time provision doing the exact same damage. Don’t enforce it – eradicate it.
Oh – and it is now abundantly clear that the FCC long ago ran out of lawful, helpful things to do. So when it is not enforcing ridiculous laws that shouldn’t exist, it is illegally making up regulations – so as to then enforce them. Idle bureaucrat hands.…
Congress should put the FCC out of all of our misery – and eradicate it.