Our View - Friday

Pulling the plug

Fairness Doctrine should rest in peace

We all heard from our parents that life isn’t fair — and they were right, because it frequently isn’t. But we should all applaud last week’s defeat of an attempt by congressional Democrats to revive the so-called Fairness Doctrine — broadcasting rules that stifled free speech by insisting that radio and television stations give “equal time” to any and all political opinions that went out over the public airwaves. It’s just one example of what can go awry when the state attempts to regulate the marketplace of ideas, or takes on the task of promoting a subjective and nebulous concept such as “fairness.”

The House of Representatives last week voted 309-115 to prohibit funds from being spent by the Federal Communications Commission on restoring the doctrine, which was tossed out in 1987 by the Reagan administration. We’re hopeful that’s the end of it. But the idea still has some powerful proponents in the U.S. Senate, including California Sen. Dianne Feinstein and former presidential candidate John Kerry, so it’s not dead yet.

Some liberal politicians are irked by the popularity of conservative talk radio, and the failure of left-leaning alternatives such as Air America Radio to catch on has increased these frustrations. This led Feinstein to complain recently that conservative radio hosts push people to “extreme views without a lot of information.” The solution, she and others said, was resurrecting the doctrine from its well-deserved grave.

According to the Museum of Broadcast Communications, the Fairness Doctrine grew out “of concern that because of the large number of applications for radio stations being submitted (in the 1930s and ’40s) and the limited number of frequencies available, broadcasters should make sure they did not use their stations simply as advocates with a singular perspective. Rather, they must allow all points of view. That requirement was to be enforced by FCC mandate.”

But that goal is as futile as it is dangerous.

How much of what is said on a topic is enough? How many sides are there to an argument? Must a conservative talk host have a liberal co-host? Do radio callers who disagree with talk show hosts count as “the other side?” Must every station with four conservative talk shows add four liberal talk shows? Who decides? Is that fair?

As columnist Nat Hentoff points out in his book, “Ethics and the Press,” the doctrine actually had a chilling effect on political speech. He cites numerous examples of broadcasters that changed or limited their programming rather than deal with the full scope of controversy. And smaller stations were constrained financially from turning over free air to anyone demanding “equal time.”

Rather than risk running afoul of FCC fairness enforcers, many stations simply, and quite smartly, refused to deal with issues and instead stuck to fluff.

There are practical as well as philosophical reasons why the doctrine doesn’t work. In a news and information market that today features more than 3,000 radio stations, hundreds of cable TV stations, satellite radio, the Internet and the blogosphere, the public has plenty of options to hear competing points of view. As letter writers and Gazette.com users have pointed out, there’s no shortage of liberal viewpoints expressed in, and by, the “mainstream media.”

Where freedom of speech and freedom of the press is respected, the public marketplace decides — not politicians and certainly not bureaucrats at the FCC.

During a week when we celebrate the freedoms secured for us more than two centuries ago, we also should take a moment to celebrate this lopsided vote protecting one of the most fundamental of our freedoms from the stifling hand of government censors. Any time elected representatives opt by nearly a three-to-one margin to preserve freedom, rather than come down on the side of more government power, it’s cause to celebrate.

Learning from experience

It might not sit well with Wal-Mart, Costco and some Internet retailers, but the Supreme Court’s decision last week to reverse a 1911 precedent and allow what is called minimum retail pricing or vertical pricing — or at least not to conclude automatically that such schemes violate antitrust laws — was a welcome demonstration of economic literacy.

Minimum retail pricing is when a manufacturer tells retailers they may not sell a product for any less than a specified price. It is mostly applied to high-end items, to products that might require special training or special service to sell properly, or to new products that require some introduction before consumers are persuaded to buy them. The court in 1911 declared such agreements an automatic violation of antitrust laws. Some companies, however, have tried to keep such agreements in force informally, by refusing to sell again to stores that discount their products.

That’s what happened in the case of Leegin Creative Leather Products v. PSKS Inc. Leegin made high-end leather products under the Brighton label and required retailers not to discount them because it wanted to be sure retailers had sufficient margin to keep stocking their products. A store in Texas decided to discount the merchandise and Leegin refused to sell again to the discounter. The discounter sued and won. The Supreme Court reversed the decision.

The high court didn’t say all minimum-pricing schemes will automatically be permitted from now on, but specified that future disputes should be decided on the merits, on a case-bycase basis. That could create some confusion, since courts aren’t expert at economic analysis, but the ruling will permit more flexibility in the market than had been the case. The court was wise to reconsider such a longstanding precedent.