NASHVILLE, Tenn. (BP)–Conservative attorney Jay Sekulow hosted a television program during the 1980s under the watchful eye of the now-extinct Fairness Doctrine, and he doesn’t want to go back.
Every program had to be divided equally when discussing controversial issues.
“I had representatives from [People for the] American Way, the ACLU, National Organization for Women on the broadcast — which, if you’re doing a Hannity & Colmes type of [program], it would be one thing, but we really weren’t trying to do that,” said Sekulow, chief counsel for the American Center for Law and Justice. “We were trying to do more of an educational [program].”
Sekulow made his comments Feb. 9 during a panel discussion with other conservative leaders at the National Religious Broadcasters Convention. The NRB — an association of mostly conservative Christian radio and television communicators — was meeting for the first time since President Obama took office and Democrats strengthened their legislative majorities. It also was the first meeting in years in which the re-implementation of the Fairness Doctrine — or a similar regulation under a different name — seemed a real possibility. In recent weeks several Democratic senators, including Tom Harkin of Iowa and Debbie Stabenow of Michigan, have expressed interested in bring the Fairness Doctrine back.
Repealed by the FCC in 1987, the Fairness Doctrine required TV and radio broadcasters to give equal time to both sides of a controversial issue. In repealing the rule, the FCC said at the time that instead of encouraging stations to present both sides of issues, the Fairness Doctrine had led those stations to avoid controversial issues altogether.
Conservative talk show host Sean Hannity has made the Fairness Doctrine a target on his broadcasts, and his website has a picture of Stabenow, along with her Washington office phone number. Hannity repeatedly has said he won’t let the government force him to change his program. But that may not matter, said panelist and conservative attorney Larry Secrest, who predicts that stations simply would drop Hannity’s program and others like it rather than face FCC scrutiny.
“[Hannity] would be willing to fight the good fight, but the stations that he’s carried on may not be willing to fight the good fight,” Secrest said. “Many of those are not religious stations and they’re not even owned by conservative owners. They’re just profit-maximizing.”
The panel agreed that Christian talk radio could be a target under the Fairness Doctrine, since much of its content revolves around often-controversial cultural issues such as abortion and homosexuality. Christian radio flourished after the repeal of the old doctrine.
Sekulow envisioned a scenario in which a radio program such as “Janet Parshall’s America” would have to invite a pro-choice leader on the air in order to discuss pro-life issues — with all of it being paid for by listener contributions. Much of Christian radio is listener-funded.
“The stations that were hurt the most, historically, were conservative Christian, including religious stations,” Secrest said. “So I think you could already anticipate that religious stations would be targets of complaints, and you would see a lot of them heading for the hills.
Said attorney Ashton Hardy, who served as the panel moderator: “For a Christian station … if you carry a preacher who’s broadcasting on the ills of homosexuality or same-sex marriage or abortion … you’d have to go out and find somebody with an opposing point of view and let them reach the same size audience.”
If the Fairness Doctrine was re-implemented, conservatives’ only hope would be to see it overturned in federal court. If the current U.S. Supreme Court considered it, “we’d probably win,” Sekulow said.
“The problem is that it will take three or four years [for a case to reach the high court],” he said. “It’s going to depend a lot on the [makeup of] the court.”
Re-implementation of the Fairness Doctrine could make for some strange alliances. Nadine Strossen, president of the American Civil Liberties Union from 1991 to 2008, spoke at the NRB Convention and said she believes the Fairness Doctrine would violate the U.S. Constitution. Pepperdine University School of Law Dean Kenneth Starr, who appeared on stage with Strossen during a discussion about First Amendment issues, agreed.
The NRB and ACLU often are at odds on controversial issues.
“Every study that’s been done … shows that it led to a decrease in the discussion of controversial issues,” Strossen said. “It had such a chilling effect [on speech]…. It ended up having exactly the opposite of its intended effect.”
The ACLU supported the Fairness Doctrine when it was the law but hasn’t taken a position on its possible re-implementation. Strossen believes the arguments in favor of the doctrine are weaker than they’ve ever been, thanks to the proliferation of the Internet.
“I am completely confident that when and if the ACLU revisited this issue — which it would only do if the government changes its policy — that the ACLU would change course,” she said. “… Thanks to the Internet, all you need is a modem and you can start your blog and you don’t need to be a wealthy individual in order to get your views out there. So I think practically, factually, the momentum is in favor of freedom of the press against all content controls.”
President Obama’s staff said during the campaign that he does not support bringing back the Fairness Doctrine. The WhiteHouse.gov website says nothing about the doctrine but says Obama’s goals are to “encourage diversity in the ownership of broadcast media, promote the development of new media outlets for expression of diverse viewpoints and clarify the public interest obligations of broadcasters who occupy the nation’s spectrum.” Some of the panelists said the website — as well as Obama’s past statements — contain “code words” supportive of Fairness Doctrine concepts.
“The president said he opposed the Fairness Doctrine,” Sekulow said. “Let’s remind him of that.”
Among other issues, the panel also discussed:
— The U.S. Supreme Court’s usage of foreign law in their opinions — a concept frowned upon by the panelists. Two attorneys, Sekulow and the Alliance Defense Fund’s Erik Stanley, said part of the solution is to try and influence European law and European rulings — the continent which is the primary source of foreign law when the court does use it.
“It has to be a two-pronged approach,” Stanley said. “We just can’t leave Europe to Europe, because the Supreme Court may very well look at it and import it into our own constitutional structure. We’ve got to attack it there and also attack it here.”
Said Sekulow: “If that’s the deck we’ve got, then we need to deal with it by influencing the law in Europe.”
— A possible Supreme Court vacancy. Supreme Court Justice Ruth Bader Ginsburg, 75, had surgery for pancreatic cancer recently.
“My guess is she probably retires at the end of the term,” Sekulow said. “… The list of the logical nominees that President Obama would put forward would make Ruth Bader Ginsburg look like a conservative.”
Michael Foust is an assistant editor of Baptist Press.