[FoRK] Mayflower and Memewar

Contempt for Meatheads jbone at place.org
Wed Mar 31 12:18:18 PST 2004

[NB:  this is not a response to Bolcer, rather an attempt to elaborate 
my position regarding the Fairness Doctrine.]

I've made comments recently and in the not-so-recent past suggesting 
that a return to the "Fairness Doctrine" in broadcast media might be a 
good thing.  This may seem to be a peculiar position for someone 
avowedly anti-regulation;  and indeed, on the surface it is.  It 
therefore demands some explanation;  I'll try to be as brief as 

= Background =

The Radio Act of 1927 defined the electromagnetic spectrum accessible 
within the geographic boundaries of this nation as a public good or 
commons owned by the people of this country to be held and managed in 
trust for them.  In 1940, Mayflower Broadcasting applied for a 
broadcast license in Boston and the application was declined in favor 
of an incumbent broadcaster;  at the time, however, the Federal Radio 
Commission (forerunner of the FCC) sharply criticized the incumbent 
spectrum licensee for partisan editorializing.  Thus was born the 
"Mayflower Doctrine" or "Fairness Doctrine" under which equal access to 
broadcast time was to be provided (and was provided, for nearly 50 
years) to alternative editorial viewpoints.

During Reagan's tenure, one stated goal of the administration and 
then-FCC chairman was the complete and final abolition of the Fairness 
Doctrine and its associated regulatory apparatus.  This effort came to 
a head when Reagan vetoed the Fairness in Broadcasting Act of 1987, 
passed by the 100th Congress in an attempt to preserve and strengthen 
editorial limitations on broadcasters on behalf of the public interest. 
  Prior and subsequent to this various challenges (e.g. Syracuse Peace 
Council v. WTVH) chipped away at the doctrine;  it had been effectively 
abandoned by 1989 for most purposes, and the rules were finally removed 
by the FCC in October of 2000 after a decade of vanishingly limited use 
and unsuccessful attempts by several Congresses to pass such 
equal-access legislation.

The challenges to the Fairness Doctrine rested for the most part on two 
legal theories.  The first and most viable theory (IMHO) was that 
increasing numbers of broadcasters and expansion of effectively 
available spectrum (e.g. cable channels, etc.) had weakened the 
argument that spectrum was a scarce resource and should necessarily 
therefore be managed and used in an apolitical fashion.  The second 
theory was designed to tug at the heartstrings of Americans;  the claim 
was that the Fairness Doctrine represented a violation of the First 
Amendment rights of "broadcasters."

= Scarcity Argument =

In the late 80s and early 90s, there was significant merit in the 
"vanishing scarcity" argument.  If indeed what was previously an 
effectively scarce public resource, such as spectrum, was increasing in 
abundance, then surely there was room for multiple editorial POVs, 
market forces, and individual discretion / selection of news sources to 
work their collective magic.

Unfortunately since the early 90s we have seen the emergence of a media 
oligarchy;  a very small number of companies or families of companies 
have effectively consolidated the editorial control of most broadcast 
(and other) media outlets in this country.  Some of these oligarchic 
concerns --- for example Rupert Murdoch's NewsCorp --- are avowedly 
political.  So while overall effective bandwidth has increased, in fact 
this media consolidation has resulted in *increased* scarcity of 
alternative reportage and decreased diversity in editorial slant on the 
news information vital to democratic decision-making.

Furthermore, there is a "hidden" public resource and common good that 
has been always been scarce:  the attention span and media consumption 
bandwidth of Joe American.  The increase in effective number of 
channels (and correlated decrease in diversity of editorial view and 
reportage) combined with a static amount of attention means that, in 
net, Joe American has over the last 15 years or so become significantly 
*less* well-informed (and more easily propagandized) in the absence of 
rules governing the political use of the public broadcast spectrum.

= Free Speech Argument =

The Free Speech argument against the Fairness Doctrine is, IMHO, a red 
herring.  First, legal opinion about the free speech rights of 
companies, organizations, etc. varies significantly.  Do such entities 
even have free speech rights in themselves, independent of their 
constituent actors?  A reasonable ideological and legal position to 
take on this is no, they do not;  or to the extent that they do, these 
are privileges rather than rights and are necessarily constrained and 
subordinate to the First Amendment rights of individuals.

Furthermore, free speech rights are not unlimited.  Even on an 
individual level free speech rights have been limited in the interest 
of the public good;  you may not cry "fire" in a crowded movie house 
unless there's a fire, for example.  The operative theory here, whether 
your agree with it or not, is that rights of the individual 
traditionally take a back seat to the common good.  Furthermore 
businesses are often constrained in their "speech" in the interest of 
the common good:  drug and other companies must be circumspect and 
accurate in statements about the efficacy of their products;  publicly 
traded companies must accurately report their financial status;  etc.

With that in mind, it seems reasonable to assume that, in the case of a 
public resource / common good like broadcast, restriction of allowable 
speech is merely a logical extension of principles that are widely 
understood and widely accepted under both common sense and legal 

Finally, with the consolidation of media outlets under the control of 
the few, what's actually happened is that e.g. Murdoch's "free speech 
rights" have been magnified while everyone else's have been diminished. 
  Imagine, if you will ad absurdum, that a single publisher held a 
governmentally-granted monopoly (say a patent) on paper;  then surely 
that publisher would have consequent restrictions and higher 
responsibilities and obligations on the exercise of that monopoly which 
he has, of course, been granted ostensibly at the will of the people.  
To fail to regulate the use of that monopoly would in fact decrease the 
diversity of expression in print;  and surely it is not the intent of 
the First Amendment to *limit* diversity of expression.

= Monopoly =

As is clear from the previous section, one of the root cause problems 
here is that broadcast licensees are monopolies, and monopolies are 
always rife with thorny problems.  Monopolies are a particularly nasty 
problem for libertarians, free marketers, and so forth --- precisely 
because monopolies are an area where theory diverges dramatically from 
practice.  (And government-sponsored monopolies are even more 
problematic.)  The free marketer will say that the market will always 
self-regulate to minimize net-negative impact of unproductive or 
destructive monopolies;  and while that is probably right in theory and 
over the long haul on average, it is not particularly helpful in 
practice or in the short term.

Markets in practice are not perfectly efficient and do always not 
self-correct in human-meaningful timeframes.  Far too much damage can 
occur in human time before a market-corrective action takes place.  
Take, for example, the pollution scenario;  an ideological free 
marketer will say that we don't need environmental regulation because 
the market (i.e. consumers, locals, etc.) will react to the polluter to 
reduce profit incentives for pollution.  In fact this may happen, but 
it may not happen quickly enough to avoid serious damage being done.  
Norms work, when they are set;  but the setting of norms is a poorly 
understood process at this point, and clearly does not always happen 
when it should.

Further the self-regulation hypothesis proceeds from the assumption 
that actors have perfect information and make perfectly rational / 
self-interested decisions.  Neither is the case usually in practice;  
collecting all necessary information to make perfectly rational 
decisions is in most cases either impossible or too inefficient to be 
practical;  thus consumers make decisions based on irrational criteria 
such as e.g. brand affinity, etc. as proxies for the complete 
information about some vendor.  Furthermore the complexity of 
long-range decision impact analysis is difficult, thus consumers and 
other actors of speculative type homo economicus often focus on 
short-term choices and cost / benefit.

The net-net is that centralized regulatory mechanisms appear to often 
be necessary in order to *ensure* the freedom of choice in the 
marketplace over time.  Without this type of mechanism, short-term 
benefits are emphasized while long-term costs are given too great a 
discount, and society gets "stuck" on local maxima / hilltops in the 
overall fitness landscape of "general welfare."

In considering regulation of editorial content in media, it should be 
clear that this type of reasoning as appropriate here as it is 
elsewhere:  the aforementioned environmental regulation, anti-trust and 
anti-collusion, fairness in reporting, and so on.  IFF you believe such 
justifications in other scenarios, then it's a small step to accepting 
the rationale in this instance as well.   As long as the overall goal 
is to preserve the degrees of freedom in the market over the long haul, 
then getting hung up on the short-term impact of limitations for 
ideological reasons is, IMHO, rather silly.

= A Chilling Effect =

It has been said that the Mayflower or Fairness Doctrine did and would 
if reinstated have a "chilling effect" on political speech in this 
country.  And indeed, literally, perhaps it would --- and perhaps 
that's just what the doctor ordered.  The political discourse has 
heated up too much to be a useful enabler of informed democracy.  Since 
the dismantling of the doctrine, historically this nation has become 
trapped in a dizzy, endless cycle of ever more vitriolic and 
content-free political debate.  The political discourse from both sides 
has evolved to take advantage of this deregulated environment and the 
result has been the evolution of a propaganda machine that would make 
the old Soviets blush and Leni Riefenstahl envious.  We are 
experiencing the Renaissance of the Big Lie, of slander, and of 
fear-mongering first-hand.  The Sultans of Spin win;  you lose.

The so-called right-wing has led this charge, but the left is close on 
its tail.  No party or interest group can claim innocence.  If the 
experience of the last few years --- on this list and elsewhere --- has 
proven anything, it's that we have too much political spin of too 
extreme a nature --- and too little sober political discourse grounded 
in facts.  I worry that if the trend continues, it will exacerbate the 
deepening and increasingly bitter political division in this country .  
The ultimate result of this could be complete destabilization.  At a 
minimum, buy stock in Pfizer (maker of Rol-Aids) and Eli Lily (maker of 

If you buy the whole argument that spectrum (or individual and 
collective attention) are public goods, then it should be quite clear 
that it is within the purview of the people to place whatever 
restrictions might be desired on the use of such goods.  I for one 
would like more information and less "data."  I fail to see how to 
achieve this in a human timeframe short of the use of centralized, 
coercive measures such as a return to some semblance of the Fairness 
Doctrine, perhaps with limitation.  But alternatives which achieve the 
same result would be welcomed.

Barring something like this then the propaganda "arms race" is doomed 
to escalate without bound, with one of only two possible outcomes:  
ultimate destabilization as the propaganda machines co-evolve and the 
collective signal-to-noise asymptotically degenerates to zero;  or 
otherwise ultimately one division will triumph through the institution 
of even-more egregious centralized political control and stifling of 
otherwise supposedly free speech (such as the RNC's FEC end-run around 
MoveOn, which of course was the genesis of this thread.*)  Chaos or 
tyranny, take your pick.

It seems to me that the principle of equal access satisfies the needs 
of the many more effectively than the alternatives while still not 
compromising the most cherished rights of the few.


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