By Robert F. Kennedy Jr., Reader Supported News, 01 March 11
s America’s middle class battles for its survival on the Wisconsin barricades – against various Koch Oil surrogates and the corporate toadies at Fox News – fans of enlightenment, democracy and justice can take comfort from a significant victory north of the Wisconsin border. Fox News will not be moving into Canada after all! The reason: Canadian regulators announced last week they would reject efforts by Canada’s right-wing Prime Minister, Stephen Harper, to repeal a law that forbids lying on broadcast news.
Canada’s Radio Act requires that “a licenser may not broadcast … any false or misleading news.” The provision has kept Fox News and right-wing talk radio out of Canada and helped make Canada a model for liberal democracy and freedom. As a result of that law, Canadians enjoy high quality news coverage, including the kind of foreign affairs and investigative journalism that flourished in this country before Ronald Reagan abolished the “Fairness Doctrine” in 1987.
Fairness Doctrine in the US
In the US, our commitment to free speech even extends to liars. None of us here want a “Truth Police”. That would be too “chilling” on our rights and liberties. The “Fairness Doctrine” ingeniously addressed the problem of biased (and lying) speech on the public airwaves not by limiting speech, but by adding more speech to it.
The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC), 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. The 1949 Commission Report served as the foundation for the Fairness Doctrine since it had previously established two more forms of regulation onto broadcasters. These two duties were to provide adequate coverage to public issues and that coverage must be fair in reflecting opposing views. The Fairness Doctrine should not be confused with the Equal Time rule. The Fairness Doctrine deals with discussion of controversial issues, while the Equal Time rule deals only with political candidates.
In 1969, the United States Supreme Court upheld the Commission’s general right to enforce the Fairness Doctrine where channels were limited, but the courts have not, in general, ruled that the FCC is obliged to do so. In 1987, the FCC abolished the Fairness Doctrine, prompting some to urge its reintroduction through either Commission policy or Congressional legislation. Following the 1969 Red Lion Broadcasting Co. v. Federal Communications Commission decision, which provided the Federal Communications Commission (FCC) with more regulatory power, the main agenda for this doctrine was to ensure that the viewers were exposed to a diversity of viewpoints.
n 1974, the Federal Communications Commission asserted that the United States Congress had delegated it the power to mandate a system of “access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue…” but that it had not yet exercised that power because licensed broadcasters had “voluntarily” complied with the “spirit” of the doctrine. It warned that:
“ Should future experience indicate that the doctrine [of ‘voluntary compliance’] is inadequate, either in its expectations or in its results, the Commission will have the opportunity—and the responsibility—for such further reassessment and action as would be mandated.
The Fairness Doctrine has been strongly opposed by prominent conservatives and libertarians who view it as an attack on First Amendment rights and property rights. Editorials in The Wall Street Journal and The Washington Times have said that Democratic attempts to bring back the Fairness Doctrine have been made largely in response to conservative talk radio.
On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet. It could also include “government dictating content policy”. The conservative Media Research Center‘s Culture & Media Institute argued that the three main points supporting the Fairness Doctrine — media scarcity, liberal viewpoints being censored at a corporate level, and public interest — are all myths.
In June 2008, Barack Obama‘s press secretary wrote that Obama (then a Democratic U.S. Senator from Illinois and candidate for President):
“ Does not support reimposing the Fairness Doctrine on broadcasters … [and] considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible. That is why Sen. Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets. ”
In February 2009, a White House spokesperson said that President Obama continues to oppose the revival of the Doctrine.
At the end of the day, the Fairness Doctrine only helped to provide more diversity. That’s not the same thing as truth. Its more like truthiness.
(By the way, it is very interesting to me that the conservative Media Research Center considers the public interest a “myth.” Conservatives tend to consider the concept incoherent or ambiguous, but I believe that says more about their own cognitive process than about the public interest.)
Broadcasters always hated the fairness doctrine for a variety of reasons, financial and ideological, but I am not sympathetic to the arguments against the doctrine based on property rights, since mass media (even cable) depends on public resources — spectrum and rights of way. But I am sympathetic to concerns about chilling free speech by placing burdens upon it–even the burdens of truth and decency.
On the other hand, I am deeply concerned about the power of mass media in our culture and its capture and use by the super-rich to promote their agenda and spew their propaganda. Our media is almost all privately owned –for sale to the highest bidder. Don’t huge media monopolies threaten our access to accurate information and undermine the democratic process itself?
We rightly prize our freedom of speech, but we also know the right to free speech comes with a responsibility. We all know about the “power of the pen”, and we all know that power can cause harm. And not just hurt feelings, but financial and physical injury. That’s why we have laws against libel, slander, criminal defamation, and incitement to violence. That’s why, as every school child of my generation knew, we can’t falsely yell “fire” in a crowded theater.
Of course when it comes to our free press, we rightly bend over backwards to be permissive. The public interest in a free press is often greater than the interests of individuals or even groups that may be harmed by journalistic errors, irresponsibility, and even outright lies. But when lies and inaccuracies become pervasive, isn’t there is a compelling public interest in demanding a certain level of honesty and responsibility, even from the free press?
Yes. The only question in my mind is how to maximize that public interest without unintended consequences. We don’t want to throw the baby out with the bath water or shoot ourselves in the foot.
Truth, Justice, and the American Way
So what would Superman do? What is the American way (or all that stuff)?
There are three ways to make truth and accuracy available in the media. They can (and should) be used in combination:
- Diversity. This is promoted by busting up or regulating monopolies. Then (using this method alone) it is “hands off” and hope for the best.
- Regulation. This is imposing penalties, as Canada has done, for lying or for causing harm. We regulate speech and visual content in the US to restrict sex and “foul” speech (the least justifiable intrusion of big government into free speech, brought to us by libertarians and republicans), but not lies. We can’t touch outright lies on media claiming to be news. The Fairness Doctrine was a relatively soft form of regulation, but it may have still been unnecessarily burdensome on private media. We need to explore new regulatory principles and methods (see “Justice”, below).
- Public media. By itself, this leaves “hands off” the private media, but offers robust public alternatives that have high standards, public oversight, and a firewall against partisan political influence.
We need methods for regulating private media in minimally invasive, burdensome, chilling ways to minimize the harm that media may do to individuals, to groups, and to civil society. What I propose is in a sense a method of private regulation. In general, I think we need to leave private media alone unless they do harm. Basically, I think we just need to make sure that media is fully accountable for civil torts as well as crimes. We need to insure that anyone unjustly harmed by media has legal standing to pursue a remedy. We need to see to it that there is an adequate statutory framework to address the most common types of injury; that there is enforcement; and that there is judicial due process. There needs to be a single point of entry to the justice system for citizens who claim to have suffered injury by the media. There needs to be public-appointed representation for citizens who can’t afford private counsel. But I think we need to go one step further and give all citizens the right to sue media for injuring the public welfare. Failing to serve the public well is not generally the same as injuring the public but in some cases it might rise to that level, especially where the public has contractual expectations of the media by virtue of spectrum, rights-of-way, tax breaks, etc..
Wherever government has authority to act, citizens should have that authority as well, at least by having standing to bring an administrative or judicial complaint or suit to force the government or court to act. But the scope of government regulatory authority should by no means be the limit of a citizen’s right to sue for an injury sustained. All tort principles also apply.
Will this open a floodgate of excessive litigation? Will big media bullies game the system or turn it against those it is intended to protect? Sure. This has been the problem with the law from day one. It has been the problem with democracy from day one. Democracy is the worst possible form of government except for all the others. What is the alternative? We have to strive to put big business and little people on an equal footing in the law, at every step in the process. Fair play is the American way, but it takes all of us, every day, in every way, to operate as a fair and just society. Legislators, courts, and regulators have always struggled with bias, manipulation, and corruption. Not surprisingly, much is known about how to minimize them. We know much more than we apply. None of this is anything new, and it is only peripheral to the proposals made here. It goes without saying.
Fair Play–the American Way
Bust up monopolies. Our people, from the woman in the street to most of the judges on the US Supreme Court, have generally opposed monopolies. Our country got its start largely due to popular opposition to a Brittish monoploy, the East India Company. Hatred of monopolies is in our DNA. But how can we have a free press if all the presses have been bought up by a few giant corporations, some of which are even based in foreign countries, just as the East India Company was? As we have had to do in many industries in the past, we must break up the giant media monopolies to protect the freedom of the press. This is just as true in the internet age as at any time in the past. The internet is the modern “press”. Though it was created by universities and public institutions, private monopolists are constantly encroaching on it, trying to capture its infrastructure and resources and turn it into a digital version of medieval feudalism. Modern monopolists talk “freedom” and “private property” but they want all the freedom and private property for themselves, not for us.
Public media, public access, public interest
Diversity and regulation are not going to fully satisfy the needs of the public interest. We need a public media system that has parity with private media.
Perhaps the best example of public media thus far is the British Broadcasting Corporation (BBC), the largest broadcaster in the world, with about 23,000 staff. In the US we have the smaller, weaker Corporation for Public Broadcasting (CPB), NPR, PBS, and their affiliated local stations. In the US, the public broadcasting system is dwarfed by private players and is under constant attack by conservatives and their corporate masters. The attacks are usually framed in ideological or fiscal terms, but their fundamental motives are political and commercial (anti-competitive). Often, public media are accused of being propaganda organs of the state. For Fox supporters to call PBS a propaganda organ is the height of hypocrisy and irony.
A fair, open, transparent, and accurate media is a prerequisite for a fair, open, and transparent society. Democracy cannot just leave all of its media needs to private, independent (undemocratic) operators and “hope for the best”. We can’t let the Foxes run the hen house if we want to keep getting any eggs.
For the fiscal year 2010, the budget of the US Department of Defense, including spending on “overseas contingency operations” was $663.8 billion.
CPB’s annual budget for fiscal year 2010 was $422 million. Of course that doesn’t count all those funds donated “by members like you” who must listen to sickening corporate promos, tag lines, and seemingly endless on-air fund-raising marathons.
I propose that a new US Public Media Corporation be funded at parity either with the military budget or with the largest private media conglomerate, whichever is greater. I am convinced that our public access to self-education resources, reliable information, and social networking and collaboration infrastructure is as important to the maintenance and security of our democracy as the military.
The funding for such a corporation should come entirely from the public treasury (no more commercials, corporate promos, or fund-raising marathons) and should be totally isolated from private, commercial, or political special interests.
I suspect that those organizing this corporation could learn a lot from the US Postal Service.
One of the first orders of business would be the provision of broadband and 4G mobile network service to every location and person in the nation. If necessary, some exiting infrastructure should be nationalized by eminent domain. The rates charged for these services would be computed on a break-even basis the way that the Postal Service computes it postage prices.
Wherever technically feasible, the organization and infrastructure built by this public media corporation should be decentralized, local, democratic and peer-to-peer. The network should be modular/cellular, massively redundant, and self-healing. There should be few if any central points of failure. This is not about command and control but about serving the public interest in all the ways the marketplace has failed to do so.
The public media corporation should address all media modalities: broadcast, satellite, mobile, and fiber; networks, platforms, applications, and tools; and last but not least, content.
The “trunk” of the public media system would be a National Public Internet (NPI). (See the related article at the end of this post)
I also think it is time for a National Public Wikipedia that would aggregate many wiki domains including the legacy Wikipedia and forks like Citizendium. This public metawiki would not intervene in legacy wiki editorial and political issues but would establish a universal presentation, user interface, and meta-data standard so it could serve as a two-way portal (editing and presentation) and a single point of access to all participating wikis. This National Public Wikipedia could also have a layer that aggregates and standardizes all the reputation/quality/confidence metrics. In conjunction with this, the same organization could also host a National Public Search Engine and a National Public Social Networking platform based on transparent open source software. Further, the same organization could maintain a distribution of Linux that would include a p2p cloud server node on which all these National Public Internet services could run in distributed fashion.
The private marketplace has had long enough to get its act together and deliver the networks, platforms, and content we want and need. It has failed miserably in comparison with what has been wanted and what has been technically feasible. The free market is great for some stuff, but it is no panacea, and if we don’t ALL see that by now its probably because we have been dumbed down by the private mass media–or because we are corrupt, self-serving liars with massive conflicts of interest between our personal greed and the public good.
Of course, in a national public media corporation, there is no constitutional protection for Lies and the Lying Liars Who Tell Them. A lying liar (such as a Rush Limbaugh) could be fired at the drop of a hat. Its a so-called “morals clause”. The same is also true for any private media corporation (such as a FOX*), and it has been all along.
That is the public truth.
* FOX = Fraud, Oligarchy, Xenophobia
PS While we’re at it lets start a US Department of Market Failures. It can receive online petitions for goods and services that are not available (for no good reason) in the “free market”, such as a notebook PC with pre-installed Linux, a lawn sweeper with metal (not plastic) gears and wheels, a pull-behind friction-powered sickle mower, a rammed-earth brick machine, photovoltaic window film and roof tiles, and so on. Then it can contract for these goods and services from small and minority-owned businesses and operate an online store for their sale and distribution.