Tuesday, July 3, 2007

For July 4th: Tossing fairness on the grill.

From Wikipedia (Emphasis mine):

While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment itself does not make specific mention of a right to association. Nevertheless, the United States Supreme Court has held that the freedom of association is an essential part of the Freedom of Speech because, in many cases, people can engage in effective speech only when they join together with others. The Supreme Court has found the Constitution to protect the freedom of association in two cases:

1. Intimate Associations. A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are known as "intimate associations." The paradigmatic "intimate association" is the family.

2. Expressive Associations. Expressive associations are groups that engage in activities protected by the First Amendment—speech, assembly, petitioning government for a redress of grievances, and the free exercise of religion.

In my home state of California, this legal concept was ultimately the downfall of the "Open Primary", in which a voter can select any candidate on the ballot, regardless of party affiliation, during the primary election. In short, a Democrat could vote for the Republican nominee, and vice-versa. The Supreme Court ultimately gave this practice a swift constitutional kick in the backside because it constituted a violation of each party's freedom to associate for political purposes. Theoretically, one party could undermine the other's nomination during the primary, and the Court ruled that each party had the right to restrict voting for its nominees to its own members.

The Fairness Doctrine, if it were revived and applied to talk radio in the way that some people suggest, would require talk radio hosts to give equal time to the "other side". Now, while listeners have the option of tuning out when someone they dislike comes on the radio, the hosts would no longer have the option of choosing their entire guest lineup for themselves. Left to himself, for example, it is unlikely that Rush Limbaugh would choose to invite Barbara Boxer onto his show. It is even less likely that Mr. Limbaugh would be invited over to Air America for a little chit-chat with Arianna Huffington.

Now why won't we ever hear Limbaugh and Huffington on the same radio waves at the same time? Because they are both a lot happier if they aren't sharing oxygen in a cramped little studio together. That's their right.

But, the fairness doctrine would force radio talk show hosts to undermine their own political speech by associating with those whose opinions are opposite their own. I fail to see where the fairness is here, whether or not such legislation would be applied equally to liberals and conservatives.

In the past, though it originally upheld the Fairness Doctrine in its original state, the Supreme Court eventually began to view it with disfavor, as something that interfered with public discourse. This, along with some use of the presidential veto pen, ultimately led to its downfall in the 80's.

Some wish to revive it, because they see that one side of the political spectrum has had greater success with AM radio than the other, and they want their own AM radio time. They forget one crucial element of the market here: the audience.

Conservative talk radio hosts did not become nationally syndicated overnight. Their audiences grew as people who (listen carefully, Senator Durbin) already shared their views gradually discovered their programs. Rush Limbaugh's listeners don't want to listen to liberal speech any more than Arianna Huffington's listeners want to hear conservatives. While the constitution protects my right to free speech, it does not require that everyone else listen to me. I can choose what I say, and I can choose what I hear.

It is ironic that the party that claims to be so in favor of "choice"--informed or not-- in one area, would be so offended by the exercise of choice in another.

Nod: Reason with Passion

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