Ellen P. Goodman · June 2008
76 GEO. WASH. L. REV. 897 (2008)
The resurgent support for the fairness doctrine, which Professor Magarian thoughtfully explores in his symposium contribution Substantive Media Regulation in Three Dimensions, reflects a justifiable and deeply held dissatisfaction with the state of American media. Many believe that American media are overly commercial, partisan, trivial, and concentrated. Despite the proliferation of media outlets in recent years, critics decry what they see as either a monolithic sameness or a polarizing partisanship in mainstream media. In particular, the failure of leading media organizations to reveal errors in the justifications for the Iraq War exposed concerns that the media have systematically silenced dissenting and marginal voices. Such criticism fuels not only the fairness doctrine revival movement, but also the surprisingly strong and widespread opposition to media consolidation.
Professor Magarian suggests that a reconstructed fairness doctrine might cure some of the media’s deficiencies, thereby enhancing the contributions of media institutions to democracy and the democratic functions of the First Amendment. The erstwhile fairness doctrine required broadcasters to cover topics of public interest and to provide equal time for both sides of controversial issues that they chose to cover. The doctrine’s premise was that broadcasters had an obligation to inform the public about important issues and to provide a forum for different perspectives on the most contested of these issues. Professor Magarian’s support for the fairness doctrine grows out of his approach to the First Amendment, which emphasizes the government’s affirmative obligation to foster certain types of communication in addition to its negative obligation to refrain from censoring speech. While I am generally sympathetic to this approach, I do not agree that reviving the fairness doctrine is either necessary or useful in furtherance of First Amendment values.
In this Comment, I argue that the underlying goal of exposure to particular media content is not achievable through the fairness doctrine. In doing so, I accept for the sake of argument that it would be both legally and practically possible to implement a regulatory requirement of fairness; that is, that there remains in today’s world such a thing as “conventional mass media” to which the doctrine could apply, that the doctrine is constitutional, that it would not unduly chill speech or experimentation in new forms of content, that government is capable of enforcing fairness in media, and that neutrality is the desirable end state for every mass media channel. About all of these propositions I have considerable doubt, but even accepting them, I conclude that with respect to the third dimension of Professor Magarian’s schema—the fit between the media landscape and the regulatory goals of the fairness doctrine—coverage and balance regulations will not achieve the goal of public exposure to desired content.
