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The First Amendment to the U.S. Constitutionrecognizes a laissez-faire policy toward speech andthe press. The Framers of the Bill of Rights wor-ried that the self-interest of politicians fosteredsuppression of speech. In contrast, some constitu-tional theorists have argued that the Constitutionempowers, rather than restricts, the federal gov-ernment to manage speech in order to attain the values implicit in the First Amendment.The government managed broadcast speech forsome time, in part through the Fairness Doctrine,which was said to promote balanced public debateand “an uninhibited marketplace of ideas.” Thehistory of the Fairness Doctrine confirms the validity of the concerns of the Framers of the First Amendment, because federal officials and theiragents used and sought to use the Fairness Doc-trine to silence critics of three presidencies. Broad-casters adapted to the Fairness Doctrine by avoid-ing controversial speech, thereby chilling publicdebate on vital matters.The Federal Communications Commission isproposing to manage broadcast speech by impos-ing localism requirements, including contentrequirements and advisory boards to oversee man-aging stations. This proposal limits the editorialindependence of license holders to serve the publicinterest. The history of the Fairness Doctrine sug-gests that federal officials who make and enforcesuch policies are more concerned with limitingpolitical debate than they are with advancing localconcerns or the public interest. Like the FairnessDoctrine, the FCC’s localism initiative poses therisk of restricting speech. Our unhappy experiencewith the Fairness Doctrine suggests that imposinglocalism mandates on broadcasters is unlikely toserve the public interest in constitutional propriety and uninhibited political debate.
 Broadcast Localism and the Lessons of the Fairness Doctrine
by John Samples
_____________________________________________________________________________________________________
 John Samples is director of the Center for Representative Government at the Cato Institute and the author of 
TheFallacy of Campaign Finance Reform
(University of Chicago Press, 2006).
Executive Summary 
No. 639May 27, 2009
 
Introduction
The First Amendment to the U.S. Consti-tution states that “Congress shall make no law . . . abridging the freedom of speech, or of thepress.” The American Founders saw theConstitution as a social contract whereby thepeople delegated some of their powers to cre-ate a government to protect their naturalrights. If the people did not delegate a power,the government could not exercise it. The orig-inal Constitution included no such powerover speech and the press. Hence, the federalgovernment could “make no law” on eithertopic. The First Amendment recognized,rather than created, this constraint on govern-ment.
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This freedom created a press whosereporting was independent of governmentcontrol. The First Amendment in this way rec-ognized that laissez faire was the only legiti-mate policy toward speech and the press.People who hold political power generally do not favor a laissez faire policy towardspeech. Allowing citizens to say or print whatthey wish leads to criticism of governmentpolicies or even electoral competition for thoseholding power. Governments prefer to man-age speech both to gain consent to policiesand to avoid losing power. Officials managespeech by prohibiting or inhibiting disfavoredideas or arguments. Public officials rarely overtly argue they should be given the powerto manage speech to restrict the marketplaceof ideas. Instead, advocates argue that suchcontrol would advance important values likethe public interest or democracy—ideals thatare said to be slighted by the laissez fairedemands of the First Amendment. We shouldwonder, however, if self-interested politiciansare likely to manage speech to achieve somecommon purpose or ideal. Might they notsimply suppress speech to serve their own self-interests in policy or electoral success?Congress and the Federal Communica-tions Commission have long managed speechbroadcast over the public airwaves. From 1949to 1987, the FCC enforced the Fairness Doc-trine, which required broadcasters who pre-sent a point of view on public matters to offeran opportunity for a contrasting view to beheard. By its nature, the Fairness Doctrinecompromised the editorial independence of broadcasters. Following the 2006 and 2008elections, several members of Congress seemintent on reviving the Fairness Doctrinethrough legislation or regulation.
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 A return tothe Fairness Doctrine per se seems less likely for the near future. Several proposed regula-tions, however, may serve as a close substitutefor the Fairness Doctrine.
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In particular, for five years the FCC hasbeen investigating whether “broadcasters areappropriately addressing the needs of theirlocal communities.”
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It concluded that theresponsiveness of broadcasters has been lessthan ideal, and that FCC policies shouldchange to foster more responsiveness to localaudiences. To improve licensees’ performance,the FCC has proposed that they should berequired to meet quarterly with “a permanentadvisory board made up of officials and otherleaders from the service area of its broadcaststation.”
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It is also seriously considering re-quiring broadcasters to devote specifiedamounts of time to local programming.
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These “localism” mandates are similar tothe Fairness Doctrine in three ways. First, advo-cates see both policies as solutions to the same“problem”: the alleged domination of broad-casting by a single point of view—political con-servatism. Jacob Hacker and Paul Pierson com-plain that without a fairness mandate “theairwaves are now flooded with highly partisanstatements on matters of national importance,much of it voicing an a 
vowedly right-of-center view
” [emphasis added].
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Similarly, a recentstudy of talk radio by the Center for AmericanProgress concludes that conservatives domi-nate the format. In response, the authors callfor “steps to increase localism and diversify radio station ownership to better meet localand community needs.”
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Second, both policiescompromise the editorial independence of broadcasters to attain their goals. The FairnessDoctrine placed editorial judgment under theinfluence of the FCC, while localism seeks tomake broadcasters accountable to local adviso-
2
People who holdpolitical powergenerally donot favor alaissez-fairepolicy towardspeech.
 
ry boards. Third, both policies assume thatbroadcasters responding to market signals willnot satisfy the public’s desire for “fairness” or“localism” without government intervention.But localism and the Fairness Doctrinediffer in one important respect. The FCCenforced the Fairness Doctrine for almost 40years, a history that informs how the policy actually worked in practice. Mandated local-ism for broadcasters has not yet beenenforced by the agency.
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Given the similari-ties of the two policies, an assessment of thetheory and practice of the Fairness Doctrinemay provide some insight into likely conse-quences of adopting broadcast localism.
The Theory of Managed Speech
The systematic management of speech by the federal government began during the early days of radio in the 1920s. As the market forradio developed and the number of stationsincreased, interference among radio transmis-sions became more and more of a problem. After some debate, Congress enacted theRadio Act of 1927, which created the FederalRadio Commission, an independent agency with the authority to license radio stations.Sections 18 and 29 of the law denied the new agency power to censor broadcasting. Thosesections also required licensees to grant equaltime to candidates for office and proscribedobscene or profane language over the air-waves. Section 11 of the 1927 law required thecommission to grant a license if “public con- venience, interest, or necessity would be servedby the granting thereof.”
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Section 13 prohib-ited the commission from licensing “any per-son or corporation which had been foundguilty of monopolizing or attempting tomonopolize radio communication.”From early on, the government seized thepower to decide who would communicate inthe new medium of radio and how they wouldcommunicate. The federal government wouldmanage speech in these ways to preclude inter-ference among transmissions, prevent privatemonopolies, and realize the public interest. In1934, Congress subsumed the Radio Act intoa new communications law that also createdthe Federal Communications Commission.The earlier framework of oversight of speechcontinued in the new law, thereby empower-ing the FCC.The FCC first set out the Fairness Doctrinein its 1949 report on “Editorializing by Broadcast Licensees.” Congress endorsed thedoctrine 10 years later as an amendment tosection 315(a) of the Communications Act of 1934. The policy required that if a broadcasterpresents one viewpoint, it would have “toafford reasonable opportunity for the discus-sion of conflicting views on issues of publicimportance.” When the FCC found that a broadcaster had violated the Fairness Doc-trine, it usually ordered the party in questionto present opposing viewpoints. If the broad-caster refused to present another viewpoint,the FCC had the power to revoke or deny itslicense. Violating the Fairness Doctrine thuscould easily complicate continuing in thebroadcasting business.
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The Supreme Court upheld the constitu-tionality of the Fairness Doctrine in 1969. In
 Red Lion Broadcasting Co. v. FCC 
, Justice ByronWhite’s majority opinion argued that thescarcity of opportunities to broadcast speech justified government regulation of speech inthe public interest. The Fairness Doctrineessentially required broadcasters to act astrustees for the airwaves for those who couldnot gain access. To assure broadcasters metthose obligations, the FCC could force them toair views they otherwise would avoid. To justify such coercion, Justice White focused on therights of listeners and the goals of the First Amendment as opposed to the rights of speak-ers and the language of the Constitution:But the people as a whole retain theirinterest in free speech by radio andtheir collective right to have the medi-um function consistently with theends and purposes of the First Amendment. It is the right of the view-ers and listeners, not the right of the
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The systematicmanagementof speech by the federalgovernmentbegan duringthe early daysof radio inthe 1920s.
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