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Whitewashing Diversity: The Conservative Attack on the ''Stealth Fairness Doctrine''
Allison Perlman Television New Media 2012 13: 353 originally published online 24 October 2011 DOI: 10.1177/1527476411423676 The online version of this article can be found at: http://tvn.sagepub.com/content/13/4/353

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Whitewashing Diversity: The Conservative Attack on the “Stealth Fairness Doctrine”
Allison Perlman1

Television & New Media 13(4) 353­–373 © The Author(s) 2012 Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/1527476411423676 http://tvnm.sagepub.com

Abstract This article examines the relationship between conservative discourse, racial politics, and broadcasting policy in the United States. It explores how conservative media personalities, pundits, and activists in 2009 claimed that efforts to increase broadcast diversity were, in actuality, attempts by liberals to reinstate the Fairness Doctrine—a policy that had required broadcasters to air both sides of controversial issues—through “the backdoor.” Reframing media diversity policies as masquerades to silence conservative voices, conservatives both denied the existence of barriers to participation for people of color and extended a narrative of conservative victimization. In contextualizing and analyzing the crusade against the “stealth Fairness Doctrine,” this article demonstrates how media policy discourse has operated as a site where conservative claims of injury occlude the continued existence of structural barriers to people of color and deny the importance of racial difference in the United States. Keywords broadcasting, race, media policy, conservatives, public interest

In the months leading up to and following the 2008 presidential election in the United States, conservative media outlets sounded the alarm that the return of the Fairness Doctrine was imminent (Franc 2007a, 10; Franc 2007b, 10; Pence 2007, 1; Rowland 2007; Scarborough 2008, 18; Wooley 2008, 10; Darling 2008, 15; Anderson and
1

University of California–Irvine, USA

Corresponding Author: Allison Perlman, 202 Gabrielino Dr., Irvine, CA 92617 Email: ajperlman@gmail.com

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and racial politics in the United States. While there was little expressed political will to reinstate this rule. Yet the conservative attack on media diversity initiatives—on talk radio broadcasts. Simultaneously. conservatives were among some of the loudest voices asking for the rule’s retention. cemented by the election of Ronald Reagan in 1980. In 2009. I hope to expand how media scholars interpret the relationship between conservative politics. conceding it unlikely that Democrats would resurrect the Fairness Doctrine in name. This article historicizes and analyzes the “stealth Fairness Doctrine” crusade. MacLean 2006. When the Federal Communications Commission (FCC) repealed the Fairness Doctrine in 1987. Ironies abound in this recent collision of conservative discourse. And the most recent efforts to encourage minority ownership of broadcasting stations could reasonably be described as tepid and would not threaten the viability or future of the conservative talk sector. 2014 . which the Federal Communications Commission (FCC) repealed in 1987. conservative activists and media personalities insisted that once Democrats regain power. 18). ushered in an era of increased conservatism on race relations that was facilitated by concurrent shifts in media representation. Media scholars have examined how the rise of the right. Gray 1995).sagepub. 225-61). which conservatives insisted were not legitimate attempts to bring people of color into a sector that historically had discriminated against them but rather masquerades to put conservative stations into liberal hands. race relations. they would jump to bring back the Fairness Doctrine as a way to silence conservative voices.354 Television & New Media 13(4) Thierer 2008.” At the top of their list of duplicitous media reforms were efforts to further diversity through increased minority ownership of broadcasting stations. and American media. but also to prop up a broader narrative of victimization that denies the existence of prejudice or oppression toward any group. In emphasizing the impact of the contemporary conservative movement on the framing of media policy debates. had required broadcasters to address controversial issues and to provide time for both sides of the controversy. As television newscasts provided recurring discursive tropes of black and brown criminality and the undeserving black poor. and in the efforts of conservative activist groups—functioned not only to make invisible the barriers to participation of people of color in the broadcasting sector and to render claims for diversity suspect. the circulation of what Herman Gray (1997) labels the “civil rights Downloaded from tvn. The abysmally low rates of minority ownership of broadcasting stations resulted from three decades of conservative jurisprudence and from the impact of a “marketplace approach to regulation” ascendant since the 1980s. in the pages of conservative publications. The Fairness Doctrine.com at University of Missouri-Columbia on January 20. conservatives identified a number of media policy initiatives as attempted implementations of a “stealth Fairness Doctrine. save conservatives. and therefore outside of the same civic protections afforded to white middle-class Americans (Entman and Rojecki 2000. they propped up a conservative order that rendered people of color as threats to the civic body. broadcasting policy. This assault on media diversity initiatives extended a decades-long conservative strategy of invalidating the legitimacy of rights–claims made by people of color and displacing them with their own claims of injury (Kruse 2007.

3). Their work additionally outlines how law and policy continually have operated as technologies of white privilege.Perlman 355 subject”—the beneficiary of the struggles of the civil rights era. It joins the body of scholarship that rejects the view of the policy-making process as primarily a series of technocratic or administrative decisions in which policy makers deploy rational scientific methods. and criminal justice as sites of continued discrimination. The “stealth Fairness Doctrine” campaign demonstrates how media policy discourse is a critical space where competing understandings of political injury are aired and legitimated. emblematized by The Cosby Show’s Huxtable family—similarly reassured that racism was a thing of the past and that economic and social mobility was possible for all Americans. conservatives. takes the legal and policy arena as its central object of analysis. isolationism. In contrast. By contextualizing and narrating the crusade against the “stealth Fairness Doctrine. their analysis could capably have been extended to the media and to the role of conservatives in occluding continued forms of discrimination through their rhetoric of the “liberal media. economic libertarianism. media policy in the United States has operated as a forum where structural power is given or denied and rights claims articulated and validated. In addition to being a location where media’s social and political roles and institutional arrangements are constituted (Streeter 1996). and while they particularly challenge the ideas of conservatives like Dinesh D’souza. one ostensibly achieved by the legislative victories of the 1960s. Downloaded from tvn. The term “conservative. since World War II has been used as an umbrella term that covers a number of often contradictory ideological positions: antistatism. and where racial hierarchies are challenged and maintained. While they focus on housing. education.” as George Nash noted (1976). to the field of media policy. This article. 2014 . Whitewashing Race repudiates the commonsense assumption that the civil rights era solved the United States’ racial problems. employment. The multiracial buddy genre and the multicultural casts of film and television series similarly communicated the arrival of interracial cooperation and the symbolic death of racial discrimination and segregation (Guerrero 1993. I do not suggest that conservatism in the United States is a monolithic entity. Though this article puts conservatives and conservative ideas in the center of its analysis.” a discourse which maintains that the only group victimized and ignored by media companies and their federal regulators are.sagepub. Highlighting how conservative intellectuals have circulated the myth of a color-blind society. in contrast. governed by expert knowledge. voting. It specifically applies the insights of Michael Brown et al. or compromised” (Freedman 2008. in their Whitewashing Race: The Myth of a Color-Blind Society (2003). social traditionalism. and Shelby Steele. in fact. Stephen and Abigail Thernstrom. it views media policy as broadly “a decisive arena in which different political preferences are celebrated.. contested. the authors of Whitewashing Race illustrate how such claims ignore the cumulative impact of racism’s history in the United States and the continuing forms of structural and institutional racism that persist. Fuchs 1993).com at University of Missouri-Columbia on January 20. to regulate already existing media technologies.” this article examines the far-reaching political work accomplished by policy discourse.

the Supreme Court affirmed the constitutionality of the Fairness Doctrine in its Red Lion decision. a conservative radio station was the casualty of it. an impassioned advocate of Downloaded from tvn. yet suggests that the campaign over the “stealth Fairness Doctrine” was one such moment of cohesion. the Fairness Doctrine both obligated licensees to dedicate airtime to controversies of import to their communities of service and to allow time for viewpoints on both sides of the controversy.sagepub. 2014 . did not renew Bob Shuler’s license in 1930. My use of the term conservative throughout this article acknowledges the instability of the word. The Fairness Doctrine was to promote the public interest by ensuring that broadcast stations were not bully pulpits for their owners but spaces where multiple perspectives were provided to listeners. it was not until the 1980s that repeal gained traction in the FCC. broadcasters were justifiably subject to public interest requirements. In addition. In 1969. were paramount in a media sector utilizing a scarce resource—the airwaves—where as a condition of receiving a license. Though legislators had tried to eliminate the Fairness Doctrine a number of times during the 1970s. claiming his incendiary broadcasts failed to serve the public interest (Powe 1987)—McIntire holds the distinction of being the only broadcaster to lose a license based solely on a Fairness Doctrine complaint. and so on. As Heather Hendershot (2007) has illustrated. historians have told conflicting origin narratives for the contemporary conservative movement. Despite the multiple movements and ideological positions included under “conservative. one premised on both a conservative narrative of victimization and hostility to state action to address racial discrimination. but ironically eliminated from the airwaves a political perspective otherwise absent from the community of service. FCC Chair Mark Fowler. the Commission not only removed a right-wing speaker. from the 1960s until its repeal in 1987. Congress. in which hostility to integration was reframed in the language of property rights and individual liberty (Kruse 2007. Prologue: Conservatives and the Fairness Doctrine Conservatives have long had a stake in the Fairness Doctrine. rather than broadcasters. arguing that the speech rights of listeners. the precursor to the FCC.356 Television & New Media 13(4) neoconservatism. Adopted in 1949.” conservatives historically have united around a shared antagonism toward the media and media policy initiatives have functioned as sites of movement cohesion. and the White House.com at University of Missouri-Columbia on January 20. seeing its genesis as an intellectual rejection of postwar liberalism (Nash 1976). Lassiter 2007). or as emerging from white responses to the civil rights movement. as a middle-class social movement in which its participants felt marginalized from mainstream politics and culture (McGirr 2001). as many organizations targeted media images and practices as part of their broader struggles for social change. While conservatives also deployed the Fairness Doctrine in their media activism. While McIntire’s was not the first right-wing radio station to lose its license—the Federal Radio Commission. was crucial to the media reform activism of American social movements. The Fairness Doctrine. when Carl McIntire lost his WXUR license in 1973. one who espoused views heard as anti-Semitic and racist.

Schlafly (1987) testified in favor of the Fairness Doctrine. By the end of the decade. became more widespread over the 1980s. Such a view has been a mainstay of postwar conservative discourse. others joined forces with progressive activists to retain the rule. Conservative talk radio in particular increased in popularity at the end of the decade. though Schalfly and Irvine were on the same side of the Fairness Doctrine issue as progressive activists like Ralph Nader. which conservatives partially attributed to unfair media coverage. and President Reagan had vetoed. 484-92). Gordon Liddy offered political commentary on stations that no longer had a regulatory obligation to provide alternative perspectives (Douglas 2002. a bill that would have legislated the rule (Smith 1999). Significantly.com at University of Missouri-Columbia on January 20. Schlafly asserted that the Fairness Doctrine had been the only tool in her arsenal to get broadcast attention to her objections to the Equal Rights Amendment (ERA) during its ratification process. as Susan Douglas (2002) has demonstrated. NBC) as “robber barons of modern America. in the absence of the rule.sagepub. While many lined up behind Fowler and Packwood. their enthusiasm for the policy stemmed from their perception that the mainstream media was corrosively liberal. the elimination of the Fairness Doctrine affected the trajectory of AM talk radio. both in articles and in congressional testimony argued against the elimination of the Fairness Doctrine. had used the Fairness Doctrine to request airtime to counter liberal views. Schlafly and Irvine back in 1987 could not have anticipated how the repeal of the Fairness Doctrine would enable the rise of conservative talk radio. vice president Downloaded from tvn.” he wrote. Significantly. AIM. a format that. Similarly. Senator Bob Packwood similarly convened hearings in the early 1980s to investigate repeal of the Fairness Doctrine. “It is foolish. “to think that they suddenly would become addicted to fairness if all legal restraints on their uninhibited exercise of power were removed” (16). Attention to alleged political biases in the mainstream media accelerated after Republican presidential nominee Barry Goldwater’s 1964 colossal defeat. Importantly. this rule was crucial for conservative voices to poke through the liberal hegemony of American broadcasting.Perlman 357 media deregulation. The FCC repealed the Fairness Doctrine on August 4. 1987. for Irvine. conservatives were on both sides of the Fairness Doctrine issue at the time of its repeal. arguing that it served “as a small restraint on the monopoly power wielded by big TV media. who exercise monopoly control over news and information” (247). as hosts like Rush Limbaugh and G. Irvine. The two most vocal of this latter camp were Reed Irvine and Phyllis Schlafly. the founder of Accuracy in Media (AIM). It was unimaginable to Irvine (1987) that. 2014 . a little over a month after Congress had voted for. held hearings in 1985 to document the impact of the rule on the performance of broadcasters. As Byron York (2007) later would write in a story in the National Review. which itself would provide media exposure to conservative views and balance to the perceived overwhelming liberalism of the mainstream media (34). which had charted alleged liberal bias in the mainstream media since 1969. CBS. and then especially around the 1992 election. broadcast networks would show any commitment to fairness in their coverage of public issues.” Labeling the three major networks (ABC.

and has issued myriad publications detailing evidence of alleged liberal bias to conservative pundits. have operated to unite conservatives of varied priorities and ideological positions out of a shared sense of victimization and exclusion. and on air commentary of Limbaugh. the media pose a threat to traditional values. Brent Bozell’s Media Research Center (MRC). Importantly.com at University of Missouri-Columbia on January 20. The emergence of conservative publications in the 1950s.sagepub. one that consistently emphasizes how the mainstream press distorts its coverage to advance a liberal agenda. Attacks on the liberal media. and publications. has monitored the newscasts of broadcast and cable networks.’s long-running public television program The Firing Line was a formative experience for a number of contemporary prominent conservatives (Lowry 2007). 2014 . Fox has joined conservative AM radio hosts and print publications like the Wall Street Journal to form what Kathleen Hall Jamieson and Joseph Cappella (2008) have labeled an “echo chamber” of conservative perspectives on current events. Within this mediascape. was crucial to the formation of the postwar right. but also inspired what Lisa McGirr (2001) has called “kitchen table activists” to embrace conservative principles and mobilize politically. the commitment to small government and conservative fiscal policy. In the newsletters of the MRC. from the 1980s onwards it has become a galvanizing issue and rallying cry for the right. Conservative publications not only created a conservative public sphere. and a foreign policy that prioritizes the spread of American-style capitalism and democracy abroad (Perlman 2007. Watching William F. The rise of contemporary conservatism after World War II has relied on both a use and a vilification of the media. While the “liberal bias” of the mainstream media has preoccupied American conservatives since the 1960s. 168-207). like the National Review and Regnery Books. successfully balancing out the political imbalance of the media. The MRC’s research has influenced the media critiques of prominent conservatives like Ann Coulter and Bernard Goldberg. L. and informs the attacks on the mainstream media aired on conservative talk radio and on the Fox News Channel. These spaces were imagined to be necessary to counter the hostility of the mainstream media to conservative perspectives and thus simultaneously circulated conservative positions while attesting to the bias of existing media Downloaded from tvn.358 Television & New Media 13(4) Spiro Agnew (1969) was railing against the “tiny. as the rise of conservative talk radio and Fox News in the 1980s and 1990s would be to its expansion. and Irvine’s Accuracy in Media was monitoring the media for evidence of liberal bias. a conservative campus group formed in 1960 that has produced prominent leaders of the conservative movement (Andrew 1997). and his National Review was not only an important organ of conservative thought but an essential supporter of Young Americans for Freedom (YAF). founded in 1987. books and commentary by Coulter and Goldberg. subscribers. members of Congress. where right-leaning intellectuals and pundits could speak to one another. alongside mainstream print publications. Buckley Jr. the alleged liberalism of the mainstream media has been positioned as hostile to all stripes of conservatism. conservative outlets have been positioned as the antidote to the overwhelming liberal bias of most news outlets. enclosed fraternity of privileged men elected by no one” that controlled the media. much like attacks on the liberal academy.

Perlman 359 organizations. the impact of media policy on conservative voices. A21). while advocates reinforced that concentrated levels of ownership required some means to ensure that diverse voices were provided a platform. but conservatives. By the 1990s. the discursive field on the Fairness Doctrine had shifted. as pressure for repeal mounted. interpreted as in themselves a pernicious form of racism. would structure conservative attacks on the Fairness Doctrine in the decades to come. D3. advocates as a protection of the speech rights of broadcasters’ publics to hear competing viewpoints. as debates over the Fairness Doctrine in the 1980s attested. 10. radio talk show host Rush Limbaugh galvanized his listeners to contact their congresspersons to oppose the bill. However. Roberts 1994. and that its detractors mischaracterized what its impact would be (Sohn and Schwartzman 1994. From the 1960s through the policy’s repeal. the “Hush Rush” campaign successfully derailed this attempt to bring back the Fairness Doctrine and showed conservatives that they could capably defeat efforts at media reform by embracing a rhetorical strategy that reframed initiatives as attempts to quell conservative voices and violate the speech rights of members of the political right. that policy makers hid behind the seemingly neutral language of regulation to attack their political adversaries. or members of the public. Dubbing it the “Hush Rush” bill. This logic. in a public campaign that would set the terms on future debates over the Fairness Doctrine. The most substantial push for the Fairness Doctrine occurred in 1993 and 1994. The party injured was no longer broadcasters writ large. opponents of the Fairness Doctrine enhanced their position by gesturing to the proliferation of media outlets and technologies that obviated this incursion on broadcasters’ speech rights. as the next section discusses. This assertion.com at University of Missouri-Columbia on January 20.sagepub. Their “stealth Fairness Doctrine” campaign would unite this framework with an attack on public policies addressing racial discrimination. The “Hush Rush” campaign transformed this discourse from one premised on how to locate speech rights in broadcasting policy to one that interpreted this media policy as a tool specifically designed to silence a political minority. advocates and opponents disagreed on how to interpret the First Amendment as it related to broadcasting. In the years immediately following the Fairness Doctrine’s repeal. legislators introduced bills to reinstate the rule in each congressional session (Gleason 1991. Despite repeated assertions that conservative radio was not the bill’s target. Corry 1993. became enshrined in media law concurrently with the attacks on the Fairness Doctrine. In the 1980s. after the election of Bill Clinton and attending hopes that a Democratic administration would be more sympathetic to the legislation than the Reagan-Bush White Houses had been. Whereas the assumption of the mainstream media’s liberalism had been a critical part of postwar conservatism. Limbaugh announced that the intention behind its return was to push him and fellow conservatives off the airwaves (Wharton 1993a. 2014 . 50). 291). 57. Opponents to the rule understood it as a violation of the speech rights of broadcasters. Wharton 1993b. would divide freemarket enthusiasts who saw regulations as unnecessary from advocates like Irvine and Schlafly who understood them to be needed checks on the political bias of the media. Downloaded from tvn.

the FCC (1978) adopted three rules to expand the number of minorities who were licensees. 2014 . and with the support of the federal courts. Horwitz 1997). not just in misreporting on the violence.” Over the course of the 1980s. stories. or what he and Daniel Brenner (1982) referred to as the “marketplace approach to broadcast regulation. it would not be until the 1980s when this intention would be enshrined in policy decisions. and repealed the Fairness Doctrine. WBLT’s license was revoked and awarded to African American residents of Jackson. These attacks of the 1980s and 1990s replicated and extended the ideological assumptions that had led to the repeal of the Fairness Doctrine and fused them with a neoconservative position on racial discrimination and reverse racism (Crenshaw 1988. the appellate court ruling. In the Office of Communication of the United Church of Christ (1966) case. issued its report on the decade’s race riots. Mississippi. Over the long term. in the wake of the Kerner Report and in response to a petition filed by the United Church of Christ. in which it extended who had standing (the legal right to be heard) in broadcasting cases to representative and responsible members of the public. The FCC. a station notorious for racist programming practices. the National Advisory Commission on Civil Disorders. In 1969. here to be facilitated by the presence and perspectives enabled by diverse staffs. rescinded policies to promote localism. civil rights activists in Jackson. Diversity. The expressed public interest goal of the rules was to promote diversity on air. opened the door to multiple license challenges in locales across the nation. Media policy had been influenced by the social and political upheavals of the 1960s and 1970s. the FCC loosened ownership rules.com at University of Missouri-Columbia on January 20. The Report (1968) importantly included a section on the media’s role.sagepub. The rules both forbade broadcasters from discrimination in hiring and promotion and required them to take affirmative steps to hire staffs somewhat reflective of the diversity of their communities. filed by groups who saw themselves omitted from both representations on air and in broadcasters’ conceptions of the public they were to serve (Classen 2004.360 Television & New Media 13(4) Prologue II: Race. the FCC adopted equal employment opportunity rules for all broadcast licensees. and Media Policy While Congress considered a number of bills in the 1970s to deregulate broadcasting. the FCC took aim at policies that had been adopted in the late 1960s and 1970s to address the lack of ethnoracial diversity on the airwaves. but in systematically excluding African American perspectives. Broadcasting’s import was not only in how it reported on the tensions of the era but in its role in perpetuating and naturalizing the second-class status of African Americans. Two years later. committed early on to deregulation. led by Fowler. 1337-50). cognizant that the employment rules had done little to diversify the airwaves and responding to an appellate court decision instructing the Commission to prioritize bringing more people of color into the ownership of broadcasting stations (TV9 1973). The comparative hearing enhancement provided a credit to minority-owned entities when competing with Downloaded from tvn. filed a petition to deny the license renewal of WLBT-TV. or the Kerner Commission. In addition. By 1978. in the short term. and views on the airwaves.

If the FCC and the courts believed that ownership regulations ran afoul of the logics of the commercial media marketplace. Beginning in the 1980s. This regulatory approach also discounted the presumed relationship between ownership and perspective that had structured ownership policies for decades. hinged on the reciprocal logics of media deregulation and a neoconservative position on race relations.sagepub. broadcasters who faced losing their licenses could sell their stations to a qualified minority owner for at most 75 percent of the value of the station. and antidiscrimination principles are enshrined in law. the FCC assumed that increasing the number of entities who controlled broadcasting stations would broaden the perspectives on offer to listeners. also presumed that the requisite diversity consumers desired would be the logical outgrowth of commercial interests doing what they did best. along with competition and localism. notably the expansion of cable and the ascent of the videocassette recorder (VCR). constituted the core of how the FCC defined the “public interest” obligations of broadcasters. from this vantage point. and to make it even more difficult for minority owners to break into the broadcasting sector. to many commissioners necessitated a regulatory shift that acknowledged the proliferation of media outlets and the attending diversity that they seemed to augur. The minority ownership enhancements extended this understanding of diversity to consider not just the number of speakers on the airwaves but who was speaking. The marketplace approach.Perlman 361 other applicants for a broadcasting license. To see race and to see it as a meaningful marker of identity. 2014 .500 broadcasting stations. The minority ownership enhancements were in keeping with policies adopted by the FCC to promote diversity on the airwaves. It is an orientation that assumes that once de jure discrimination is eliminated. not by government regulations. which led not only to the repeal of the Fairness Doctrine but the loosening of ownership restrictions. they simultaneously contended that raceconscious policies violated the principle of equality at the center of American law. Downloaded from tvn. Changes to the media landscape. trying to attract audiences. minorities owned less than 1 percent of the nation’s 8. was both to deny persons’ their individuality and to refuse the universal humanity shared by all people. Diversity. the FCC and federal courts questioned the necessity and constitutionality of the minority ownership enhancements. one echoed by a number of appellate court decisions. that the problem of racial inequality will wither away. Presuming a nexus between ownership and viewpoint. Under the FCC’s distress sale policy.com at University of Missouri-Columbia on January 20. The FCC also created a tax certificate program that allowed broadcasters who sold their stations to minority owners to defer payment of capital gains taxes and provided tax certificates to investors who provided start-up capital to minorities. and since the 1940s the Commission had imposed ownership restrictions on licensees to promote diversity. An outcome of deregulation was to shore up the position of incumbent licensees and of highly resourced media companies on the one hand. When the FCC adopted these rules. The position of the FCC. This position was inhospitable to policies that acknowledge the legacy of past structural inequalities on the present and denied the salience of group-based identities to one’s experience of the world.

The initial decision in Steele emblematized these dual strands of media deregulation and the integrationist ideology. Court of Appeals in Steele v. (1198) The court further insisted “To suggest that these dubious. When the Commission under Fowler filed its brief on behalf of the minority ownership enhancements in Steele. the FCC opened an inquiry on its minority preference policies. it is questionable whether a black station owner would program soul rather than classical music or that he would manifest a distinctively “black” editorial viewpoint. By the end of the 1980s. the appellate courts would weigh in again on the minority ownership policies. one on the minority ownership credit in comparative hearings. in “only twenty-five years.sagepub. penned by Justice Brennan. the other on the distress sale. the respective dissents of Justices O’Connor and Kennedy argued that presuming a nexus between viewpoint/taste and racial identity signaled a malevolent and unconstitutional reliance on stereotypes. that an Italian station owner would primarily program Italian operas or would eschew Wagner in favor of Verdi. it stated that the rules. blacks and Bull Connor have become relativized in this soupy moral economy” (543)—the dissents in Metro suggested that the majority decision marked an unethical and Downloaded from tvn. for example. it forbade the FCC from touching these ownership programs. which was terminated by Congress in 1987 when. to make an assumption concerning an individual’s tastes and viewpoints would seem to us mere indulgence in the most simplistic kind of ethnic stereotyping. the Supreme Court ruled on two cases.com at University of Missouri-Columbia on January 20. In 1985. as part of an appropriations bill. 922).S. Similarly. ran afoul of the Constitution. In Metro Broadcasting v. 2014 . In 1986. FCC (1985) indicated that it found the minority enhancement credit in comparative hearings unconstitutional and invited the FCC to file a brief defending this policy. The court opined. the justices in Metro fundamentally disagreed over the contours of equality in a multiracial society. asserted that a broadcasting industry dominated by one racial group (whites) would logically be incapable of representing the diversity of the polity. as currently supported and conceived. as it combined a belief that the market could tend to the communication needs of the public and that race-conscious policies trafficked in outmoded stereotypes (Shurberg Broadcasting 1989. operated as the central lines of opposition to the minority ownership enhancements in the 1980s. ethnically-determined tastes will outweigh the economic imperative of what the audience wants to hear therefore strikes us as more than a little implausible” (1199).362 Television & New Media 13(4) These two sets of assumptions. FCC (1990). While the majority decision. Indeed. the U. Drawing a moral equivalence between all forms of race-consciousness—as Williams writes. There is no reason to assume. As Patricia Williams (1990) demonstrates. of the benefits of media deregulation and of what Gary Peller (1995) has called an integrationist ideology of race relations. The rationale in this latter case would directly echo that of Steele. affirming the comparative hearing enhancement but finding the distress sale policy to be unconstitutional.

As critical race scholars have discussed. The Stealth Fairness Doctrine In 2007. the FCC revisited the question of diversity on the airwaves. in Adarand Constructors v. This view insisted that to continue the conversation over racial discrimination. not as an actionable public interest goal. conservative publications and talk show hosts announced that Democrats were intent on bringing it back. The intensity of these anxieties accelerated around and after the 2008 election. Thus by the end of the century. This campaign intended to derail media diversity initiatives. In addition. had revealed that women and minorities combined owned less than 10 percent of broadcasting stations in the United States. all of the policies to bring ethnoracial diversity to the airwaves had been upended. discussed more in the next section. Derek Turner and Mark Cooper (2006). this period saw the ascent of a discourse of color-blindness within the juridical and cultural sphere. the first of what would become a string of court decisions that would greatly limit the scope of the equal employment mandates. The abandonment of the minority enhancement policies epitomized a broader neoconservative shift in race relations in the Reagan–Bush eras. that had instructed the FCC to examine the impact of its ownership policies on minority and female ownership. The “stealth Fairness Doctrine” panic that emerged in their wake fused conservative claims of injury with a neoconservative position on race. In 1998.S. as Democrats reclaimed the White House and both houses of Congress Downloaded from tvn. regulators and the courts reconfigured diversity as something that a robust marketplace yields. In part. Pena (1995). one that conflated race-consciousness with racism and that presumed that the legislative victories of the 1960s on civil rights had remedied the nation’s problems with racial discrimination. one that had been codified in the policy and legal decisions of the 1980s and 1990s. though the political will to reinstate the Fairness Doctrine was at best feeble. and to seek remedies for it. in addition a Free Press study. 2014 . and limit the parameters of legitimate stakeholders in media policy debates. devised race-neutral strategies to promote diversity. using O’Connor’s dissent in the case as the interpretive backbone of its ruling.sagepub. the U. advance a conservative narrative of victimization. The broadcasting cases of the 1980s and 1990s enshrined this read of American race relations into law. The Commission’s plan. A decade after the minority enhancements had been rescinded. the Court would overturn Metro.com at University of Missouri-Columbia on January 20. was to trample on the rights of hard-working Americans. whom liberals relish in penalizing over bogus claims of inequality. District Court of Appeals in Lutheran Church Missouri Synod v. codifying the view that race-conscious programs themselves constituted a form of racism that inflicted undue injury on white Americans. The continued legacy of this viewpoint would be felt in the first decade of the twenty-first century in two ways. Five years later. FCC applied the Adarand ruling to the FCC’s EEO rules. the Commission responded to the appellate court in the Prometheus (2004) case. authored by S. even though these policies intended to expand ethnoracial diversity on air.Perlman 363 unconstitutional backslide in the nation’s progress toward racial equality.

conservatives hit on four key notes when discussing the Fairness Doctrine: that its purpose would be to centralize liberal control over the media and to silence conservative dissent. which drew connections between the hegemony of conservative talk radio and the impact of deregulatory policies that diminished localism and diversity. perhaps unintentionally sowed the seeds of the conservative discourse that tied localism and diversity efforts directly to attacks on conservative talk radio (Kincaid and Woolley 2007). rather than a viable issue of the left—conservatives continued to beat the drum against its return. A06). would have a majority on the FCC. The report. it instead promoted a return to more stringent license renewal process for licensees to ensure that they serve local communities and for changes in ownership rules. Noyes 2008. York 2007. conservatives argued that regulatory efforts aimed at increasing localism or diversity were. Conservatives also read an amendment introduced by Illinois Senator Dick Durbin in 2009. Bozell 2007b. Will 2008). 16. in actuality. 19. For much of 2007 and 2008. this amendment seems uncontroversial and in keeping with more than six decades of broadcast regulation.” The Senate approved the Durbin amendment the same day it voted overwhelmingly to prohibit the FCC from reimposing the Fairness Doctrine in an 87–11 Downloaded from tvn. conservatives argued that this was in fact a “stealth Fairness Doctrine. Though Democrats continually reiterated that they had no interest in reviving the Fairness Doctrine—that it was a rallying cry of the right. Specifically. that because conservative media speaks to the “people” and challenges the “powerful. The Structural Imbalance of Political Talk Radio (2007). out of the watchful eye of the compliant mainstream media. Though. Fein 2008. the decline of local ownership of radio stations. Diagnosing the gap between conservative and progressive talk radio as a “structural imbalance” caused by media consolidation. 33-35. First. as Limbaugh put it. 2014 . This report outlined a relationship between the consolidation of the radio industry.sagepub.” entrenched (liberal) elite interests will do anything to undermine it. Anderson and Thierer 2008.364 Television & New Media 13(4) and. the report advocated measures to increase local and minority and female ownership of broadcasting stations. Conservative rhetoric on this issue shifted in 2009 onto concerns over “backdoor” attempts to bring back the Fairness Doctrine by. conservatives pointed to a report published by the Center for American Progress and Free Press. will bring back the Fairness Doctrine without regard to public opinion (Bozell 2007a. “calling it something else” (Sands 2009. 1. the Fairness Doctrine is a violation of the First Amendment and would trample the vibrant “marketplace of ideas” currently circulating in American media. and that Democrats are a sneaky and crafty bunch who. Two events provoked these accusations. and the overwhelming dominance of conservative talk radio.com at University of Missouri-Columbia on January 20. 1. While the report explicitly rejected a push for the Fairness Doctrine. on its face. stealth efforts to silence conservatives and extend liberal hegemony over the airwaves.” as the first major effort to use the goals of diversity and localism as a mask to silence conservative talk radio. as a result of the former. which requires the FCC to take affirmative steps to “encourage and promote diversity in communication and media ownership and to ensure that broadcast station licenses are used in the public interest.

In addition to paying much attention to this issue in the pages of its publications.com at University of Missouri-Columbia on January 20. defined the new Obama administration’s biggest threat as conservative media and. which arguably could include any action by an administrative agency charged with ensuring that the “public interest” is met. The promotion of diversity here was recast as nothing more than a liberal power grab.” the MRC suggested that affirmative regulations on broadcasters would inherently pose a threat to conservative speech rights. The goal of diversity initiatives. as “a direct threat to free and open discourse.” In an open letter to Obama in the Wall Street Journal.” In order to “marginalize conservative opposition. conservatives have insisted that Democrats have not given up on the Fairness Doctrine but rather. Despite the support for this bill. This framing of media diversity initiatives reverberated across conservative media outlets. it warned. the MRC also formed a “Free Speech Alliance. Limbaugh (2009b) asked if it was his “intention to censor talk radio through a variety of contrivances. was expressed more plainly by Bozell (2009b) when he insisted that “diversity and public interest are code for liberalism and liberal views” (1). conservative political leaders framed it as a clandestine attacks against the speech and property rights of conservatives.” It secured nearly half a million for its petition to the FCC to reject efforts to censor conservative speech through initiatives like “diversity in media ownership” or promotion of the “public interest. Bozell (2009a) announced that the “Liberal Media and Obama Declare War on Rush Limbaugh and Conservative Talk Radio. in an appearance on Glenn Beck’s show on Fox. such as ‘local content. have tried to use alternate routes to achieve the same objective: silencing conservative talk radio. Bozell’s Media Research Center was at the fore in popularizing the campaign against the “stealth Fairness Doctrine. via the Durbin Amendment. Immediately after the Durbin Amendment passed. Limbaugh (2009a). The MRC’s position.sagepub. one that asserted that the only meaningful divisions in American society were ideological.Perlman 365 vote in favor of Senator Jim DeMint’s Broadcaster Freedom Act (Carnevale 2009).” Positioning such regulations.” composed of more than seventy conservative organizations. while Representative Mike Pence (R-Ind.’ Downloaded from tvn. for example. Senator Jim De-Mint (R-SC) issued a press release insisting that it was an attempt to muzzle conservative voices. and in the editorial pages of mainstream newspapers. The Durbin Amendment was defined specifically as “nothing more than a backdoor attempt to regulate and control conservative talk radio” (1). 2014 . which would find echo across media outlets. to combat “new threats to silence the right.) quickly referred to the Durbin Amendment as a “a form of regulation that is essentially the Fairness Doctrine by stealth” (Ryan 2009). conceding that “they can’t go Fairness Doctrine because it’s too obvious. in the words of conservative politicians.” that they would try “to do this backdoor route with ‘diversity’ and ownership.” the MRC claimed that Democrats would either reinstate the Fairness Doctrine or “by regulating the ownership and broadcast licenses of radio stations in the name of ‘diversity’ and the ‘public interest’” (1). and subsumed all other forms of difference under this binary.” In its monthly newsletter The Watchdog. is “to stifle conservative opinion” making them “the single greatest threat in the history of our Republic to our sacred freedom of speech” (1). liberal versus conservative.

Rowan Scarborough (2009). This anxiety was perhaps most aggressively expressed by conservative pundit Michelle Malkin (2009) when she implored conservatives to “Gird your loins” because the “diversity-mongers are preparing the next step toward the un-Fairness Doctrine” via the FCC’s Diversity Committee.5 million in annual earnings. and adopted the “backdoor” Fairness Doctrine anxieties in 2009. their conflation of “diversity” with “liberalism” suggested that the range of perspectives needed for a marketplace of ideas are confined to the liberal-conservative polarity. Limbaugh also routinely took aim at media diversity initiatives. In addition. that the mainstream media and their federal allies think nothing of—and indeed sanction—the trampling of conservatives’ rights rehearsed the longstanding narrative of victimization that has informed conservative politics. also came under attack as another ruse to silence conservatives in the name of “diversity of viewpoints” (Roberts 2009. This anxiety. Conservative magazine Human Events was also especially emphatic in its efforts against the stealth Fairness Doctrine. Importantly. especially in the realm of broadcasting policy. defined as efforts to simultaneously silence conservative perspectives and reassign broadcaster licenses to entities sympathetic to liberal views. it would be advisable and constitutionally sound to revise its definition of “eligible entity” that would include specifically raceand gender-based categories. It was on his show that Limbaugh most insistently dismissed efforts to bring more minorities into the broadcasting industry as really an effort to silence conservative talk radio (Limbaugh 2009c). television stations with no more than $13 million.’ and ‘public interest’ rules” (A17). The FCC’s Advisory Committee on Diversity. insisted that it was the “left’s ultimate goal of shifting licenses away from networks who air conservative talk and toward minority owners who will broadcast liberal programming” (17). Downloaded from tvn. insisting that actions like the Durbin Amendment were actually efforts to muzzle his brand of political dissent. 6). 2014 . in the future. On his radio program. The actual steps taken by the FCC to promote diversity should have quelled conservative anxieties that their true purpose was to rob conservatives of their speech rights. Such timidity in approach arguably stems from three decades of court decisions rendering racial classifications constitutionally suspect. for example. Conservatives positioned diversity and localism initiatives as both encroachments on the speech and property rights of conservatives and their audiences. The FCC did not adopt a definition of “eligible entity” that privileged broadcast owners who are people of color or women. the Commission has sought comments on whether. It routinely had beaten the drum against the Fairness Doctrine’s return in 2007 and 2008. The FCC (2008) adopted a “Diversity Order” to benefit “eligible entities. These more recent initiatives undertaken by the FCC to promote diversity have been cautious.com at University of Missouri-Columbia on January 20.” defined as small businesses: radio stations with no more than $6. though argued that its new rules would contribute to this form of broadcast ownership diversity since women and minority owned stations that would fall under the definition of “eligible entity” used (5925-27).366 Television & New Media 13(4) ‘diversity of ownership. and rendered all other forms of identity outside of one’s political ideology as inherently unimportant.sagepub. whose goal was to make recommendations to redress the abysmally low levels of female and minority ownership.

Perlman 367 The goal of the FCC’s diversity policies is to expand participation in broadcasting and “strengthen the diverse and robust marketplace of ideas that is essential to our democracy” (5924)—to shore up diversity through changes to broadcast ownership regulation. to my knowledge. The FCC’s next initiative (2009) on broadcast diversity was to improve its data collection on minority and female broadcast ownership. or that President Obama meant. in their attacks on the stealth Fairness Doctrine. In suggesting that all diversity initiatives are encroachments on the rights of conservatives. For example. deciding that any entity that finances or incubates an eligible entity will be given preference in its application for a duopoly in a market that can only support one additional duopoly.com at University of Missouri-Columbia on January 20. expanded who is required to file the form.sagepub. and streamlined the filing process so that all licensees will submit the form at the same time. They neither provide loopholes to reassign licenses nor do they signify shifts in regulation that would in any way affect the speech carried on broadcasting stations. the ownership report required of noncommercial stations. in broadcast transactions and required licensees to certify at renewal time that they had not agreed to advertising contracts with discriminatory clauses. It is most likely initiatives like these that Senator Durbin had in mind. but also obscured the continued barriers to participation of people of color.” and curtailed the parameters of rights claims over media policy. And the FCC barred discrimination. according to existing ownership rules. the FCC reinstated the distress sale policy for eligible entities and adopted a number of policies to encourage investment in eligible entities by. most notably the no urban/no Spanish dictates that operated against stations with formats serving African American and Latino audiences. Importantly. create opportunities for eligible entities to get a foothold in broadcast station ownership. weighed in on the FCC’s data accumulation process. it revised Form 323 (the ownership report for commercial broadcast stations). 2014 . on the basis of race or gender or other protected categories. These policies provide a somewhat small opening to encourage diversity in the ownership of broadcasting stations and to prohibit egregious discriminatory practices. conservatives have not addressed directly the substance of the Diversity Order nor have they. when they pronounced the Fairness Doctrine dead in the water and advocated instead attention to policies for access and diversity. and prohibit discriminatory practices that have economically harmed small businesses. Downloaded from tvn. The FCC also has sought comments on whether it should similarly revise Form 323-E. To credibly and legally address the low levels of ownership among people of color and women. To characterize these policies as attempts at a “backdoor Fairness Doctrine” mischaracterizes their scope and intention. The rules themselves would not threaten the existing structure of broadcasting nor would they threaten the licenses of current broadcasters. deflected attention from the uneven impact of media deregulation on the “marketplace of ideas. for instance. These changes intend to rectify a long-standing problem: the Commission’s imprecise data on the actual levels of female and minority ownership. conservative media activists not only misrepresented the substance and impact of these efforts. and for new policies to pass legal muster. the FCC needs solid data on which to act. In April 2009. The policies provide incentives for capital investment in eligible entities.

sagepub. In the case of the “stealth Fairness Doctrine. an insistence that racial difference was no longer meaningful. and the role of the public that policy has ascribed. and content within. As media scholars. Allen Hammond. In mapping the history and context of the conservative “stealth Fairness Doctrine” attack. Conservative media activism continually has functioned as an opportunity for the right to construct the media as mouthpiece for the left. not Downloaded from tvn. and who constitutes the public and what qualifies as its interest. To participate in media reform has been simultaneously to try alter broadcasting practices and programming and implicitly to sanction its structure. and conservative Americans as perennial victims of a biased media system. By conflating “diversity” with “liberalism. notably Thomas Streeter (1996). the logic of its governance. Chon Noriega (2000). that the only diversity that mattered was ideological.368 Television & New Media 13(4) The “stealth Fairness Doctrine” campaign was a whitewashing of diversity.com at University of Missouri-Columbia on January 20. my goal is not to exalt media diversity initiatives as the solutions to fix the current mediascape.” conservatives have used this framework to nullify the legitimacy of media diversity initiatives and implicitly to deny the structural barriers to participation for people of color in broadcasting. ownership may or may not be the most significant arena to address diversity concerns. and Catherine Sandoval (2007) have illustrated how minority ownership of broadcasting stations does influence the amount of. In addition. The new rules adopted in the Diversity Order in no way disrupt the hegemony of large-scale media companies in dominating broadcasting nor the paternalistic relationship between “mainstream media” and “minority media” that has defined the history of American broadcasting. 2014 . one that reframes how to understand the goals of policy proposals. Conclusion The fracas over the Fairness Doctrine is in keeping with decades of conservative media activism that has intended to tar both the media and its federal regulators as liberal ideologues intent on denigrating the political beliefs and ethical positions of conservative Americans. public affairs and news programming. the openings for minority participation afforded by broadcasting policy not only has constrained how and what kind of rights claims and challenges could be made but also precludes opposition to the structure of broadcasting or to the corporate liberal assumptions of policy makers. who has been marginalized and sidelined within the business and regulatory arenas. media regulation as an instrument of a liberal political agenda. This campaign against media diversity regulations has contributed a loud voice of protest.” conservatives dismiss that racial and ethnic difference still matters and proffer that the only kind of discrimination of import is that perpetuated by power-hungry liberal zealots with no respect for the speech rights of their political adversaries. Christine Bachen. In addition. and Steven Classen (2004) have demonstrated. this well-orchestrated attack reaffirmed the narrative of victimization that has informed conservative discourse for the past forty years.

v. III. Bachen. operating under the same commercial logics as other networks. Killing talk radio.com at University of Missouri-Columbia on January 20. The other side of the sixties: Young Americans for freedom and the rise of conservative politics.. A.. A. 2007. Serving the public interest: Broadcast news. 1969. References Adarand Constructors. authorship.Perlman 369 only do these stations tend to air more programs dedicated to local issues but their emphasis and choice of stories reflects stations’ recognition that people of color constitute a meaningful part of the broadcasting public. The “stealth Fairness Doctrine” campaign combined conservatives’ assertion of a hegemonic liberal media with their reframing of whose rights and liberties are at stake in civil rights actions. Inc. I do not mean to dismiss the Commission’s diversity initiatives. In conjuring up “backdoor Fairness Doctrine” efforts. conservatives simultaneously erased the impact of the conservative ascendancy on opportunities and access for people of color within broadcasting and restricted the field of legitimate rights claims within the policy arena to those articulated by the political right and its allies. C.. public affairs programming. Mahwah. S. New Brunswick: Rutgers University Press. Funding The author received no financial support for the research. authorship. J.sagepub. 269-306. In contrast. IV. policy “works as a technology for the constitution of race and racialized subjects” (27). Downloaded from tvn. A. and Sandoval. Andrew. but rather to remind that they are not panaceas and that they are not without their own implications in how race and identity is understood in the United States. the constitution of the category “minority” within broadcasting policy not only reifies white audiences as the general “public” that broadcasters are obligated to serve but propels the fiction of a unitary minority community. Furthermore. C. edited by Philip Napoli. 515 U. J. as Classen (2004) illustrates. produces audiences for sponsors by recycling and aping content found in other outlets.htm Anderson. K. In making these critiques. NJ: Lawrence Erlbaum. But what these media diversity initiatives are not are attacks on the speech and property rights of conservatives. and the case for minority ownership.com/speeches/spiroagnewtvnewscoverage.. http://www. B. In Media diversity and localism: Meanings and metrics. and/or publication of this article. Hammond.americanrhetoric. and/or publication of this article. M. Television news coverage. and Thierer. Beretta SmithShomade’s (2008) study of cable network BET suggests that black ownership does not necessarily yield a greater array of perspectives and. 18. 2014 .S. 2008. 1995. Declaration of Conflicting Interests The author declared no potential conflicts of interest with respect to the research. 200. New Criterion. S. Agnew. September. Pena. p. 1997.

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