And how the Fairness Doctrine, extended to cable, could have prevented Jan. 6 and the threat to democracy's survival...
By Ernest A. Canning on 5/12/2023, 10:05am PT  

A decision by President Ronald Reagan to veto [PDF] an Act of Congress that would have codified the FCC's Fairness Doctrine into law, rather than just FCC regulation, coupled with the failure of both the FCC and Congress to expand the Doctrine to apply not only to over-the-air broadcasting, but also to ubiquitous cable television networks like Fox "News", gave birth to today's mendacious right-wing media echo chamber.

The rationale offered by Reagan in his veto at the time, and by the Commissioners he appointed to the FCC when it repealed [PDF] the Fairness Doctrine in 1987, was that the Doctrine had a "chilling effect" on broadcasters' willingness to cover controversial topics. The U.S. Supreme Court, however, in Red Lion Broadcasting v. FCC (1969), brushed aside that same argument as speculative.

"It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail," JFK-appointee Justice Byron White wrote on behalf of the unanimous Supreme Court in the Red Lion opinion. "Speech concerning public affairs," he added, "is more than self-expression; it is the essence of self-government."

That observation aligns with the words of James Madison, who introduced the First Amendment at the Constitutional Convention in 1787. "Knowledge will forever govern ignorance," Madison proffered; "and a People who mean to be their own Governors must arm themselves with the power that knowledge gives."

Because the "goal" of the First Amendment is to produce "an informed public capable of conducting its own affairs," the Court, in Red Lion, ruled that it's the First Amendment "right of the viewers and listeners, not the right of the broadcasters, that is paramount."

The Supreme Court has never recognized a First Amendment right of a broadcaster to lie to the public, let alone a broadcaster's right to erect a pervasive, yet entirely fictional alternative reality, like the one created when Fox "News" embraced and amplified the same "Big Lie" that led to the January 6 insurrection.

If the Doctrine had been retained and expanded to cable TV outlets, it might well have prevented the January 6 insurrection. An expanded Fairness Doctrine would also have the potential to fend off today's ominous threat to the very survival of democracy in these United States...

Defamation litigation a poor substitute

Shortly after Fox agreed to pay Dominion Voting Systems $787.5 million --- the "largest publicly known defamation settlement in US history" --- late-night talk show host Jimmy Kimmel expressed disappointment: "We naively thought that this was about making Fox 'News' accountable."

Kimmel's lament encapsulated the misunderstanding that led so many Americans to express disappointment when that record settlement prevented a full airing of the right-wing propaganda outlet's sins over the course of a lengthy trial.

(Even before the settlement, in barring both audio and video recording of the trial, Judge Eric Davis deprived the public of the opportunity to watch, first-hand, as Dominion's attorneys were set to use damning emails, texts and passages of their sworn deposition testimony to hammer the truth out of scoundrels, like Rupert Murdoch and Tucker Carlson on the witness stand.)

Unlike the Fairness Doctrine, defamation litigation is not designed to protect the public's First Amendment right to hear and see the truth in real time. The object of defamation litigation is to secure compensatory damages for those whose reputations, livelihoods and business interests have been harmed by false accusations. In defamation cases where malice is established, punitive damages are also sought. Dominion's complaint did not seek a retraction, and it is doubtful that the court could have ordered one if it had.

While Dominion's interests were aligned with the public's need to belatedly learn the truth, the whole truth and nothing but the truth about the despicable lies Fox published and broadcast between the November 2020 Presidential Election and the January 6, 2021 insurrection, Dominion's attorneys had an ethical obligation to seek, on their client's behalf, as much money as Fox was ultimately willing to pay.

Disinformation bubble

For those who have studied media in depth --- a study that necessarily includes a review of Brave New Film's 2004 documentary, Outfoxed: Rupert Murdoch's War on Journalism --- neither the damning evidence set forth in Dominion's Motion for Summary Judgment nor Judge Davis's finding that it was "CRYSTAL clear that none of the [Fox] Statements relating to Dominion about the 2020 election are true" --- came as a surprise. To the contrary, the Dominion revelations merely confirmed what was long known.

Fox doesn't do "news". To the contrary, from its inception, Fox "News" has served as a notorious purveyor of right-wing propaganda intended to benefit the Republican Party and wealthy corporate interests. The dystopian Fox propaganda network has been recognized as "unique" for the damage it inflicts on democracy.

What was new was the revelations about the extent to which the 92-year old, Australia-born billionaire media mogul now lives in fear of the "Foxenstein monster" he created.

The millions of brainwashed nightly viewers became so deeply embedded within the Fox "News" alternative reality that they perceived the rare occasions where the network accurately reported news as a betrayal.

Almost immediately after Fox "News" became the first major media outlet to call Arizona for Biden on Election Day, according to Dominion's Summary Judgment Motion, Fox was hit with a backlash not only from the Trump White House but also from its incensed viewers. On Nov. 7, Fox waited until all other networks had done so before calling the election for Biden, hoping viewers might be less incensed at them.

The opposite occurred. Internal texts and emails revealed that the ensuing Fox publication of baseless "Stop the Steal" conspiracy theories was occasioned by a desire to "protect the brand" and to fend off viewer threats to abandon Fox and move to other, even more extreme purveyors of baseless right-wing conspiracy theories, like Newsmax.

The Dominion lawsuit exposed the core problem with the birth of the right-wing echo chamber. The heads of millions of Americans have become so deeply poisoned and ensconced within its disinformation bubble that they simply refuse to watch or listen to anything that conflicts with what they believe is reality.

That point was confirmed last June when Fox "News", then "the most highly rated cable" station, failed to cover the January 6 Commitee hearings in the U.S. House, as NPR reported. Instead, Fox Corp. relegated live J6 hearing coverage to its "lightly viewed" Fox Business Network and to its digital sites.

NPR noted that the information unearthed during the J6 hearings would have been "unwelcome to many core Fox News viewers," adding:

[T]he hearings would also have repeatedly required Fox to have broadcast flat contradictions of what many leading Fox News personalities have told their audiences in the past year and a half...Instead, their prime-time shows continued without commercial interruption Thursday, offering an alternate reality to a hearing that showed vivid and bloody detail of a national crisis.

This entailed more than a simple failure to air the landmark bipartisan hearings in the House. Fox "News" actively sought to discourage its duped audience from tuning into coverage at other networks. As the hearings were under way, Tucker Carlson extolled his network's decision not to cover the hearings: "This is the only hour on an American news channel that won’t be covering their propaganda live", Carlson proudly proclaimed. "They are lying and we're not going to help them do it."

Thus, despite live, gavel-to-gavel coverage of damning evidence presented via all of the other mainstream news outlets --- including evidence that Trump himself knew the election was not stolen, even as he continued to claim otherwise to his supporters --- a poll taken near the end of the historic hearings revealed that nearly 2/3 of Republicans still believed the 2020 election had been stolen.

As Angelo Carusone, CEO of Media Matters, noted on April 20 this year, when interviewed by Amy Goodman on Democracy Now, Fox was "willing to pay more money [to Dominion] just to avoid the possibility that their audience would find out that the network was knowingly misinforming them, and, worse for Fox, that they didn't actually believe the election was stolen."

Restore and expand the Fairness Doctrine

If free and independent journalism committed to telling the truth without fear or favor is suffocated, the oxygen goes out of our democracy - Bill Moyers, Moyers on America (2005). (Emphasis added).

In its Reply [PDF] to Fox' opposition to its summary judgment motion, Dominion pointed out that neither Rupert Murdoch nor any other Fox witness testified that they believed the lies about a corrupted election that Trump's minions uttered on its network. Murdoch admitted that he could have, but did not stop the dangerous lies that many of the pundits on his outlet had endorsed.

Despite Dominion's numerous, real time, written demands for a retraction, "Fox refused to retract or apologize for its lies about either Dominion or the 2020 election either when it mattered or since," according to Dominion's Reply brief.

Those facts reveal why the Fairness Doctrine, extended to ubiquitous cable networks, must be restored.

At the time the Court issued its unanimous decision in Red Lion Broadcasting, FCC regulations, which then applied to broadcast licensees over the publicly-owned radio and television airwaves, provided:

When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.

If that rule had been in place, every time Fox lied about Dominion, the FCC could have compelled Fox to provide a qualified Dominion spokesperson with a "reasonable opportunity to respond" on the Fox network. That same reasoning would apply for anyone who was defamed during other right-wing echo chamber broadcasts, like the two Georgia election workers, Shaye Moss and Ruby Freeman, who settled a defamation lawsuit they filed against One America Network (OAN).

The FCC, at present, does have a policy against "broadcast distortion". But, "unfortunately," according to former FCC Chairman Tom Wheeler, "the FCC doesn't have jurisdiction over cable networks. In fact", Wheeler added, "it doesn't even have jurisdiction over networks like CBS and NBC who use the airwaves."

There's tension between Wheeler's jurisdiction remarks and caselaw. In 1968 the U.S. Supreme Court, in U.S. v. Southwestern Cable Co., affirmed FCC jurisdiction over cable TV. However, neither the FCC nor Congress has ever applied the now-defunct Fairness Doctrine to cable.

It's likely that opponents of expanding the Fairness Doctrine to ubiquitous cable networks, like Fox "News", would argue that, at the time Red Lion was handed down, the FCC's ability to invoke the Fairness Doctrine was grounded in the fact that there were a limited number of radio and TV airwaves. Scarcity allowed the FCC to regulate the public airwaves in a manner that, for example, was never applied to print media.

Scarcity of available airwaves did indeed play a role in the Red Lion Broadcasting decision. The Court, however, also referenced the Government's right to "limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech." Here, the nation is faced with a baseless conspiracy-spouting cable network that erected a disinformation bubble that is so effective that, for nightly Fox "News" viewers, it essentially drowned out the compelling facts, reason and logic that were presented by other networks when they covered the historic J6 hearings.

It is the Fox "News" viewers' "paramount" First Amendment right to see and hear the truth that was abridged after the Government repealed the Fairness Doctrine and subsequently failed to expand it to cable networks.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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