Free Speech in the Free Market

Tim Rutten, writing for the LA Times made several interesting observations regarding talk radio,, and the way congress has responded to commentary coming from each.

[T]he House and Senate censured the liberal activist group for taking out a newspaper advertisement that characterized Gen. David H. Petraeus, the U.S. military commander in Iraq, as “General Betray Us.” Now congressional Democrats are seeking a similar expression of disapproval for radio talk-show host Rush Limbaugh, who they allege insulted servicemen and women opposed to the Iraq war by calling them “phony soldiers.” (Limbaugh has a baroque explanation of what he actually meant by those words, but you probably have to be a regular listener to his show to follow it.)

There’s a temptation to dismiss all this as hollow foolishness — like most of the things Congress does with ease. Beyond all this preposterous posturing, though, there are a couple of things worth considering because both really do involve free speech and your right to hear it.

Now, the ad was patently offensive, a particularly unconscionable slur on any honorable American in uniform, let alone a guy who commanded the 101st Airborne. It was, however, rejected out of hand as an expression of loony narrow-mindedness by most Americans who oppose the war. Nobody, in other words, needed a congressional coalition — not even a bipartisan one — to instruct them on how to think. Similarly, it’s possible that the Democratic leadership is sufficiently clueless not to have noticed until now that Limbaugh regularly goes on the air and says cruel and offensive things about people of all sorts. Most Americans with a pulse, however, are abundantly clear on the fact that Rush talks a pretty mean game.

To this point, I agree with Mr. Rutten. It should be beneath congress to spend time passing useless resolutions condemning private citizens or groups for expressing opinions that some congressmen disagree with. Outrageous and crazy things are printed, spoken, and blogged on a daily basis. Should congress pass resolutions for each and every one of these statements? Of course not. They work for us and they have a job to do.

But unfortunately for those of us who value our First Amendment rights, there are certain politicians who wish to do more than pass resolutions condemning speech they disagree with by bringing back the so-called “fairness doctrine.”

ASK most Americans what the Fairness Doctrine is and they’ll correctly tell you it’s a regulation that requires broadcasters to air both sides of an issue. Tell them that it hasn’t been enforced since 1987, when the Federal Communications Commission essentially deregulated broadcasting and abolished the doctrine, and they’ll look at you like you’re nuts. That is, however, the situation, and much that is of current consequence flows from it — including the existence of contemporary talk radio of which Limbaugh is the avatar.

In America today, talk radio is a wholly owned subsidiary of the Republican Party’s conservative wing. GOP partisans will argue that’s because deregulation subjected radio to the discipline of the marketplace, and, when that market expressed itself through ratings, it stated an overwhelming preference for conservative talk-show hosts. That’s a good, Reagan Era argument, but Democrats and their allies see different forces at work. They point to the fact that deregulation freed big corporations to acquire hundreds of radio stations at about the same time that satellite transmission made syndicated radio programming decisively cheaper than locally produced shows. It was an easy call for the corporate station managers, who quickly filled their airtime with cheap, syndicated programming. Most of the first wave of syndicated programming was talk by conservative commentators, who’d long been shut out — or felt they were shut out — of mainstream media.

Talk radio is “owned” by the G.O.P.? Ridiculous! Yes, it’s true that the vast majority of talk show hosts are conservative but so what? The reason why conservative talk has been successful is because there is a market for conservative views. The prevailing theory seems to be that conservative talk is successful because it is one of the few places where the alternative views (alternative to the left wing MSM) are expressed. This could explain why conservative talk has succeeded where progressive talk has failed. The fact that a few large media corporations own most of the radio stations is irrelevant (clearly, Rutten also believes that antitrust laws are legitimate). If there was a stronger market for progressive views, these large media corporations would not hesitate to drop the conservatives in favor of progressives. The radio industry’s master is the bottom line, not the G.O.P. or anyone else for that matter.

If the FCC were to reimpose the Fairness Doctrine, talk radio would no longer be a part of the GOP base. That’s why Democratic senators like California’s Dianne Feinstein and Illinois’ Richard J. Durbin have been talking about prodding the agency into doing that since last spring. It’s also why, late Monday, 200 Republican representatives notified the House Rules Committee that they intended to seek a “petition of discharge” for the “Broadcaster Freedom Act.” That bill, written by Rep. Mike Pence (R-Ind.), a former radio talk-show host, would prohibit the FCC from ever reimposing the Fairness Doctrine. Under the House rules, if Pence can get 218 signatories to the petition, the Democratic leadership must let it come to the floor for a vote.

That’s what’s really at stake in all the posturing over MoveOn .org and Rush Limbaugh. In the minds of both parties, it’s not so much a fight over speech as it is over the right kind of speech. The sad irony is that the only voice that isn’t being heard in all this talk over talk is that of the public, which, after all, owns the airwaves over which this struggle is being waged.

For the sake of argument, let’s say that Rutten is right: talk radio is “owned” by the G.O.P. base. Again, I have to say: so what? Rutten major common error in this piece is this notion that the public “owns the airwaves” (except for the illegitimate use of taxpayer money to fund both NPR and PBS). The entire argument for government imposed regulations on broadcasting rests on this notion that the airwaves are owned by everyone. If the airwaves are owned by everyone, then that also means that the airwaves are owned by no one. If the airwaves are owned by no one, then the government assumes that the government rightly fills that vacuum to own the airwaves.

But the public does not own the airwaves; the people who pay the money to transmit their programming do. The way I see ownership of the airwaves should be similar to ownership of any other kind of property: a radio station owner determines the frequency s/he wants to use and s/he registers the frequency with the county so no other station can use his or her frequency.

In the real world, it’s a little more complicated than that but the fact remains that radio station owners pay for their programming from advertisers and donations (donations are more common for religious programming) NOT public funds. If the G.O.P. base truly has spent the money to keep these shows on the air, I say more power to them. What would stop the DNC from doing the same?

If we buy into this myth of the public airwaves, we do so at our own peril. If the FCC can demand that talk shows give equal time for all issues (assuming that is even possible), what is to stop congress from setting up similar unelected bodies to impose similar regulations on newspapers, magazines, and blogs? Newspapers are delivered on public roads, magazines are delivered through the U.S. mail, and the internet is transmitted over utility lines which are often also regulated by the government!

I agree with Mr. Rutten that the voice of the public is not well represented on the radio but what are we willing to sacrifice in the name of fairness? Despite my frustration with the MSM and talk radio, we live in a time where we have so many other options to express our views and listen to unconventional views of others. We now have the internet which gives us access to videos, podcasts, and blogs. The government should be the last place for us to deem the ultimate arbiter of fairness.

  • UCrawford

    Well put, Stephen.

  • Stephen Littau

    Thanks UC!

  • Chepe Noyon

    I agree entirely. The government has an obligation to insure only that the marketplace of ideas is not controlled by any single party. There’s nothing preventing left-wingers from advancing their own agenda via radio. Indeed, there was just such an attempt last year and it failed.

    The real factor at work here is demographics. It appears that conservatives like to listen to the radio, while major newspapers seem to be patronized more by liberals. I suspect that the blogosphere is more heavily populated by liberals than by conservatives, based on the numbers I have seen for traffic and activity at the top political blogs. Whatever the actual numbers are, the only thing we need to be careful about is to insure that every significant faction gets a change to present its views somewhere. So long as that minimum level of coverage is provided — and I think it is — then we needn’t get all worked up about local imbalances.

  • UCrawford

    Actually most of the recent articles I’ve read indicate the blogosphere is largely libertarian. That’s one of the reasons Ron Paul gets so much support from this medium.

  • John Gallagher

    The ticket to ride in radio and TV is a licensed position on a crowded spectrum limited by science. The cost of the license, if you are lucky enough to get one, is chump change, so an additional requirement was an obligation to serve the public interest with balanced presentation. No Fairness Doctrine, no obligation.
    Talk radio is dominated by right wing talkers because of ownership and manipulation of markets by a handful of people.
    Concentrated ownerships dominate radio, forcing national programming into markets where local voices once prevailed. One company – Clear Channel – owns more than 1,200 radio stations; other chains monopolize small markets. Programming is fed from central locations; most stations offer little local content. Syndicated talkers get massive audiences from chains, which set the agenda for local audiences who might like another choice.

    This isn’t the independent press that our forefathers spoke of. The answer is to set policies that put the powerful voices of the media in the hands of as many as are possible. A plethora of voices equals a plethora of opinions.
    . A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others of his community and present those views which would otherwise, by necessity, be barred from the airwaves

    No one has a First Amendment right to monopolize a broadcast frequency. Unlike newspaper owners, every broadcaster knows going in that his ability to pursue his private interests are constrained by the obligation to serve the public

    And we should not be deterred in this critical task by those who would use specious constitutional arguments

  • Stephen Littau


    If your goal is more competition in the marketplace of ideas, then licensing should be the last thing you should want to advocate. Government licensing limits competition. The only role the government legitimately has is to enforce the frequency boundaries (i.e. if radio station A decides to broadcast on radio station B’s frequency, station B would have grounds to take station A to court). Clear Channel, Westwood One, or any of these other media companies are under no obligation to serve the “public interest” if you truly believe in the First Amendment. The only interest these companies should be required to serve is their own (which would require satisfying the shareholders, advertisers, and the listeners). If the free market does not respond well to the programming, the programming goes away.

    There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others of his community and present those views which would otherwise, by necessity, be barred.

    I disagree but if the First Amendment isn’t good enough for you then how about taking a look at the Ninth and Tenth Amendments:

    Ninth Amendment
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Tenth Amendment
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Where in the Constitution does it say that the federal government can regulate broadcasting? I’ll save you some time: it doesn’t!