July 2007

Arrogant, ignorant and biased - most US comment on the Fairness Doctrine.

Arrogant, ignorant and biased - most US comment on the Fairness Doctrine.

Noting the comment in the US concerning any idea of restoration of the former Federal Communications Commission "Fairness Doctrine", the two main things that struck us were the degree to which those commenting are in general propagandists at best and the complete lack of reference to experience in the rest of the world that is presumably alleged to a faith that the US is best, a combination of arrogance, ignorance and bias.

This does not seem to us the best way to approach a topic that has some very serious implications in terms of the nature of US democracy and public discourse, whatever view may be taken of the advisability of any such rule.

Let us at this stage go on record that we not only think there is no real chance of any such re-introduction but also that on balance we oppose it in a US context albeit we would comment that the experience of other nations does not make the US seem anywhere near as superior in terms of effective freedom of speech as most American commentators portray their country in this regard.

Systems operating elsewhere:

For purposes of comparison with the systems of other countries we propose to ignore the downright repressive regimes of the world and indeed those countries speaking a language other than English since some of the subtleties of decisions get lost in translation.

That leaves four prime examples - Australia, where the Australian Communications and Media Authority judges editorial and programming breaches in relation to industry codes; Canada where the first stage for a complaint is the Canadian Broadcasting Standards Council albeit the Canadian Radio-television and Telecommunications Commission (CRTC) sometimes steps in when a complainant finds CBSC rulings inadequate; Ireland where the Broadcasting Complaints Commission of Ireland (BCCI) deals with all broadcasting complaints and issues adjudications; and
the UK where media regulator Ofcom issues regular bulletins relating to complaints against broadcasters and has the power to impose fines albeit these are only applied in cases of more serious breaches.

All of the watchdogs concerned are complaints-driven - they do not censor reports prior to transmission - and unlike the US they all require broadcasters to retain a recording of their output and may call for the recording to review what was actually transmitted and its context rather than relying on a complainant's version counterbalanced by that of the broadcaster.

They all adjudicate on the basis of similar categories - of editorial standards including bias and offensive content and of fair treatment of individuals and organizations. It is not possible to gauge the degree to which their existence "chills", to use a US expression, the freedom of speech exercised by broadcasters but our observation in general is that we hear just a strong reports from broadcasters of all the countries involved as the US apart from the nature of the language used - the US is far more intemperate - and restrictions affecting sexually graphic or biased reports where Canada in particular has fairly regularly ruled against US hosts whose syndicated broadcasts had been transmitted by free-to-listen terrestrial broadcasters: In Canada, as in the US and elsewhere subscription and Internet services where a conscious decision has to be made to access a programme are not subject to the same restrictions.

So what effect do these rulings have? They certainly leave some hosts upset that their bigotry and ignorance have been the subject of a ruling that their station has to air and in the case of CHOI-FM in Canada the continuing breaches of rules by host Jean-François (Jeff) Fillion and part-time co-host André Arthur were cites as a reason for not renewing the station's licence (See RNW Jul 14, 2004).

It would seem logical, therefore, to deduce that the rules have some effect but that in general it is not a fear of financial penalties - the CHOI case was a one-off where the hosts and station knowingly defied the regulator- that is the determining factor for most of the time since the main sanction is a ruling against the station that has to be broadcast by it.

Are these countries less"free" for broadcasters?

The argument that the rules "chill" freedom of speech is thus valid to a degree but in practical effect we think it more a matter of licence than liberty and we do not consider there to be a major regulatory impact compared to the impact of other factors and the potential penalties that the FCC can now levy for indecent or obscene transmissions make it one of the most restrictive regimes in this regard.

So what of politics, for example, or slandering and misrepresenting individuals? In the first case we would point to two examples that seem to us to exemplify pressures that are far greater than those of the regulator.

In the UK, the government pressure on the BBC concerning allegations that it had misrepresented Iraq's possession of weapons of mass destruction led to government setting up the Hutton inquiry and the regulator was virtually irrelevant compared to the power of the state.

In the US, the Dixie Chicks comments about President George W. Bush did not lead to official sanction but the decision by many stations to stop airing their recordings and the abuse piled upon them would certainly have had a far more chilling effect than any considered adjudication by a regulator that in the case of four we have named would almost certainly have ruled that there was no breach of regulations - Natalie Maines after all did not misrepresent the President or abuse, but said " "Just so you know, we're ashamed the president of the United States is from Texas" - very mild remarks compared to some of the abuse heaped on, for example President Clinton or his wife, by various hosts.

Overall therefore it seems to us that there has been little effect of the regulations on serious discussion of issues although the nature of those discussions are more temperate than in the US - if indeed the term "discussion" as opposed to manipulated propaganda to the like-minded should be applied to much US talk radio.

The US experience.

Despite all the outcry by conservative hosts in the US - maybe fearful that their incomes could be hit - we can find no strong evidence that the US in the times of the Fairness Doctrine did indeed operate in an atmosphere where the regulators seriously constrained freedom to express opinions and we would argue that other factors - racism in the south for example - did far more to chill speech than the fear of a regulatory slap on the wrist.
It may also be, of course, that given the penchant for ludicrous legal cases and acceptance by many in the US that of giving way to extortion because it is cheaper than fighting a case did in fact introduce a multiplier effect that chilled speech but we would contend that this is not a matter of regulations so much as of the nature of US society.

Nevertheless given that nature it would seem that to re-introduce such rules is and should not be on the cards albeit we do think the US could do with a rather better system of allowing individuals in particular to gain corrections of misrepresentation of their views.

Thoughts from others.

Finally in the context of the above, we felt it worthwhile to reproduce some comments made by others.

First then Viacom chairman Sumner Redstone in 2004 who in defending his decision to support Bush despite admiration for Democratic presidential candidate John Kerry: "A Republican administration is better for media companies than a Democratic one." Not much of the public interest there!

Next Steve Rendall from a 2005 article posted by FAIR (Fairness and Accuracy in Reporting) under the headline "The Fairness Doctrine. How we lost it, and why we need it back "(available from this link) that concluded, "What has not changed since 1987 is that over-the-air broadcasting remains the most powerful force affecting public opinion, especially on local issues; as public trustees, broadcasters ought to be insuring that they inform the public, not inflame them. That's why we need a Fairness Doctrine. It's not a universal solution. It's not a substitute for reform or for diversity of ownership. It's simply a mechanism to address the most extreme kinds of broadcast abuse.

And finally from the UK Guardian two excerpts from the 1921 essay by C.P.Scott, the editor of the then Manchester Guardian to celebrate the paper's centenary and his 50th anniversary as editor - an essay most famous for saying "'Comment is free, but facts are sacred."
Technology and the other options now available have changed but the thought behind the essay remains of value:

"A newspaper has two sides to it. It is a business, like any other, and has to pay in the material sense in order to live. But it is much more than a business; it is an institution; it reflects and it influences the life of a whole community; it may affect even wider destinies. It is, in its way, an instrument of government. It plays on the minds and consciences of men. It may educate, stimulate, assist, or it may do the opposite. It has, therefore, a moral as well as a material existence, and its character and influence are in the main determined by the balance of these two forces. It may make profit or power its first object, or it may conceive itself as fulfilling a higher and more exacting function."

And later, "Character is a subtle affair, and has many shades and sides to it. It is not a thing to be much talked about, but rather to be felt. It is the slow deposit of past actions and ideals. It is for each man his most precious possession, and so it is for that latest growth of time, the newspaper. Fundamentally it implies honesty, cleanness, courage, fairness, a sense of duty to the reader and the community. A newspaper is of necessity something of a monopoly, and its first duty is to shun the temptations of monopoly. Its primary office is the gathering of news. At the peril of its soul it must see that the supply is not tainted. Neither in what it gives, nor in what it does not give, nor in the mode of presentation must the unclouded face of truth suffer wrong. Comment is free, but facts are sacred. "Propaganda", so called, by this means is hateful. The voice of opponents no less than that of friends has a right to be heard. Comment also is justly subject to a self-imposed restraint. It is well to be frank; it is even better to be fair. This is an ideal. Achievement in such matters is hardly given to man. We can but try, ask pardon for shortcomings, and there leave the matter." (RNW Note: The whole essay is available online at this link from the Guardian).

We in the end would think C.P. Scott worth all the US hosts bundled together in terms of character but do realise that this is not something that can be imposed by law or regulation.

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