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FOREWORD
“Television writes on the wind,” as one President of the United States put it.1 “There is no accumulated record which the historian can examine later with a 20–20 vision of hindsight, asking … How fair was he tonight? How impartial was he today? How honest was he all along?” That question of fairness has preoccupied American Presidents ever since Calvin Coolidge talked into the first carbon microphone. It must also concern the millions of citizens who depend upon radio and television as their swiftest and often primary source of news. It was this concern of the Congress and the Federal Communications Commission which created the Fairness Doctrine.
Once, in a classroom of journalism and law students at Columbia University, I experienced one of those awkward moments when a seemingly elementary question forced my rhetoric to outrun my analysis. The question was, “What are the origins of the Fairness Doctrine, and what is the relationship of the Red Lion case to Brandywine and Carl McIntire?” The answers satisfied neither me nor the class. Subsidiary questions from the same student: “How did the landmark Red Lion case get its name, and if the equal-time rule is different from the Fairness Doctrine, why do both regulations contain some of the same language?” Further, “Why did Red Lion reach the Supreme Court and how long did it take?”
I finally sought relief by saying that I did not know, and I promised to be better informed by next week. The answers took two years, and involved a trip to Red Lion, Pennsylvania, and a twenty-thousand-mile excursion through the fifty-year thicket of regulatory history. It also involved a search through the murky record of the 1964 presidential election, in which the roots of Red Lion are intertwined. More than seventy-five participants in this drama were willing witnesses, although a few will not view the facts exactly as I do, and not all will share the conclusions I reach.
One of the earliest lessons I learned as a documentary producer was to keep the focus narrow, to use the “little picture” to illuminate the whole. In this inquiry the larger picture is broadcast regulation and the quality and freedom of radio and television news in America. The small picture is a view of the Fairness Doctrine, one hopes without the subjective bias of one who has spent all his professional life practicing or teaching journalism. This book is basically a documentary about Red Lion, its ghosts and a series of other fairness cases which grew out of that historic decision. It is not intended as an examination of the equal-time provisions of Section 315 of the Communications Act of 1934 (which apply only to elections). The equal-time provision is a crucial subject for another book, perhaps to be written in the wake of the 1976 election, when the stopgap decision making, confusion and posturing involving debates, news conferences and “bona-fide news events” concerning candidates have subsided sufficiently to determine whether Section 315 should be repealed or drastically revised. This volume does not concern itself directly with public broadcasting, prime-time access, violence on television, multiple or newspaper ownership, children’s programing or any of the other critical, yet unresolved conflicts of our national communications policy.
The story of Red Lion is traced in detail, not only because of its impact on broadcasting, but because it dramatizes the method by which a well-intentioned law can be manipulated to mute “noxious views,” as perceived by one group of politicians. Red Lion also provides an opportunity to study the complex route by which an obscure case, involving air time costing less than the retail price of one copy of this book, worked its way up through the regulatory process to the Supreme Court of the United States.
One of the temptations I have tried to avoid is projecting the founding fathers’ eighteenth-century vision of free speech to the limited-access miracle of telecommunications in the last third of the twentieth century. Their Constitution, and especially the Bill of Rights, is a constantly evolving instrument, and the prior-restraint, freedom-of-the-press protections we live under are much more the product of Holmes, Brandeis and Black than of Jefferson, Madison or even Patrick Henry. To claim that they would turn in their graves at the idea of the Fairness Doctrine, or at the thought that the First Amendment does not apply absolutely to radio and television, is, to quote historian Leonard Levy, to “anticipate the past by succumbing to an impulse to re-create it so that its image may be seen in a manner consistent with our rhetorical tradition of freedom, thereby yielding a message that will instruct the present.”
Newspersons are comforted by the Jeffersonian ideal that “our liberty depends upon the freedom of the press and that cannot be limited.” But there is equal discomfiture in Jefferson’s 1804 letter to Abigail Adams: “While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states and their exclusive right to do so.”3 Indeed, Jefferson’s draft of the First Amendment was considerably less absolute than Madison’s and that which the Congress finally adopted.
In anticipating the past and projecting the 1791 Bill of Rights, each segment of our society has selected its own sacred cows. Journalists seek their protections in the absolutism of the First Amendment words: “Congress shall make no law … abridging the freedom of speech or of the press …” Others interpret the First Amendment to mean that Congress did not surrender its censorial power only to have it monopolized by powerful corporations answerable primarily to their stockholders. “Freedom of speech for whom?” asks one scholar. Caught between those two extreme positions is the viewing and listening public. To bridge that gulf between protection of the broadcasters and the public’s right of access on controversial issues of public importance, the Fairness Doctrine was formulated.
Whether this regulatory apparatus, constructed by lawyers and politicians on an ad hoc basis to meet the sudden stresses of a communications revolution, has become a strait jacket is the crux of the current constitutional debate. In this confrontation, all ideological labels lose their meaning. Strange alliances form: Justice William O. Douglas, Reverend Carl McIntire, Sam Ervin and the presidents of CBS and NBC on one side, against Chief Justice Warren Burger, Nicholas Johnson, Senator Robert Griffin and the president of ABC News on the other. Judge Wright is correct; you can’t tell the good guys from the bad guys.
F.W.F.
October 1, 1975
Columbia University, New York City
