This Number Of The Penguin Post Is Exclusively Devoted To A Consideration Of The Fairness Doctrine”I think we should all be fair and balanced, don’t you?”

That’s Democrat Chuck Schumer talking. He’s a Senator representing New York. A lot of VIPs agree with him. Here is a representative sample of their heartfelt sentiments:

“It’s time to reinstitute the Fairness Doctrine. I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.” Those words come from Democrat Senate Majority Whip Dick Durbin, representing Illinois.

“I believe very strongly that the airwaves are public and people use these airwaves for profit. But there is a responsibility to see that both sides and not just one side of the big public questions of debate of the day are aired and are aired with some modicum of fairness.” Democrat Diane Feinstein, Senator from California, holds those views.

Here’s the source for the above quotes.

The fairness doctrine: think of it as the bureaucrat’s way of officiating over a political debate broadcast on the radio. No, not moderating the discussion, but drafting the rules by which all political discussions on the radio are broadcast, making sure one side does not dominate. This is done in the public’s interest, or so the story goes. It’s not in effect now, so radio stations are free to air whatever programs bring in the most advertising revenue, but support for a re-imposition of the old government-imposed rules is growing. After all, it’s only reasonable to be fair, and who wants to be unbalanced? What’s good about making decisions ignorantly — that is, having ignored one side of the question?

As reasonable as those questions appear to be, they are clever distractions meant to lead us away from a thoughtful consideration of the fairness doctrine. Their answers are unnecessary and unhelpful.

If we ignore the red herrings, we can see that Schumer and his colleagues have given us a textbook example of hypocritical deceit. A closer look reveals that their political chicanery is an assault on Liberty. These people are, to put it precisely, fascists.

Demonstrating the truth of that assertion means returning to the fundamental ethical insights we inherited from the Enlightenment. They include concepts the cynical Schumer Gang hopes you will ignore.

Introductory Clarifications And Preview Of Coming Attractions

The fairness doctrine is not legislative, but a name applied to a number of diverse ad hoc regulatory policies of the (quasi-legislative, quasi-executive, quasi-judicial) Federal Communications Commission. The fairness doctrine comes and goes as the man in charge of that agency wishes (it has gone, thanks to Reagan). Now Nancy Pelosi, who’s fed up with being scolded back, is promoting the return of the fairness doctrine. Congress may well take the gloves off and pass a law that would give some unspecified version of the doctrine an unprecedented durability.

President-elect Obama has claimed he does not want to restore the fairness doctrine. Can he be believed? No one knows, but given his multiple contradictory positions on the second amendment, taking him at his word is a gamble based on empty faith.

The courts have been involved in the history of the fairness doctrine, and to their considerable discredit. For example, the federal supreme court has stated that the practical limits imposed on radio (a finite number of frequencies) and the fanciful infinite potential of newspaper publishing (there can be any number of newspapers) are somehow significant. This inane rationalization asserts that an injured party must be permitted to respond to opinion reported over the radio airwaves, while he has no right to claim space in a newspaper to rebut attack. After all, the court said, the aggrieved can obtain printing presses, hire a staff, get funding from advertisers, attract a number of subscribers and readers equal to that enjoyed by the offending newspaper, and publish in his own defense. That theoretical possibility has, of course, zero probability.

There is a gap between the several versions of the doctrine as capriciously imposed by the FCC and this newsletter’s discussion of current proposals. The Penguin Post is concerned here with the principles and concepts preached by Schumer, Feinstein and Durbin, for these talking points are fundamentally important. They shed light not only on the merits of the fairness doctrine, but on the senators’ qualifications to sit in the world’s most important legislative body.

In sum: the following discussion begins with the values, ethics, and principles that are the foundation of our democratic system. This newsletter takes those values as the context, and then considers what we want and why we want it. The conclusions allow an evaluation of the options open to us, and of the people who wield power over us. The ultimate issue, how the governed should deal with their political leaders, is thereby clearly illuminated.

Every political discussion in the West should begin with those fundamentals and proceed in this way. In most of the world, such discussions are irrelevant because the fundamentals are not in place.

Control

The fairness doctrine deals with speech and the press. It attempts to manage the expression of opinion. Its claimed purpose, to bring about a fair and balanced discussion, is irrelevant. The single consequential fact is that the fairness doctrine is about management of speech.

Managing something means controlling it to some degree. It cannot be otherwise.

The fairness doctrine would increase the government’s control of commercial radio broadcasting. The first amendment to the US constitution specifically prohibits the government from interfering with speech and the press, so before we agree to extend regulatory control over any aspect of these activities, we must understand what that amendment requires — and why it requires it.

The Value Of Unfettered Communication

There is history here, and the voice of wisdom drawn from experience. The framers of our constitution knew exactly what they were doing. They knew a truth that bears repeating: proper governance requires the free flow of information.

They gave us a founding document that ignores Plato’s sneering comment, “Even the asses go about the streets of Athens, braying democratically.”

The Liberty that Plato despised is stoutly defended in our constitution. Fools, liars and Chuck Schumer are all free to spout nonsense, because of that Liberty. The revolutionary insights proceeding from the Enlightenment reinvented politics in ways that most of the world still does not understand. We have been given a gift of surpassing value, and we must assure that our great-grandchildren inherit it.

We cherish our political ethics partly because they are our heritage, but mostly because we know their worth. We realize that the government must be our servant, not a censor that evaluates opinions and then configures them for us. We know that a government’s opinion is too often the voice of an authority devoid of wisdom. We know we dare not allow bureaucrats to do our thinking for us.

These truths are not always or everywhere obvious. Some will ask why a fool or ignorant person should be permitted to express his opinion, for example. The framers of our constitution knew that silencing anyone requires a censor, and they knew that a censor is always a tyrant. To protect us from tyranny imposed by our own government, they protected speech and the press.

The Government Shall Not See To The Quality Of The Public Discourse

It is not the government’s task to assure the fairness, sanity, rationality or balance of opinions.

There is no Department of Truth that puts its seal of approval on opinion, or even on scholarly research; that is so because we know a government nihil obstat would necessarily involve censorship.

Schumer and his colleagues might respond that of course the government has an interest in truth and fairness, as the existence of libel and slander laws proves. “Clearly,” they could argue, “the law militates against unbalanced, unfair commentary.”

That would be a wrenching distortion of the intent and function of the law, however. In fact libel and slander laws have three qualities that make them irrelevant to a discussion of the fairness doctrine: first, they are not preemptive (but the fairness doctrine is); second, they address the harm done to victims and award compensatory damages (features absent in the fairness doctrine); and third, they are not regulatory, but operate only when invoked by the damaged party.

When it comes to assuring that fair, balanced or even accurate information is available in the public market, the government owes us nothing.

That is as it should be. The policy of non-involvement is implicitly endorsed by the absence in the constitution of any governmental commitment to fairness or balance; that document was drafted to protect the individual, set up a governing framework, and divide up the power. Fairness and balance are not mentioned at all. Like taste, they are matters of individual opinion, and beyond the purview of decent authority.

Schumer claims he hopes that the government can help people think straight. If it were true, it would be just silly Utopian daydreaming, but that is not at all what the senator is up to.

A Little Censorship, Like A Little Arson, Is No More Ethical Than A Lot Of Censorship

Of course Schumer would say he does not propose to censor anybody. He claims he wants to assure fairness, and that means striking a balance between points of view.

That’s easy to say and impossible to do. The attempt will resemble a Keystone Kops farce. How can civil servants evaluate radio shows and pair them with their equal but opposite numbers? The task defies useful definition, let alone accomplishment. Balance in broadcasting is a Quixotic goal.

A few details will clarify why that is so. Radio programming cannot be balanced unless the shows are evaluated in advance, which means someone must listen to the opinions and label them them according to their political orientation and the intensity of the discourse (is it a rabid rant, or a philosophical discussion?). Then the authorities have to determine what should be broadcast in order to counter the viewpoints of each show, achieving a balance. It’s as if conservative plus liberal must always equal zero, with the opinions cancelling each other out. Anything less than Zero Sum is not balance, now is it?

That’s censorship — for at some point, the Powers That Be will have to say, “This radio show is exempt speech. No need to counter it. That show, on the other hand, is rabidly partisan, and it has to be pitted against…let’s see…no, not that program…ah, this one.”

In defending his vague plans for a new fairness doctrine, Schumer would certainly claim that fastidious attention to detail is not necessary. You just line up each “wingnut” talk show opposite some kind of “moonbat” show, and you are done. The cynical old joke fits: “Close enough for government work.” But then there’s this equally hoary maxim: “If a job is worth doing, it’s worth doing well.”

Well, what happens if no suitable counter for a far-right show is found? Will the government prevent the broadcast of the unanswered opinion?

Yes. Eventually something will have to give. A radio station that programs eighteen hours of “wingnut” talk and six hours of “moonbat” discussion is not balanced. Exactly what happens in that event, and how rapidly warnings and penalties escalate into license revocations, will depend on how draconian the legislation crafted by the Schumer Gang is.

No agency should have the power to censor radio programming — even if it does a slap-dash job of it.

Schumer not only challenges that, but he implies that we should listen to government-approved shows that attempt to refute our views, all in the interests of fairness and balance. Never mind that it is our individual choice as to whether we even want to be fair in the first place.

The fairness doctrine assumes — without admitting that it makes the assumption — that to be effective, it need work its will on the radio stations only. But the goal is the fairness and balance of the public, as Schumer has put it (“…we should all be fair and balanced….”). How can the government impose balance on us, as long as the listener is free to tune out programs he does not want to hear?

Of course Schumer emphasizes that he’ll settle for a “modicum” of fairness and balance, rather than insist on maximum compliance from the public. Can that modicum be achieved without any censorship? By definition, no. Remember: arson is not all right if it’s just a little arson.

There are lessons here, cautionary tales for the wise. One tells us to beware any law the enforcement of which is necessarily capricious, grossly imperfect and always ad hoc. Federal courts have overturned such legislative ink-spilling as unconstitutionally vague, but not nearly often enough.

The electorate should be exquisitely suspicious, as well, of laws that create yet more extensions of intrusive government oversight and control — of anything.

There Is No Support In Our Founding Ethic For The Fairness Doctrine

Pondering the lunatic nature of the phony quest for fairness and balance may lead one to ask to what degree the federal government already controls speech and the press. Do federal and state laws tell us we cannot express ourselves as we wish, and as much as we wish?

We are prohibited from possessing pornography, and we are not permitted to reveal state secrets. Of course the pornography laws are partial and selective, but they will deposit you in prison if you have kiddie porn on your computer.

Those are breaches of our absolute Liberty that the supreme court has declared appropriate. The rationale: some forms of pornography necessarily involve the breaking of laws protecting children. Others are not considered speech/expression (yes, it is a shaky concept, but so far it’s holding up). And as regards national security, the issues continue to evolve…very deliberately.

Then there’s the Food and Drug Administration, a sharp-fanged bureau that takes a dim view of the advertising of quack remedies. Fraud is illegal, so this agency does have a point, in spite of all its many imperfections. Few would want to see the FDA abolished. Fundamentally reformed, oh, yes. Still some authority rather like it is needed.

The degree of Liberty enjoyed by the US press and people is extraordinarily high; the censorship we encounter daily is imposed by the biased press, not the government.

The Slippery Slope Of Unwholesome Precedent

Now note carefully the logic of this assertion made by Senator Schumer: “The very same people who don’t want the Fairness Doctrine want the FCC [Federal Communications Commission] to limit pornography on the air. I am for that…. But you can’t say government hands off in one area to a commercial enterprise but you are allowed to intervene in another. That’s not consistent.”

Here Schumer’s justification for the fairness doctrine is not public safety, or enforcement of tax laws, or anything rational; it’s consistency.

Where in the world did that come from??

By this reasoning, the federal government can tightly regulate — micro-manage — every business in the nation. Some regulation, such as imposing federal taxes, would justify more regulation. Consistency: another word for what we could call “regulation creep.”

Well. Schumer might be a bit nonplussed if we asked him how pornography is like political opinion.

Perhaps the senator would be more comfortable, and the point would be more obvious, if we rephrased it as a listener’s demand: “Because I don’t have pornography on my radio, I insist that someone broadcast a refutation of the views of Hillary Clinton on US policy toward Israel. It harms me when all I get is her opinion. The government needs to make sure I get fair and balanced reporting, so I want somebody to rip Hillary’s babble apart on the air.”

Is that how the news media are supposed to operate?

File that question away for future reference and notice that now a stealthy aspect of the fairness doctrine has come into view. It’s a powerful concept, closely related to “regulation creep,” that lurks behind Schumer’s absurd rhetoric. It operates on the assumption that a legal precedent regarding regulatory enforcement, once established, is generally applicable. Regulation, in other words, is scalable, and needs no external justification to expand. Think of it as governmental kudzu.

The dismaying result: if you start regulating in one area, you can later use that as a precedent to justify regulating in a second, unrelated, area. “We license cars and dogs, so why not license firearms? In fact, why stop there? Let’s license everything that is potentially dangerous!”

Bogus logic like that will get you onto the slippery slope in a trice, and then…swish! Note as well the danger of resorting to precedents that are themselves bad practice or bad law.

The Sharp Focus Of Repression

In order to keep up with Schumer, one must be aware of what the rascal is not saying. He has no concern whatsoever for the print and video news media. Yet for years, academics and social critics and now denizens of the internet have been documenting the obvious bias of journalism in general. True, some “progressive” agents provocateurs insist that the news distributors are all exponents of Neanderthal political views, but the facts are otherwise. Newspapers, news magazines and almost all TV are overwhelmingly biased to the left.

But Schumer and other would-be censors demand that radio, and radio alone, be reformed by the government.

When Schumer and Feinstein and Durbin tell you balance is essential in the delivery of information, know that you are listening to brazen hypocrites.

Aren’t both censorship and fascism varieties or manifestations of hypocrisy? Isn’t hypocrisy a prerequisite for all fascists and censors? It seems so, and it seems even more certain that the link between fascism and censorship is forged of case-hardened steel. Seeing the one, always look for the other.

Censorship is in every instance used to achieve specific results. It is helpful to ask what those results will be. In the case of the fairness doctrine, for example, the resulting mandatory changes in programming (the censorship, in other words) will distort the marketplace. The mechanism and the consequences are as clear to Schumer as they are to anyone. Leftist radio shows have tried repeatedly and always failed to capture a significant share of the market. In order to counter, or balance, each “wingnut” show with a “moonbat” show, the radio stations will have to eliminate successful shows and introduce duds. A cascade effect will set in, and the nature of talk radio will be fundamentally altered, perhaps even destroyed.

Opponents of the fairness doctrine are cautioned that it is unwise to become preoccupied with its results. The egregious aspect of the fairness doctrine is not so much what it will do, nasty though that would be, but the fascistic philosophy of its proponents. These people are, after all, in power. The electorate in a democracy needs to know what kind of people are conducting the nation’s business.

To The Schumer Gang, Fairness Is Just A Useful Word, Not An Ethic

No one knows what the fairness doctrine’s backers will try next, but everybody knows that the contemporary political right abjures censorship, and always will. Instead of advocating repression, critics of the media — and that certainly includes this newsletter — have repeatedly provided evidence of the tsunami of distortion that has inundated the print and video media. The point is only to chronicle, prove and refute the flood of propaganda.

Yes, there has been rejoicing on the right at the decline of the legacy media, and an appreciation of the usefulness of the internet in so far as it supports honest reporting. But never, never a call for censorship.

Contrast that with Schumer’s stance. The man whines about fairness, and then proposes to use censorship to bludgeon his opponents.

A New And Dangerous Principle In Law

The FCC has some concepts of community service that help to define the requirements for broadcasting licenses, but they are trivial. The fairness doctrine is monumental by comparison, for it will mandate programming changes on the claim that the audience’s reasoning processes must be tended.

Balance and fairness have, please note, no standing in the constitution as prerequisites for licenses to express oneself — or to plan which speakers shall be allowed to take the floor. The Schumer Gang introduces these virtues as if they have long been the qualifications one must have to engage in political debate. That’s a tacit lie.

Schumer’s lack of respect for the public is obvious. He believes people are too stupid and/or too ignorant to realize that he’s trying to invalidate the Liberty that is our heritage.

Given that level of contempt for the populace, it is peculiar to hear the censorious California Senator Feinstein reminding us that the public owns the electromagnetic spectrum — as if that legal fiction somehow mattered. It does not. All it means is that the federal government mistakenly assumed that if it did not allocate frequencies to licensees, chaos would result.

The fairness doctrine tries to perfect the reasoning of the electorate; that condescension has nothing to do with Hertz and Watts. Feinstein is simply attempting a variety of the Slippery Slope scam: a bit of government authority here (in a technical area) is the justification for imposing even greater authority there (in programming).

Censorship Is Involved

It is to be expected that Schumer, sophist that he is, might howl that he is not censoring any speech, but merely telling a news and opinion medium to do things properly.

How, exactly, does that differ from the policy of the Nazi government toward German newspapers?

It is different only in that the Nazis did not ration space in the papers to the opposition. Schumer passes his proposal off as ethical because he would allow some folks to say some things some of the time.

The distinction between Nazi practice and Schumer’s instincts is a matter of degree, not a matter of kind.

The fairness doctrine, however mild it may seem, must provoke a response as passionately intolerant as the response to any tyrant. The electorate must address the government in terms such as these:

It is not your role to tell us how to reason and evaluate information, nor will it ever be. Each of us will decide what is fair and what is balanced. You have no mandate to make the slightest change in our individual right of access to information. We forbid you to police our thoughts and dictate our judgments. We forbid you to interfere with the press in all its forms. We require that you respect and obey the limitations placed on you by the Bill of Rights. Remember that the heritage of our nation is revolutionary; know, therefore, that the requirements we impose on you will be enforced by whatever means necessary.

Though these demands express our core values and are already explicit in our politics, Schumer cannot live by them.

The senator literally does not believe in the sovereign dignity of the individual. He believes most people are comfortable with a paternalistic government that knows best and guides our thinking accordingly. By appealing to this gullible, post-modern herd of sheep, he hopes to craft legislation that will muzzle his most articulate opponents.

That’s why it is accurate to call Schumer a fascist.

The Free Market And The Free Individual

The practice of free speech in a free market tends to seek the truth and dispense with rubbish. The absurd attracts critics, and the irrelevant becomes fragile. Those are natural processes inherent in the free market. Censorship frustrates them.

Until it is widely understood that statements such as “With freedom of the press must come responsibility” are deceitful calls for repression, fascistic laws like the fairness doctrine will remain popular.

The Burden We Bear

Foes of the fairness doctrine must refute each and every fake proposal Schumer and his allies make. The anti-democracy Democrats claim their pristine motives impel them to “help” us develop our political opinions properly; that is a lie, and a convincing case can be made for the truth.

Then every aspect of the moral issues must be explained, so the proposed legislation is seen as the rejection of our founding values it is. When citizens understand that the fairness doctrine mocks the first amendment, they will choose Liberty over censorship.

Because the schools do such a poor job of teaching civics, explaining just a portion of the Bill of Rights can be a daunting task. For many folks, there is a lot to clarify. Further, no debating points can be ignored, for this is not just partisan politics played rough. In fact…

…cold, unblinking fascism is staring the nation in the face.

As big and difficult as the task is, it must be accomplished. If the enemies of Liberty can sell the public a bill of goods, they will. That forces the other side to respond at length.

Our Responsibility To Liberty Begins With Our Responsibility To Ourselves

You must assert your birthright. You and you alone are fit to decide what you will watch, read, listen to, say and write. Oppose authority figures who tell you that there is more than enough of your sort of opinion available, so some of it can be discarded.

Remember that many of the greatest crimes against humanity have been committed by people who justified them as beneficial to the victims. When a senator tries to abridge your Liberty and tells you that he’s doing it for your own good, tell him to stand down — and then do what you can to remove him from his office.

The fairness doctrine is fascism. It is a misanthropic partisan attempt to repress opinion. It is rotten at its core with contempt for your intelligence, your individualism and your rights. The arguments for it are absurdities promoted by cynics who themselves do not believe them.

The fairness doctrine’s genuine and sole intent is to destabilize a segment of an industry that is meeting the needs of a large group of consumers, making money, driving the economy, and stimulating debate.