Guest post: Rush Limbaugh and the Fairness Doctrine

[The recent unpleasantness with Canada’s most litigious punk rocker has left the controversial and hilarious Skippy Stalin temporarily without a blog home, so I’ve invited him to contribute some guest posts. – DP]
Rush Limbaugh is known for nothing so much as his rather flexible views of the Constitution. Once upon a time, Limbaugh was what is considered a “strict construction list,” meaning that if a given right isn’t explicitly enumerated in the Bill of Rights, it doesn’t exist. This was the argument Rush and ilk endlessly offer against abortion rights.
Then Rush had a minor misunderstanding with the Florida state’s attorney’s office about his prodigious appetite for prescription painkillers. No sooner was his physician’s office raided by the fuzz than Mr. Limbaugh discovered the right to privacy. Or his lawyer, Roy Black discovered it for him. Amazing how that happens, ain’t it?
Well now Limbaugh has discovered a new and exciting interpretation of the First Amendment. All it took was the raise of the Fairness Doctrine, zombie-like, from the grave.
Rush wrote an unintentionally hilarious op-ed for the The Wall Street Journal last week laying out his thought process.
Remember how Limbaugh and others like him wanted the federal government to amputate Janet Jackson’s right breast about five years ago? How about when they wanted to forcibly deport Bono for using the f-word during the Golden Globes? Well, things have changed and the FCC regulatory power might not be as benevolent as once thought.

I have a straightforward question, which I hope you will answer in a straightforward way: Is it your intention to censor talk radio through a variety of contrivances, such as “local content,” “diversity of ownership,” and “public interest” rules — all of which are designed to appeal to populist sentiments but, as you know, are the death knell of talk radio and the AM band?

Actually, regulation is very different from censorship, as conservatives never failed to remind us during l’affaire Jackson. Furthermore, without “populist sentiments,” Mr. Limbaugh would be pumping gas somewhere.
Then we get to Rush’s constitutional analysis, which is nothing short of priceless.

As a former president of the Harvard Law Review and a professor at the University of Chicago Law School, you are more familiar than most with the purpose of the Bill of Rights: to protect the citizen from the possible excesses of the federal government. The First Amendment says, in part, that “Congress shall make no law abridging the freedom of speech, or of the press.” The government is explicitly prohibited from playing a role in refereeing among those who speak or seek to speak. We are, after all, dealing with political speech — which, as the Framers understood, cannot be left to the government to police.

Being the total social misfit that I am, I consider myself something of a constitutional scholar. As a conservative, I believe that “original intent” is an important consideration, although not paramount. If you read the First Amendment, you’ll notice that the phrase “political speech” isn’t used. The idea that political speech deserves greater protection is a canard that created by politicians. Funny how that works, no?
Also, there’s no constitutionally protected right to have your own syndicated afternoon radio show. I checked. Limbaugh’s free speech rights would be utterly unaffected by the Fairness Doctrine. He could use his $400 million salary to start a newspaper, or he could broadcast online. Using his own resources, he could say whatever he wants.
But he doesn’t want to use his own resources. His gig involves the public airwaves. Airwaves, I would remind you, that he’s all for regulating when something that he doesn’t like is broadcast over them.
For the record, I don’t support the Fairness Doctrine for the simple reason that it’s silly. If liberals were so defenseless, I hardly imagine that they’d be in a position to implement it in the first place. Furthermore, the marketplace has spoken, and it prefers its stupidity unbalanced by boring liberals, be they failed sportscasters or anonymous California lesbians. But the doctrine is decidedly constitutional. I know that because it survived all the way to 1987 without serious challenge.
Besides, the Obama administration isn’t going to re-impose it in any event. The don’t need a battle that ugly for something that brings so few tangible benefits. But to listen to Limbaugh, you’d think that the President was about to name Amy Goodman to the FCC.
And that’s ultimately why you shouldn’t listen to Limbaugh.
Skippy S.

23 thoughts on “Guest post: Rush Limbaugh and the Fairness Doctrine

  1. Fred says:

    wonder if that “Fairness Doctrine” will cut both ways ?
    Right wing stories on Huffington Post and the Daily Kos ?
    Reality based programming on all the PBS stations instead of the socialized “everyone’s a victim crap” that PBS pollutes the airwaves with ?
    Fair is fair after all,

  2. Scott Merrithew says:

    On the other hand, if you ignore the personalities involved and address the issue itself, it is easier to see the context of what is being said. The constitution was written for the people, not for the government, and virtually all rights contained in it and its amendments are there to protect the people FROM the government. It is this stance that makes the US republic unique among all nations of the world, including Canada.
    With this basis in mind, it is much easier to assess efforts to squelch free speech.
    Now, the fact that it is the love him or hate him character of Rush Limbaugh, really makes no difference. The intentionally misleading label, “Fairness Doctrine” is used to disguise a real campaign to silence voices that oppose the “Politically Correct” parrots in the Main stream media TV news outlets. It is hard to turn on any radio or TV station and not get a liberal point of view. Finding a conservative point of view is much harder, with only a handful of conservative voices managing to make their voices heard, although it has gotten better over the last few years. However, the dominating success of a few conservative voices, Rush being the most popular, is embarrassing those who have been given a free pass by the 5th estate, whose function is to hold government to account. They have abrogated their responsibility, and conservative radio has picked up the slack. The loss of control over favourable news coverage is the only reason Obama, Clinton, and other high profile liberals feel it necessary to somehow legislate what they used to take for granted.
    Stalins, Skippy or otherwise, are free to voice their opinions, and Damian has felt comfortable to provide a platform for Skippy, who is having some troubles in that respect.
    Ultimately, your best measure of validity is the number of outlets willing to provide time for your message. Skippy has 1 that we know of.
    Limbaugh currently has over 600 radio stations happy to give him 2 or 3 hours daily, because their ratings and ad revenue skyrocket when they do. What is more fair than the vox populi?

  3. Sigivald says:

    I don’t know that a doctrine’s survival for some decades is proof it’s Constitutional.
    (Or that it’s Constitutional now, if we grant a Compelling Interest of the day, see below.)
    (Which enumerated power is that, again, that grants the State the right to compel presentation of any subject matter all by anyone?
    One might infer, correctly, that I don’t for a moment buy the Senate Report’s hand-waving about “limited spectrum” meaning that “access” must be enforced. That was barely plausible in 1969; it’s a pathetic joke now.)
    I’m further unsure that political speech was not the *primary* interest of the Founders in drafting the First Amendment, despite the word not being included in the text.
    After all, since the State was also prohibited from establishing a Church, that got one effective freedom of religious speech; and there had long been a common law right of free non-political speech that wasn’t in dire need of defense.
    Political speech was, by all accounts I’ve read, the impetus of the First Amendment, as being the most (almost only) important sort of speech that would *need* defense from the power of the State. The examples of the British State attempting to silence its American critics were, after all, still close at hand and deeply resonant.
    (I am nonetheless in agreement about Limbaugh’s general utility, and about the probability of a reintroduced Fairness Doctrine.)

  4. Andre says:

    The whole issue of imposing fairness because of the “public airwaves” is a crock. The issue is that clearly, Liberals have tried talk radio and have miserably failed at it over and over. So, rather than admitting that their ideas have little traction with the public, Liberals decided that it would be better to dictate what the public will listen to. The name “fairness” doctrine is right out of Orwell. Call something by its opposite to make it more acceptable. “Work makes you free” was hanging over the entrance of concentration camps. “People’s Republic…” for all the communist countries where people had no say in anything, etc… The very fact that it is called the “fairness” doctrine by Liberals shows that it is anyhing but that.
    This is about slowly censoring conservative ideas into oblivion so that Liberals don’t have to keep justifying their indefensible positions on abortion, accomodations with Islam, anti-semitic ideas repackaged as anti-zionist ideas, gay marriage etc…
    On all these themes and others, survey after survey show that the majority of people disagree with Liberals and so, in order to shut down the debate, Liberals want to silence the last medium they do not control yet i.e. talk radio. Think about it…the vast majority of TV and cable news stations are Liberal, so are newspapers, movies, etc…the only one left that is not (yet) controlled by Liberals is talk radio.
    So, I have no problem with Liberals trying to control talk-radio, but at least be honest enough to admit that this is the one and only reason you are pushing this fascist doctrine forward, OK?
    This has nothing to do with Fairness. It has everything to do with forced social engineering.

  5. Dara says:

    I’m amazed….
    They still have AM Radio?
    Anyone can broadcast digitally in much higher quality for a much lower investment. Shoutcast has been around for years and offers an easy entrance to the internet radio market. At AM quality, you could basically piggyback 20-30 listeners on your home connection without spending a penny more than you usually do on internet.
    If you want to get more serious, you’d need some rack space at a web hosting company, but the costs are minimal, I’ve seen prepackaged shoutcast server deals at ~$0.40/listener/month.
    As long as the neutrality of the internet is maintained, any concerns regarding the ability to reach people “fairly” are moot.
    The way things are progressing, running your own internet TV station will become feasible soon. In a decade or so, HD could even be affordable.
    Naturally, this scares the piss out of our current content providers, which is why they are fighting net neutrality tooth and nail.
    Here’s hoping our governments ignore all the creaking fossils and just codify net neutrality so that nobody will have to worry about access to free speech.

  6. rabbit says:

    I suspect that a revamped Fairness Doctrine would not withstand a court challenge. Yes, I know that it existed for nearly 40 years, but that was at a time when the number of media outlets was limited.
    Now, however, we have in addition to the public airwaves the internet, cable, and satellite. The number of media outlets is for practical purposes unlimited. The courts needed a strong argument for restricting freedom of speech and the press then. Those arguments will not likely stand up today – indeed the courts were showing signs in uneasiness with the doctrine in the 70’s and 80’s.

  7. Ran says:

    Rabbit makes a useful observation. The Constitutional grounds for “fairness” intended censorship or manipulation are dangerous, indeed.
    Despite some of the poo-poo’s above, there are quite a few who would demand that both Radio *and* the Internet be controlled in an effort to re-establish the hegemony of the old MSM.
    Look, Andre put it brilliantly: “This has nothing to do with Fairness. It has everything to do with forced social engineering.”

  8. Hagbard Celine says:

    Andre is correct when he points out that this is not to do with “access to public airwaves”. That access on the AM band is granted to a person or business who can afford the licence. Then, barring any really egregious actions on their part, they are free to offer what programming they choose. What could be fairer than this?
    In 2000 Air America got started up as a response to conservative talk radio. It failed miserably. The people were not tuning in. This is the fairness of the market. A consortium got together with what they thought was a good idea, put together the financing to start it up, and then ran with it. That they did not do a good job of market research before hand is their own fault, and not that of the right wing conspiracy that must be running the AM band.
    So, now that they have failed, they seek to resurrect the Fairness Doctrine of the 1990’s. If anyone here has a memory longer than Skippy’s, they will recall that this so-called doctrine just about killed off talk radio. Why? Well, for every hour of successful conservative talk radio, a station was obliged to offer an equal amount of liberal talk radio. People were not listening, and advertising revenues declined precipitously. Many radio stations floundered. It was a disaster and a debacle, and an example of why liberals should never be allowed to govern anything more complex than a car pool.

  9. Pardon Me? says:

    “If you read the First Amendment, you’ll notice that the phrase “political speech” isn’t used.”
    Rush was clarifying for those who might not listen to his show, but do read that newspaper, why he thinks the ‘Fairness Doctrine’ is in play.
    It is all about politics after all, and Rush’s influence, along with other conservative voices on air.
    Rush’s show is like a soap opera. Politics is like a soap opera. As more information becomes available, more suppositions, and facts, have to be brought forward.
    You have an event in the political arena. Rush comments on it in a variety of ways- factual, mocking, parodizing, condemning. The politcos screech about what Rush said, and the game is on.
    There is always another way to look at what the government is saying. Thank goodness for radio, whether AM or internet.
    We already see what happens when so many people have no clue about any of it.
    I quite prefer to hear another side to any issue, but especially when the government of the day would rather we not.
    Rush may not want to start up a newspaper. Why should he have to? People do not get most of their data any more from newspapers anyway.
    I don’t quite get your undertone or animosity in this article. To bring up his battle with pain meds totally lessened whatever else you had to say, because you mocked it.
    I don’t know how any of us would deal with becoming addicted to a pain med, or smoking, or alcohol. It happens. He dealt with it eventually, and paid a big price in the media eye. But, look at where he is now in terms of influence and popularity.
    Rush will always be on our dial, until *we* say no more, along with the many other strong independent voices out there.

  10. Dom says:

    “He [Limbaugh] could use his $400 million salary to start a newspaper, or he could broadcast online. Using his own resources, he could say whatever he wants.”
    He is using his own resources, isn’t he? He is a talent (well, you know what I mean) who has hired out his labor.
    The point you are making should be said to the liberals who want the government to force Limbaugh to give up his time so they could voice a counter-opinion.

  11. Kent says:

    You’re a brave one, Skippy, to so readily advocate political censorship. I take the prudent view that my views may not always be in favor with the Ruling Class, so best all around to keep speech free.
    Or perhaps you are simply very adaptable, not really caring which Party you have to join to get ahead? I hope you never have to find out.

  12. Not Rush says:

    Bit of a straw-man, don’t you think? It should be easy to find quotes from Limbaugh on the Janet Jackson episode or the Bono f-word incident. Yet, you’re simply presuming a position to make a point, and lumping Limbaugh in with some unspecified “they”.

  13. Bruce Rheinstein says:

    “I consider myself something of a constitutional scholar. As a conservative…”
    I’m reminded of future Senator John Blutarsky’s “When the going gets tough…” speech. Only that sort-of made sense in context.
    I suppose that what prompted James Madison, et al., to enact the First Amendment was concern that someone would ban pornography. Perhaps, as a “scholar”, you have some authority for your novel position on the First Amendment?

  14. Ran says:

    “But the doctrine is decidedly constitutional. I know that because it survived all the way to 1987 without serious challenge.”
    Bullshit. By that standard, the Spanish Inquisition was Just – Bloody thing dragged on three. hundred. years. [Finally ended in the mid nineteenth century in Mexico.]
    Sorry, but it’s just one typical example of a cluster of very, very silly statements and misrepresentations in the piece.

  15. 8bEbgcBBi says:

    Where’d they get this guy called Skippy. His arguments bear no resemblance to my exposure to Limbaugh.
    I could reverse the argument and ask how it is that people would defend Bono and Jackson on the grounds of free speech and then turn around and criticize Rush for expressing himself freely.

  16. dej rabel says:

    Do you really think that the expession or ideas is the equivalent of breast exposure and swear words.
    the concept of free speech is the ability to express ideas freely and shouldn’t be limited, & is not necessarily the same as when we decide as a society to use some decorum in the public square.

  17. Alan K. Henderson says:

    Laws against prescription drug abuse aren’t a constitutional issue.
    Physical drug addiction is very difficult to overcome. Addicts will go through desperate measures to avoid the pain of withdrawal symptoms. Most of us know about this at least secondhand, as most of us knows someone who smokes.
    Rush was legally prescribed Oxycontin for a throat condition – I forget the details, but it was the pharmaceutical alternative to undergoing a surgery that carried some risk to damaging his voice, the source of his livelihood. At the time the degree Oxy’s addictiveness was either not known or downplayed. We know now that it’s incredibly addictive.
    Jamie Lee Curtis is another example of how a legal prescription (vicodin, in this case) can lead to abuse.
    As for obscenity…this really needs to be addressed by a constitutional scholar who can provide far more detail than I on the ages-old debate over whether or not the Founders intended to protect obscenity rights with 1st Amendment speech/press protection.
    I do know that flashing a breast isn’t speech. Jackson and Timberlake didn’t own the broadcast, so they can’t claim press rights either. The networks have a strong case that they shouldn’t be penalized for content they couldn’t control.

  18. Sigivald says:

    Dara: There are these things called “cars”, and “businesses”, where a huge amount of radio listening occurs.
    The former don’t typically have an internet connection, and the latter very often don’t.
    Thus they use this thing called “radio” to acquire audio media content.
    With modern technology, AM is capable of fine results (even stereo, not that it matters much in this context).

  19. Ran says:

    Hey Sig,
    Rush draws, what, 20 millions a week? The top 12 shows draw something like 90 million individual adults on a weekly basis, roughly half the adult population – numbers roughly like that.
    AM’s real reach is better than liberals can stand, because it is the one medium they do not dominate. Can’t have that!
    Revenues are down 30% rough average but total listener volume has jumped to record levels since last summer, if memory serves…

  20. Dara says:

    I apologize for my decided bias towards the future rather than the past.
    My point is that the emerging consumer technologies open up so much opportunity for communication that “ensuring equal access” is meaningless.
    Anyone with non-filtered internet access can broadcast or receive whatever it is that they want, and for little cost.
    Any “Fairness Doctrine”, now or down the road, could be blunted against infringing on free speech as long as net neutrality is maintained.
    Instead of trying to divvy up a narrow band, such as AM, you simply ensure that the individual can access IP addresses equally instead of picking winners and making them choose from a finite list of internet “channels”.

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