As you probably know, some Members of Congress have recently indicated their desire to seek legislation to regulate what is said on the radio by reinstating the so-called Fairness Doctrine, which was abolished in 1987 after the FCC concluded that "a multiplicity of voices in the marketplace assured diversity of opinion" on our airwaves. Since then, the multiplicity of voices has significantly increased — and the case for the Fairness Doctrine is weaker than ever. Reinstating the Fairness Doctrine would muzzle political debate and free speech. I therefore want you to know that the President would veto any legislation reinstating the Fairness Doctrine.This is, of course, not unexpected. Talk radio benefits the right, since that is where the dominent talk radio shows are located. And so, the Democrats in Congress, newly in a majority, would like nothing better than to hobble their enemies with a reinstitution of the "Fairness Doctrine".
But what is interesting to me about this is the Constitutional side of this. The Fairness Doctrine had been justified by Red Lion, where the Supreme Court approved it based on there being a limited number of channels of communications available. Of course, this started in the 1920s, when there actually was a shortage. Eighty years later, there of course isn't.
Note that the Administration talks straight at this, pointing out that twenty years ago, the FCC found that the doctrine could no longer be justified on that basis. So what has changed to justify it now? Nothing.
But if Congress were to pass such a bill, and if it were signed (presumably by a later president), or they were able to overcome the president's veto, would it be enforcable? I would suggest not. Normally, the Supreme Court defers to Congress in its finding of facts supporting bills. But in this case, first there was a conflicting finding of fact by an administrative agency. And again, the Court would often ignore this in favor of Congress. But in this case, the standard of review is not the usual Rational Basis, but rather Strict Scrutiny. And because of that, I would suggest that the 1987 FCC findings would be fatal to its Constitutionality.