When Sen. Dick Durbin, Democrat of Illinois, talks about fairness, it's a good idea to count the silverware.

"It's time to reinstitute the Fairness Doctrine," says the assistant majority leader. "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."

Sounds attractive, we admit. What could be more American than fairness? Americans like to hear both sides of every story, and before making any decision, they like to hear the two fellows on either side of the fence make their pitch. What could be fairer than that? And now that the Democrats are back in charge of Congress, maybe the government ought to pass a bill making fairness the law of the land. Call it the Fairness Doctrine!

Well, to be fair, it's a little more complicated than that; and with respect to Dick Durbin, there's another side to his story.

To begin with, for five decades, there was a Fairness Doctrine--a Federal Communications Commission regulation, not an act of Congress. But in due course it came to be regarded as a relic of its time (1934) and, more important, an impediment to broadcasting as a public service. The Fairness Doctrine was repealed during the Reagan administration (1987); the courts have since upheld the repeal. And therein lies a tale.

When the FCC was established early in the New Deal, there was concern that the size limitations of the broadcasting band, and public ownership of the airwaves, would discourage discussion of public issues on the radio. So the FCC instituted the Fairness Doctrine, requiring stations to air both sides in debates; in 1949, the commission expanded the Doctrine, mandating stations to provide a specified amount of public-issue discussion in order to retain their license.

As often happens, this particular initiative had exactly the opposite effect from what the FCC intended. Over the years station owners grew so wary of attracting the scrutiny of federal regulators that they largely banned discussion of political issues on the air, and mandatory public service programming was deliberately anodyne.

All that changed once the FCC dropped the Fairness Doctrine in 1987. A half-century of pent-up free speech was suddenly liberated, and talk radio came into its own. Rush Limbaugh became a household name, paving the way for other entrepreneurs of the air, and radio went from being almost devoid of substantive content to a new, and unpredictable, factor in American politics.

By just about any measure, the Fairness Doctrine was an unfair impediment to free speech, and a public disservice in an open democracy. But it was something else as well: It was a federal regulation that had kept Rush Limbaugh--and Laura Ingraham and William Bennett and Sean Hannity and others--off the air. That is why Democrats have been seeking (in Dick Durbin's word) to "reinstitute" the Fairness Doctrine: It would require any station that carries Limbaugh to offer equal time to his critics.

Never mind the wisdom of the marketplace, or freedom of choice for radio listeners: Revival of the Fairness Doctrine is not intended to facilitate "both sides of the story" but to shut down conservative talk radio. Why? Because efforts to invent a successful left-wing Limbaugh have consistently failed, and what Jim Hightower, Mario Cuomo, and Al Franken's Air America cannot manage on the air might be accomplished by congressional action. This has been a forlorn cause of the left since the Fairness Doctrine was repealed 20 years ago; but now that Democrats control Congress, new life has been breathed into the effort. A Democratic president could appoint enough compliant commissioners to the FCC to accomplish the mission. Or Congress could act.

The threat is not idle. Left-wing activists are not especially enamored of free speech--especially when the open marketplace of ideas puts them at a political disadvantage. That is why the "netroots" are so agitated on this issue. And because Democrats, especially congressional Democrats, are in thrall to extremist elements within their party, senior members of Congress have been quick to embrace what amounts to official suppression of speech. Sen. John Kerry has endorsed the Fairness Doctrine, as has Sen. Dianne Feinstein, who welcomes a federal mandate "to present the other side" since (as she bluntly puts it) "unfortunately, talk radio is overwhelmingly one-way."

The problem, of course, is that the failure of liberal talk radio to compete successfully with conservative talk radio is an issue for liberals to ponder and solve. It is not a question to be settled by enactment of an ill-advised law, or revival of an arbitrary regulation, designed to suppress the First Amendment rights of political opponents.

--Philip Terzian, for the Editors

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