The First Amendment won big at the end of February. Due to an avalanche of public opposition, the Federal Communications Commission (FCC) cancelled the so-called Critical Information Needs study. Americans across the political spectrum joined ranks to make two things clear. First, the government has no place in the newsroom. And second, the American people—not the FCC—should decide what information is important.
Fortunately, the good news for free speech on our nation’s airwaves did not stop there. In another defining moment for the First Amendment, the FCC stood firm earlier this month and rejected a demand to shut down two Wisconsin radio stations. The stations’ alleged crimes? Their hosts and guests made too many favorable comments about Wisconsin Governor Scott Walker during his 2012 recall campaign and didn’t say enough nice things about his Democratic opponent. That’s right; for this reason and this reason alone, petitioners urged the FCC to banish these stations from the airwaves.
In making this request, the stations’ opponents invoked an obscure FCC policy called the Zapple Doctrine. My initial reaction was probably similar to yours: “What the heck is the Zapple Doctrine?” Perhaps one reason was that the FCC last endorsed this doctrine back in the 1980s, when I was in middle school.
The Zapple Doctrine is named after Nicholas Zapple, one-time counsel to the U.S. Senate Commerce Committee. It’s an outgrowth of the now-infamous “Fairness Doctrine,” which was an antiquated set of rules that required broadcast stations expressing views favoring one side of a controversial issue to give equal time to the other side’s views. In 1970, Mr. Zapple asked the FCC whether the Fairness Doctrine extended to spokesmen for or supporters of political candidates who voiced their opinions on air (as opposed to the candidates themselves). A few weeks later, the FCC said it did.
The Commission used the following theory to justify the government’s policing of broadcasters’ editorial decisions under the Fairness Doctrine. Because the medium used by broadcasters to reach the public—known as spectrum—was scarce, the FCC claimed it had the power to regulate the viewpoints expressed over this scarce resource in the “public interest.” The U.S. Supreme Court bought this argument and upheld the Fairness Doctrine in 1969.
Almost twenty years later, however, the FCC unanimously—and rightly—repudiated the Fairness Doctrine. It recognized that this intrusive regulation unnecessarily chilled free speech. Moreover, treating broadcasters differently from other types of media didn’t make sense given the evolution …read more