Fairness Doctrine Talk, Libel Case Raise Free-speech Worries

Gene Policinski Commentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

We keep finding new ways to argue with ourselves over old ideas about what we can or cannot say to each other — in other words, we’re constantly redefining the boundaries of free speech.

Even as you read this:

  • The “buzz” is buzzing louder about reviving the so-called “Fairness Doctrine,” discarded in 1987 by the Federal Communications Commission as a tool to regulate broadcasters.
  • A federal court in Boston puts an unexpected dent into the long-held legal doctrine that truth is a solid defense in a libel case.

The headline-grabber for this “everything old is new again” free-speech roundup is the possibility that Congress — read the Democratic majority, at least — may try to bring back the “Fairness Doctrine,” or perhaps press the FCC to bring it back to life.

In theory, the Fairness Doctrine was supposed to make certain that at least two sides of any public-policy debate were available on the publicly owned airwaves. By the mid-1980s, the FCC and others found that the policy actually was chilling public debate, not promoting it. To avoid costly legal entanglements, broadcasters were finding it easier just to avoid topics that might provoke controversy — hardly making radio and TV the “marketplace of ideas” so necessary to a vital democracy.

Also found lacking was a basic premise rooted in mid-20th century reality. Widespread cable television use voided the once-held argument that a limited number of available broadcast TV channels required that government needed to step in to ensure fair use of public airwaves.

Opponents of any legislative or administrative revival effort argue that the Internet alone voids both justifications: There are huge audiences for blogs, chat groups and Web sites espousing myriad views available to anyone with access to a personal or publicly provided computer.

Moreover, this current blip of interest carries a heavy tinge of partisanship — an indelible irony for something with “fairness” in its name. Critics of returning to the old policy claim the impetus is more the political and business success of conservative broadcasters as opposed to their liberal counterparts.

Advocates of the doctrine are pressing for at least congressional hearings on the matter — at which presumably all sides will get a chance to speak. Though Congress certainly has its own mind on what to consider — and what to approve — the likelihood of eventually reviving the doctrine was dealt a blow when the White House made clear on Feb. 18 that it opposed reinstatement.

In the second rerun incident, a three-judge panel in the 1st U.S. Circuit Court of Appeals recently upended a long-held rule of law that “truth is an absolute defense” when someone is sued for libel. The opinion has surprised some experts on libel — and, if ultimately upheld, would uproot basic legal tenets of free speech and the law.

The judges reviewed Noonan v. Staples, a case involving an employee of a business-supply firm who sued the company after an executive sent an e-mail to about 1,500 employees detailing why the employee had been fired for what the company said was falsifying expense reports.

The court’s opinion said that even if the factual account sent to other workers were true, and apparently it was, the employee involved might be able to recover damages  if the e-mail was sent maliciously — in this case, to humiliate the former employee. The judges sent the case back to a lower court in Massachusetts for reconsideration.

If the court’s decision ever were to apply widely, the result could be similar to what opponents say will happen after revival of the Fairness Doctrine: A paralysis of public debate in which legal challenges ask courts to examine and determine possible motives of speakers, bloggers, filmmakers, journalists and others, rather than to review the truth of the facts.

These two examples aren’t the only places where we continue to debate and define protected speech. There are current disputes over salacious postings on social networking sites, Internet locations that post product reviews, and online sites that rate business and personal services. The right of public employees to comment on their jobs, and the degree of protection (if any) for whistleblowers on waste, fraud or corruption in government and in private business are also being contested.

It’s a compliment of sorts to the vitality of free speech that we keep talking about issues like the Fairness Doctrine and libel law. We need to keep at least one essential idea foremost in all those conversations: More speech is always better than less.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].