A TV station flooded with protests and threats because it dares to interview a reporter probing the background of a presidential candidate? American colleges, where speech codes, ostensibly designed to protect students from hurtful comments, are used to enforce "correct" political opinions and to ban unpopular ideas? College kids taught that suppression of free speech is perfectly acceptable, as long as it's done to advance "a good cause?"

What happens when these students become the governing generation?

The fact is, free speech is under threat in the United States, not from some great wave of censorship, but from individual actions, attitudes and incidents that have built up over time.

The latest incident occurred just a few days ago. The Federal Communications Commission sent letters to some prominent military analysts saying they may have broken the law when they went on TV to discuss the war on terrorism. The letters were sent at the request of two House Democrats, who claim that the analysts, some of them high-ranking veterans, broke the law by using material they had received at private Pentagon briefings.

"As retired officers, we're private citizens and can say anything we want under the First Amendment," said Maj. Gen. Paul Vallely. The letters will have a chilling effect on military commentators, who share their expertise with millions of Americans. Maj. Gen. Paul Vallely, who appears frequently on television, and who called the letters "an affront to free speech," in a story reported by Rowan Scarborough. There are some, though, who have a very different interpretation of the First Amendment, and would like to silence Gen. Vallely and his colleagues, especially if these officers have views they don't like. Vallely has been positive about the war on terror. For some, that is ruinous.

One of the most disturbing things we're seeing today, and again it involves the Federal Communications Commission (FCC), is an attempt to reinstate the so-called, and badly misnamed "Fairness Doctrine," a hopelessly obsolete concept that was once used to impose standards of behavior on radio and TV stations when there were only two of them? We should point out that both Senator Obama and Senator McCain are on record as opposing the Doctrine, but some in Mr. Obama's party seem determined to bring it back.

The Fairness Doctrine dates to 1949. The FCC then took the position that radio and TV licensees were "public trustees," and had an obligation to present contrasting views on public issues. The Doctrine developed out of concern that the number of frequencies available to broadcasters was limited, and that stations not become advocates for only their own point of view. This, of course, was in an era before cable television, which does not use the public airwaves. (The FCC only deals with "over the air" TV and radio signals.) Through the years the FCC refined the Doctrine, setting out rules for personal attacks and political editorializing.

There would always been a question as to whether the Fairness Doctrine was Constitutional. That question was tested in 1969 before the U.S. Supreme Court in Red Lion Broadcasting Co., Inc. v. FCC. A station in Pennsylvania had aired a program during which Fred J. Cook, an author, was attacked. When Cook asked for time to reply, the station refused. The FCC ruled that the station had not met its legal obligation. The station appealed on Constitutional grounds, but the Supreme Court, in an 8-0 ruling, held that the
Fairness Doctrine was Constitutional. The ruling had a devastating effect on journalists. To avoid legal challenges, many broadcast reporters simply avoided controversial issues. This "chilling effect" was the opposite of what the Fairness Doctrine had intended.

In l987, under the Reagan administration, the FCC abolished the Doctrine, despite Congressional opposition. Conditions had changed. Deregulation was the order of the day. There were large numbers of broadcast stations. Cable had come in. There was no shortage of outlets for a variety of views. Deleting the Doctrine meant stations no longer had to give equal time to competing opinions. The chief beneficiaries turned out to be radio talk-show hosts, who could now editorialize, with no need to invite the opposition.

There of course is the problem and the threat.

Talk radio has blossomed in the 21 years since the FCC abolished the Fairness Doctrine. Most of the success has come on the right, with personalities like Rush Limbaugh and Sean Hannity becoming major political, as well as broadcast figures. It wasn't planned this way. There was no conspiracy, no plot hatched in some radio control room, and liberal hosts have had a number of chances. The liberal Air America network, launched several years ago, had ample financing, but seemed to have little flair for attracting audience. For some reason, the right has simply been more successful at the new medium. There is no one on the left who can equal Limbaugh's audience or impact.

Some Democrats, including Nancy Pelosi, John Kerry and Dick Durbin, believe the dominance of conservatives in talk radio is unfair, and want to reinstate the Fairness Doctrine when the new Congress convenes in January. Their arguments, in the year 2008, seem lame. At a time when there are more outlets for opinion than in any period in history, it is quite a stretch to ask the FCC to re-enter the business of regulating content. But politically the Democrats are on target. Reinstating the Doctrine would essentially destroy conservative talk radio, at least on over-the-air stations. Station owners would be reluctant to feature, say, Rush Limbaugh, if they were then required to balance him with a liberal host who had a third of Limbaugh's talent and brought in a third of Limbaugh's audience. Disk-jockey shows would suddenly look very attractive. While talk-show hosts could probably find alternative outlets in cable or satellite radio, they would be denied the clout of the huge over-the-air drive-time radio stations.

Getting the government back in the business of content, especially when the intent is clearly to destroy the most successful talk-radio shows, is another threat to free speech as we know it. Where would a new Fairness Doctrine begin? Or end? Would there be an attempt to regulate entertainment, to require politically correct values in major shows? Would a generation of young college graduates, influenced by the speech codes of their campuses, try something similar in broadcasting?

The Fairness Doctrine isn't needed. Liberals, like conservatives, should expect to take their chances in the marketplace of ideas. If they fall short, perhaps next time they might consider putting on a better show.

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