Genachowski is right to oppose the Fairness Doctrine – Part II — VOICES for REASON

Virtually everyone recognizes that it would be an egregious violation of free speech for the government to dictate what the New York Times publishes. How, then, do supporters of the Fairness Doctrine try to reconcile the Doctrine with the First Amendment? Well, they say, unlike newspapers, the airwaves are a finite resource that needs to be rationed out in the “public interest.” Writes one supporter:

The Fairness Doctrine does not (and cannot constitutionally) apply to print media. When it comes to print media, everything is owned in private. . . . However, broadcast, cable and radio are quite different. . . . While the press is available to everyone, there are only so many frequencies upon which to broadcast, only so many ranges in the electromagnetic spectrum upon which to carry messages. Not everyone can broadcast. If they tried, static would be the result. That is why we have licenses. And even more importantly, the airwaves are not privately held by individuals, but are the collective property of we the people.

In other words, since the airwaves are finite, they must be publicly owned, and since they are publicly owned, it would be unfair to only let part of the public be heard, and therefore we need a Fairness Doctrine to make sure everyone gets a say.

But this whole argument rests on a bizarre non sequitur. It does not follow from the fact that the airwaves are finite that they should be publicly owned.

The fact is, every resource is finite, including printing presses. Yet we do not allow the government to control the production of printing presses and distribute them in the “public interest.” Instead, we recognize that a printing press has to be produced–and that those who create (or purchase) this value have a right to it. They have a right to use it and dispose of it as they see fit.

And the same holds true for natural resources like the broadcast spectrum. Just as oil belongs to those who make a life-serving product out of subterranean black glop, so a broadcast frequency rightfully belongs to those who make it valuable. In her article, “The Property Status of the Airwaves,” Ayn Rand outlined how the government could have established private ownership of the airwaves:

As soon as it became apparent that radio broadcasting has opened a new realm of material resources which, in the absence of legal definitions, would become a wilderness of clashing individual claims, the government should have promulgated the equivalent of a Homestead Act of the airways–an act defining private property rights in the new realm, establishing the rule that the user of a radio frequency would own it after he had operated a station for a certain number of years, and allocating all frequencies by the rule of priority, i.e., “first come, first served.”

Anyone who wants to understand the injustice of today’s “public airwaves” regime, and who wants to understand how privately owned airwaves would work, should read that article (available in her book Capitalism: The Unknown Ideal.)

The government should recognize station owners’ right to own the airwaves they make valuable through their technology and broadcast content. Then station owners would be free to decide what content flowed over their airwaves. The government would have no power to force station owners to give “a little” airtime to views they don’t like–any more than it can force homeowners to give their spare bedroom to an unwanted guest.

The fact is, if the FCC licensing system seems to justify government control of broadcast speech, then it’s the licensing system we should question, not the principle of freedom of speech. Instead of bringing back the Fairness Doctrine, our leaders should remember the freedom doctrine this country was founded upon and the right to unrestricted speech it guarantees.