Must Fairness Be A Doctrine?

THE OPEN MIND
Host: Richard D. Heffner
Guest: John Corry
Title: “Must Fairness be a Doctrine?”
VTR: 1/24/88

I’m Richard Heffner, your host on THE OPEN MIND. You know, I believe very much that when I began this program over three decades ago, its title was much more appropriate than it is now. Not that I’m about to give it up, any more than I’d give up our crazy opening and closing theme music. But then, I think Open Mind much more accurately described the state of mind characteristic of the people who sat around this table. And the reason I’d much more frequently see people pausing, musing, rethinking and even changing their ideas here at this table may be that then the power of this medium wasn’t quite so apparent to us all; then there didn’t seem to be quite so much at stake, quiet so much of a personal imperative to win or lose on the ever larger screen. Maybe there was so much more then by way of individual, personal, inner give and take, of changing and shifting one’s own ideas right here, right on the spot – men and women thinking, open minds changing – because presumably then there wasn’t so much at stake: namely, the hearts and minds of all those viewers. After all, who was watching? And, anyway, so what? What difference did television really make?

Well, now, god help us, this is the medium of choice, and presumably does make a difference in our public conduct, a great difference. Just about everyone comes to the television studio these days quite prepared, pre-packaged, in fact, more with a mindset than with an open mind. Which is why it is so exciting actually to find someone on the air puzzle and ponder, open-mindedly reexamine older views, decide perhaps that newer ones are truer ones, and embrace them…even when your own feeling is that the person was right in the first place, wrong in the second.

All of which is to say that today our open-minded guest “throwback” to better times is John Corry…

Corry: (laughter)

Heffner: …the long-time New York Times reporter, columnist and editor who now as a television critic specializes in the non-fiction world of news, documentaries and public affairs. Now for the sake of full disclosure, let me say that for us the good news is that Mr. Corry has been most generous in print to The Open Mind…while for some the bad news is that though some years back he supported the Federal Communications Commission’s Fairness Doctrine requiring broadcasters (not their print counterparts, just broadcasters) to air contrasting points of view on issues of public importance (in other words, to be fair), now Mr. Corry cheers on the FCC’s abandonment of the Fairness Doctrine and president Reagan’s successful veto of Congressional efforts to reestablish it? And need that expectation, even the requirement, that I be fair really be chilling, too? Must it be chilling to require fairness of broadcasters?

Corry: No, it must not be chilling and perhaps it is even not chilling. On the other hand, what has happened with the Fairness Doctrine is that now congress wants to get in the business of enforcing it. And this, I think is chilling. This is chilling to me. Now, the Fairness Doctrine has existed something like, what, fifty years – as a code of broadcast behavior. It’s been a standard and it’s been loosely enforced and it’s been selectively enforced. Broadcasters have said it’s had a chilling effect. I’m not even entirely sure it did have a chilling effect. But, I become terribly nervous when Congress says, “We will enforce this. We will write this into law.” That, I think, should chill us…chill us all.

Heffner: If the FCC, if a new FCC should decide once again to embrace this concept of a Fairness Doctrine, that a broadcaster should or must address himself to matters of important public policy and in doing so, must be “fair”…

Corry: Yes.

Heffner: …would you embrace that kind of FCC reconstruction of the Fairness Doctrine?

Corry: I would embrace this reluctantly. Now I embraced the old Fairness Doctrine, the old notion of a Fairness Doctrine reluctantly.

Heffner: Why reluctantly?

Corry: Because I’m troubled by…who’s to say who’s fair? Or what’s fair. And who’s to say what is in the public interest. As you know, the fairness doctrine was never written down, it never appeared in one place. It grew out of legislation, it grew out of court decisions, it grew out of FCC practice. And it said two things, it was interpreted as saying that broadcasters must devote a reasonable amount of time to public issues and it must do this fairly. Well, that’s kind of loose. And I think that was just fine as long as it was loose. I think when we try to define this more closely, we’re in trouble. Political fashions change. You may remember, and I’m sure you do that in the 1970s, it was mostly the liberal Democrats who opposed the Fairness Doctrine and it was conservative Republicans who wanted to strengthen the Fairness Doctrine. But times change, fashions change. And now the liberals and conservatives seem to have changed sides. And one gets the feeling, I have the feeling, that it may be a matter of whose ox is being gored at any particular time. And I think that should make us stop and think that what we might think of as being in the public interest in the 1980s may not be…what may not be in the public interest…be thought of as being in the public interest two weeks from now. And when we start to legislate this concept, the idea of fairness, what is it that we’re legislating? What is the public interest?

Heffner: Well, I understand that there were a lot of people who went along with you in sort of having the heebee jeebees at the thought that this should be an act of Congress. It’s an act that the president vetoed. But it became an act of Congress because the Federal Communications Commission, with Reagan appointees, led by the president’s de-regulation notions, decided to pull out…

Corry: Yes.

Heffner: …and to pull the plug from the Fairness Doctrine. So what came first was an end to the administrative, if you will, the agency rule, the FCC rule. Only after that did Congress get into the act.

Corry: Yes.

Heffner: Now, how successful were the broadcasters in this regard? Was this a broadcasters’ movement?

Corry: isn’t that an interesting question. My sense of it is, is that the broadcasters have to be protected against themselves. Now, last year you may…well, the Fairness Doctrine came up a couple of times in the House, in the Senate last year. And the house and the Senate passed it resoundingly. The president vetoed it. And at one point during the hearings, now I wasn’t in Washington, but my sense was that the broadcast industry was trading off on the Fairness Doctrine. It was prepared to accept the Fairness Doctrine if the Senate Commerce Committee said it would make the licensing renewal procedures a little bit easier. And I thought the two things were getting confused. The broadcasters’ right to make a buck and freedom of expression, somehow they had become wrapped up in one. And they’re not, they’re two separate interests. The point, I think about the Fairness Doctrine when we legislate…see, I was…when the FCC was enforcing it, it limped, lurched, it may have been applied unfairly. I suspect that a lot of lawyers in Washington made a good deal of money out of the Fairness Doctrine, defending individual stations against the FCC staff. And it was imperfect, but it was a standard. Then it seems to me that one of the things that’s happened in this decade is that everyone wants to tell us what to do, what do say. And everyone…there’s a certain amount of self-interest in this. Now the instant that Congress becomes involved in this, the instant that congress becomes involved in broadcast news, I think we are all in trouble. We saw that last year when the House Commerce…when a House commerce Subcommittee summoned in the network news chiefs. And Congressman after Congressman asked questions about broadcast news and some of them said they did not like the way broadcasters handled news. Now they would not have done that with a newspaper editor. It’s sort of understood in America that you leave newspapers alone. But we can’t make up our mind about broadcasting. Is it journalism? Or is it entertainment? Is it…does the First Amendment apply to it? Or doesn’t it apply to it? Well, I think the First Amendment does apply to it. I think it’s not always journalism, I think sometimes it’s a positive mess, but you don’t tell them what to say. An elected official does not tell, does not even look or should not even look as if he is going to tell you what to say. That he should not even look as if he is going to tell you, Richard Heffner, what is fair, what is not fair. And where your sense of balance is supposed to be.

Heffner: But you don’t mind, do you…I don’t mind being told that if I’m going to be in this kitchen…

Corry: Yes.

Heffner: …there’s a certain amount of head, which is mixing the metaphors because usually people say that freedom is chilled, free speech is chilled by the Fairness Doctrine. But I know that…or I knew that in broadcasting, one had to assume that fairness, in the long run, fairness had to prevail. Is there anything wrong in my knowing that as a broadcaster, that this was an obligation, and an obligation for very good reasons, because of the power of this medium and because of the fact that it is licensed, as it is.

Corry: The question is, I think, who enforces that? And I think there’s a world of difference between the FCC staff enforcing that and Congress enforcing that.

Heffner: But, again, Congress didn’t get into this act at all, at all until the FCC decided that we must deregulate and the process of deregulating, get rid of the Fairness Doctrine too. And, as you’ve said in print, for so long it just limped along, went along, got along, no one was terribly much bothered by it and Supreme Court of the United States, if I remember correctly, in the Red Lion case, unanimously upheld the constitutionality of the Fairness Doctrine. By the way, it’s so interesting in the print comments and the other comments, including the editorial stance of The New York Times, there’s very seldom a willingness to refer to a unanimous decision of The New York Times to uphold the constitutionality of the Doctrine. But it worked. You’ve said so, before you changed your mind.

Corry: Because I don’t’ think it’s going to work any longer.

Heffner: Why not?

Corry: Consider that only the other day, or very recently, at 2:30 in the morning the full Senate voted on a bill to tell Rupert Murdoch to sell a radio or a television station in New York and Boston. Now consider that that provision, this omnibus budget bill, was slipped in without hearings. Yet the full Senate voted on it, without knowing what they were voting on, and it had been put in there by Ernest Hollings, Chairman of the Commerce Committee at the instigation of Senator Kennedy, because Senator Kennedy was mad at the newspaper in Boston. Now the consequence of this…Senator Kennedy’s anger at the newspaper in Boston, was that I, John Corry, and you will not be allowed to read The New York Post. Because, I assume that the New York Post will go out of business. And one thing that struck me…that I think this legislative act is sad, appalling…I think it should be a Presidential issue and, of course, it won’t be. The number of Congressmen and Senators who didn’t quite cheer the Kennedy/Hollings bill on, but sort of stood around saying, “Well, that’s the way the system is.” I think it was a bill of attainder, it was directed simply at Rupert Murdoch. At the…and for the most part, the people who supported, at least tacitly, this bill were liberals, yet they are in favor of free speech and the First Amendment and all good things. Now at the same time ,the FCC, not very long ago, said it would penalize and it was penalizing radio stations that used sexually explicit language. And this time you had a different set of people who were supporting the FCC, supporting this decision. I found that I’m a great defender of free speech, I’m a great defender of the First Amendment. At the same time, while I was terribly appalled by what was happening to the New York Post, I wasn’t quite as appalled as at the FCC deciding it was going to restrict sexually explicit language. And I think that we…when we look at free speech issues, we look at them out of self-interest, where there is this element here and this bothers me. I see it in myself, I sure see it in Ted Kennedy and I don’t want to hand any kind of power over to a legislative body that, well, thinks the way I do. (laughter)

Heffner: Yes, but you know, the power is going to exist.

Corry: Yes.

Heffner: And the power is either going to be in the hands of those who determine what goes on the air without any guidelines…the guideline of fairness, or it’s going to be exercised by those who have this power, with the suggestion of fairness and, indeed, the possibility that if one is blatantly unfair, one is going to have to pay a price. But again, you have indicated, in the past, that over the years there was a standard to which broadcasters, presumably, repaired because of the statement of the Fairness Doctrine by the FCC and that all went comparatively well.

Corry: Yes.

Heffner: Two stations lost their licenses and they probably lost their licenses for reasons that you and I and probably most of the people watching this program would agree. First Amendment considerations, free speech considerations notwithstanding. So, doesn’t it come back to this question of do you see broadcasting as something different from the printed press? The Red Lion case said, “It is idle to posit an unbridgeable First Amendment right to broadcast that is comparable to the right of every individual to speak, write or publish.” Now I guess it comes down to whether you agree with that. Is this entity something unique, something different or not?

Corry: The answer to you being…

Heffner: Broadcasting.

Corry: Broadcasting.

Heffner: When I’ve read your colleague John O’Connor, I know that he gets hot under the collar about this issue. I was going to play dirty pool and read a quote, without quite saying where it came from, but that is dirty pool. He said, “Many informed people accept that broadcast journalism is merely an extension of print journalism.” This person believes, instead, O’Connor, quote, “That the television mix of broadcast journalism and broadcast entertainment is an entirely new beast, peculiar unto itself. And for that reason, it requires different free speech considerations.”

Corry: You’re about to hoist me on my own petard. Of course it’s different. Television news goes around claiming or saying it’s the same as print journalism. Of course, it is not the same as print journalism. For one thing, print journalism does not exist in the same kind of vacuum that television does. Print journalism needs a reporter, it needs an editor. Television is something entirely different. One can point a camera and send a signal up to a satellite and then relay it through grounds and here in your living room someone appears. It’s…print doesn’t work that way at all. At the same time, it needs the First Amendment rights. It needs full protection. It simply does. And that’s…

Heffner: It’s interesting that you come back, you come back to that that it needs them. After all, the distinction that was made in Red Lion was not so much scarcity, and presumably that same scarcity doesn’t exist today, scarcity of broadcasting entities, but rather licensing. And we do license.

Corry: Even in the Red Lion case, I think there were stories about that ten years afterwards suggesting that perhaps Red Lion, it was during the Kennedy Administration, wasn’t it?

Heffner: Red Lion was…what, forty years…sixty…

Corry: Sixty-two, sixty-one.

Heffner: Was that when it was?

Corry: yes. And I think…

Heffner: I should have my quotes right.

Corry: …suggestions afterwards…

Heffner: Sixty-nine.

Corry: Sixty-nine. Or it was later than that. But I think there were suggestions that perhaps some…Red Lion involved conservative preachers, I believe.

Heffner: Yes.

Corry: And I think that eight or nine years afterwards, Fred Friendly, or someone wrote a story, or did some investigation, or maybe Fred…I don’t’ know, did some investigative reporting and, I believe, decided that…found out that there had been a political emphasis, there had been a political drive in Red Lion, these conservative preachers were a threat. Carl…the Reverend Carl McIntyre was involved in one of those cases, and McIntyre was a right wing preacher. Now I don’t see any particular reason why, in this Administration, someone might decided that the Reverend William Sloane Coffin is a threat. Because William Sloane coffin is on the other side of the fence from what the reverend Carl McIntyre was. And, I don’t want to give any administration the power to decide this. You mentioned scarcity. Well, it seems to me it was only yesterday that I could only get seven channels on my little television set at home. Now I live in Manhattan and I get cable. And now I think I can get forty stations. And I think that about half of America is now hooked up to cable. So the average American viewer can get not the four stations that the family could see twenty years ago, but about twenty.

Heffner: So that presumably if he couldn’t get the journalist Fred Cook replying to the attacks that have been made upon him in one place, he could get them on another.

Corry: Yes.

Heffner: Now either we’re going to say it because of what you‘ve done, no matter you’ve done or because of what you’ve done, we’re not going to renew it.

Corry: That’s correct. And I’m sorry…

Heffner: But that’s what’s got to be.

Corry: And I really am sorry. But I think that the business of business is business. And the business of journalism is journalism. And the two are separate, distinct entities. And I personally care less about the broadcast licenses than I do about the broadcast journalists. I think you do, too.

Heffner: Oh I, I’m not disagreeing with that for a moment. In fact listen, I was thinking when I sat down at this table about the influence, as I notice in the last few weeks I keep pulling my jacket down because I had seen BROADCAST NEWS and I know, I’d learned that this was the trick of the clever broadcaster…he pulls his jacket down behind him and sits on it so he looks better. Sure. I think of it as something different. But I keep being impressed by your colleague, John O’Connor, with whom I don’t agree on many things, or on most things, on what he had to say about this being not the same thing and therefore you can’t just assume that you’re going to extend to broadcasting the same, ahh, rights, immunities, privileges, call them what you will.

Corry: The problem, I think, is that everyone is worried about broadcast news and everyone is worried about television. And the liberals are forever worrying about violence on television. And the conservatives are forever worrying about sex on television. And fashions change in this. And when we start…we get into business of regulating this…

Heffner: But, John, you’ve been worried about unfairness in broadcasts, you’ve been worried about political orientation.

Corry: Yes.

Heffner: Okay? Is there something wrong with the notion that I, as a broadcaster, must repair to the standard of fairness? That’s all.

Corry: There is nothing wrong with the notion that you must adhere to the standard of fairness. But I don’t know who enforces that. I think that people like myself, television critics who work for another journalistic outlet, enforce that standard. I think we should. I think that in your case…or that the viewers enforce the standard. I believe in sort of a marketplace of ideas and I tend to think that good ideas are driven off the air, that bad programs…good programs, bad programs get driven off the air or put on the air.

Heffner: You know you once wrote that the moderator of this program would sooner hide under this black tablecloth than interrupt his guest, but I come back to this notion that maybe my experience is very different. The times when I’ve to myself, “Hey, wait a minute, don’t do this” – and in terms of the Fairness Doctrine…

Corry: Yes.

Heffner: Is when I’ve thought to myself, “It literally isn’t fair to do this, unless you’re going to do that. So don’t do it at all, unless you’re ready to do both things. Present both points of view.” By gosh, I find it terribly hard to understand why I should take exception to your telling me, if you were an FCC Commissioner, the complaint has been registered, that you were unfair here because next time around I’m not going to be chilled, I’m going to think about what’s fair. And fair’s fair.

Corry: I think, Dick, there is a world of difference between an FCC Commissioner, an FCC staff person telling you what’s fair or unfair, as having a member of the House or Senate Commerce Committee telling you what is fair, unfair or what is fair or unfair.

Heffner: Sure. But let’s go back again, until the FCC knocked it out, there was this nice, calm, cool, collected approach by the agency itself, to fairness. You know, it’s such a difficult question, that I have to…I’m getting the signal…we have less than a minute left…I want to ask you what you think the future will bring. Do you think there will be another Fairness Doctrine?

Corry: Yes. And I suspect it may one day be struck down in court. And I think that we’ll have an increasing number of people on both…all sides of the political spectrum, who will tell us what to do and how to think and what we should see and what we should hear…it’s part of the times. And I think we’ll get it from the left and from the right. I don’t think we’ll get very much from the center, and I think it’s something that we have to be terribly concerned about.

Heffner: Well, I won’t make a bet with you. But it would be interesting to see whether in the final analysis, if it gets to the courts, the Fairness Doctrine which had been upheld so vigorously some years back is not upheld now. And that’s the end of our program. John Corry, thank you so much for joining me today on The Open Mind.

Corry: Thank you, Dick.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, and it’s a controversial one, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $3.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; Mr. Lawrence M Wein and the New York Times Company Foundation.