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The Positive- and Negative-Right Conceptions of Freedom of Speech and the Specter Of University of South Florida Scholar Commons Graduate Theses and Dissertations Graduate School 7-9-2010 The oP sitive- and Negative-Right Conceptions of Freedom of Speech and the Specter of Reimposing the Broadcast Fairness Doctrine ... or Something Like It Adam Fowler University of South Florida Follow this and additional works at: http://scholarcommons.usf.edu/etd Part of the American Studies Commons, and the International Relations Commons Scholar Commons Citation Fowler, Adam, "The ositP ive- and Negative-Right Conceptions of Freedom of Speech and the Specter of Reimposing the Broadcast Fairness Doctrine ... or Something Like It" (2010). Graduate Theses and Dissertations. http://scholarcommons.usf.edu/etd/3497 This Thesis is brought to you for free and open access by the Graduate School at Scholar Commons. It has been accepted for inclusion in Graduate Theses and Dissertations by an authorized administrator of Scholar Commons. For more information, please contact [email protected]. The Positive- and Negative-Right Conceptions of Freedom of Speech and the Specter of Reimposing the Broadcast Fairness Doctrine ... or Something Like It. by Adam Fowler A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts Department of Government and International Affairs College of Arts and Sciences University of South Florida Major Professor: Steven Tauber, Ph.D. Michael Gibbons, Ph.D. Joan Pynes, Ph.D. Date of Approval: July 9, 2010 Keywords: FCC, Isaiah Berlin, liberty, localism, diversity, ownership regulations 8 Copyright 2010, Adam Fowler DEDICATION I would like to dedicate this thesis to my parents, Gary and Judy Fowler. Their love, patience and support over the years, especially during my many years in undergraduate and graduate school, has been greatly appreciated and cherished. Without them, none of this would have been possible. Thank you. ACKNOWLEDGMENTS I would like to acknowledge the invaluable contributions of the members of my thesis committee. First, the guidance and input of Dr. Steven Tauber, my committee chair and graduate advisor throughout much of my time in the graduate program, is greatly appreciated. His advice and direction during the thesis process, including his often detailed review of my chapters and his suggestion that my initial idea to write on the positive/negative liberty dichotomy could be focused specifically on the Fairness Doctrine, were invaluable. Also valuable was the input of Dr. Michael Gibbons, particularly in the second chapter, which was adapted from a paper I wrote in his Foundations class. The contribution of Dr. Joan Pynes in reviewing the chapters of the thesis was also a great help, particularly her attention to style details and her quick reply time to my drafts. To all three of you, thank you for your guidance, cooperation and patience. i TABLE OF CONTENTS ABSTRACT ..................................................................................................................... iii CHAPTER I: INTRODUCTION .......................................................................................1 Introduction/Background .......................................................................................1 Overview ................................................................................................................4 CHAPTER II: CONCEPTUALIZING FREEDOM .........................................................6 The Conceptual Debate ..........................................................................................6 Essentially Contested Concepts .............................................................................7 The Essential Contestability of Freedom ...............................................................9 Positive and Negative Liberty: An Example of Freedom‟s Essential Contestability .................................................................................................12 Positive and Negative Conceptions of Free Speech in the Fairness Doctrine Debate ..............................................................................................21 CHAPTER III: THE HISTORY OF THE FAIRNESS DOCTRINE ..............................25 Introduction ..........................................................................................................25 Early Years of Radio Regulation .........................................................................25 Early Years of the FCC ........................................................................................28 Fairness Doctrine Spelled Out ..............................................................................30 Doctrine Codified? ...............................................................................................32 Kennedy and Johnson Use Fairness and Cullman Doctrines.................................33 The Red Lion Case ...............................................................................................36 Post-Red Lion Developments ...............................................................................40 Miami Herald v. Tornillo Contradicts Fairness Doctrine Rationale ....................47 The Questioning of the Justifications for the Fairness Doctrine ..........................50 The Death of the Doctrine ....................................................................................57 CHAPTER IV: POST-DOCTRINE .................................................................................59 The Specter of Reimposition? ..............................................................................59 The Immediate Reaction to the Repeal ................................................................60 The Clinton Years ................................................................................................63 Ownership, Diversity, Localism and Other Issues in the Bush Years .................68 Fairness, Localism and Diversity in the Age of Obama ......................................82 Continuing Debate ................................................................................................90 CHAPTER V: PROBLEMS WITH THE POSITIVE CONCEPTION ...........................91 A Positive or Negative Conception? ....................................................................91 ii Positive-Right Paternalism ...................................................................................92 The Development of a More Negative Right to Free Speech ............................103 Practical Problems with the Positive Conception ..............................................120 Negative Consequences for Negative-Right Speech? ........................................129 CHAPTER VI: CONCLUSION .....................................................................................131 Review ................................................................................................................131 Other Areas of Study ..........................................................................................132 Concluding Remarks ..........................................................................................135 REFERENCES FROM THE TEXT AND FOOTNOTES ............................................137 ABOUT THE AUTHOR .................................................................................. END PAGE iii The Positive- and Negative-Right Conceptions of Freedom of Speech and the Specter of Reimposing the Broadcast Fairness Doctrine ... or Something Like It Adam Fowler ABSTRACT A key theoretical debate underlying the now defunct Federal Communications Commission (FCC) regulation known as the Fairness Doctrine is conflict over what constitutes the right to freedom of speech: a positive or negative conception. Similarly, since repeal of the Doctrine, other FCC measures to uphold the “public-interest” standard in broadcasting have relied on a positive conception of speech. This thesis demonstrates the history of this debate through court cases, news reports, scholarly articles and historical documents. It then is argued that the positive-right nature of these regulations is problematic philosophically, constitutionally and practically. The positive-right conception lends itself to an uncomfortable level of paternalism on the part of government regulators, a constitutional abridgement of negative-right speech and a tedious involvement of government in regulation that can lead to a chilling effect on speech. The conclusion then suggests further areas of research related to the topics covered in the thesis. 1 CHAPTER I INTRODUCTION Introduction/Background One of the most notable and highly debated regulations of broadcast radio and television in the United States was a policy adopted in 1949 by the Federal Communications Commission (FCC) known as “The Fairness Doctrine.” The Doctrine held licensees to a “public-interest” standard which called for them to present reasonable opportunity for the airing of contesting points of view when covering issues of public importance to their community (FCC, 1949). Proponents, in light of the scarcity of broadcast outlets (frequencies and channels), viewed it as serving the public-interest necessity to foster a robust public dialogue that represented all voices from the public and not skewed to the side of the station owners‟ opinions; whereas opponents viewed it as a restriction on free speech, creating a “chilling effect” which led stations to stray away from covering any controversial public issues due to the requirement to present differing
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