doctrine

WASHINGTON — It was the decision that launched a thousand lips.

In 1987, the Federal Communications Commission stopped requiring broadcasters to air contrasting views on controversial issues, a policy known as the Fairness Doctrine. The move is widely credited with triggering the explosive growth of political talk radio.

Now, after conservative talk show hosts such as Rush Limbaugh, Sean Hannity and Michael Savage helped torpedo a major immigration bill, some in Congress have suggested reinstating the Fairness Doctrine to balance out those powerful syndicated voices.

That has unleashed an armada of opposition on the airwaves, Internet blogs and in Washington, where broadcasters have joined with Republicans to fight what they call an attempt to zip their lips.

Opponents of the Fairness Doctrine said it would make station owners so fearful of balancing viewpoints that they’d simply avoid airing controversial topics — the “chilling effect” on debate that the FCC cited in repealing the rule two decades ago.

“Free speech must be just that — free from government influence, interference and censorship,” David K. Rehr, president of the National Assn. of Broadcasters, wrote to lawmakers.

There’s little chance the fairness doctrine will return in the near future, as FCC Chairman Kevin J. Martin publicly opposes it and the White House wrote to broadcasters last week assuring them that Bush would veto any legislation reinstating it. But the issue has renewed debate about how far the government should go in regulating the public airwaves.

Some Democrats say conservative-dominated talk radio enables Republicans to mislead the public on important issues such as the Senate immigration reform bill.

“These are public airwaves and the public should be entitled to a fair presentation,” said Sen. Dianne Feinstein (D-Calif.), who is considering whether the Fairness Doctrine should be restored.

Republicans say that the policy would result in censorship and warn that it could return if Democrats win the White House in 2008.

“This is a bad idea from a bygone era,” Sen. Norm Coleman (R-Minn.) said at a news conference last week with five other Republicans announcing legislation to block reenactment of the policy.

The FCC enacted the Fairness Doctrine in 1949 to ensure the “right of the public to be informed” by presenting “for acceptance or rejection the different attitudes and viewpoints” on controversial issues. The policy was upheld in 1969 by the Supreme Court because the public airwaves were a “scarce resource” that needed to be open to opposing views.

Broadcasters disliked the rule, which put their federal station license at risk if they didn’t air all sides of an issue. Michael Harrison, who hosted a weekend talk show on the former KMET-FM in Los Angeles from 1975 to 1985, said the policy kept him from giving his opinions on controversial topics.

“I would never say that liberals were good and conservatives were bad, or vice versa. We would talk about, “Hey, all politicians are bad,” or “It’s a shame that more people don’t vote,” said Harrison, who publishes Talkers magazine, which covers the talk radio industry. “It was more of a superficial approach to politics.”

The Fairness Doctrine ended during the Reagan administration. In a 1985 report, the FCC concluded the policy inhibited broadcasters from dealing with controversial issues and was no longer needed because of the growth of cable television.

“Many, many broadcasters testified they avoided issues they thought would involve them in complaints,” recalled Dennis Patrick, who was chairman of the FCC in 1987 when it repealed the policy. “The commission concluded that the doctrine was having a chilling effect.”

The decision was controversial. Congress passed a law in 1987 reinstating the Fairness Doctrine, but Reagan vetoed it.

Shortly afterward, Limbaugh, then a little-known Sacramento disc jockey, emerged as a conservative voice on radio stations nationwide. Another failed congressional attempt to reinstate the Fairness Doctrine in 1993 was dubbed the “Hush Rush” bill.

A 1997 study in the Journal of Legal Studies found that the percentage of AM radio stations with a news, talk or public affairs format jumped to 28% in 1995 from 7% in 1987. Liberal talk radio efforts, such as Air America, have struggled to get ratings.

The Fairness Doctrine seemed dead and buried. Then in January, Rep. Dennis J. Kucinich (D-Ohio), who is running for president, announced that with Democrats back in the House majority, he planned to hold hearings on reviving the policy because media consolidation has made it harder for some voices to be heard.

And this spring, conservative talk show hosts unleashed a campaign against the Senate immigration bill, which would have given the nation’s 12 million illegal immigrants a path to citizenship. Their listeners flooded the Capitol with complaints, and the bill failed last month on a procedural vote.

Bill supporters immediately lashed out at talk radio.

“Talk radio is running America. We have to deal with the problem,” said Sen. Trent Lott (R-Miss.). And Sens. Richard J. Durbin (D-Ill.) and John F. Kerry (D-Mass.) said they favored restoring the Fairness Doctrine.

“We have more power than the U.S. Senate and they know it and they’re fuming,” conservative talk show host Savage said in an interview. The liberal bent of the mainstream media more than compensates for conservative dominance of AM talk radio, he said.

“We’re going to have government snitches listening to shows,” he said. “And what are they going to do, push a button and then wheel someone into the studio and give their viewpoint?”

But Rep. Maurice D. Hinchey (D-N.Y.) said the rest of the media presented a balanced view of controversial issues, and the Fairness Doctrine would simply reimpose that requirement on talk radio.

Hinchey is readying legislation to reinstitute the doctrine as part of a broad package of media ownership reforms.

“It’s important that the American people make decisions for themselves based upon the ability to garner all the information, not just on what somebody wants to give them,” he said.

Republicans have seized on comments like that.

Rep. Mike Pence (R-Ind.), a former radio talk show host, proposed an amendment last month prohibiting the FCC from spending money to reimpose the Fairness Doctrine. It passed 309 to 115 after a parade of Republicans took to the House floor to blast calls to restore the policy. Democrats branded the vote a political stunt. Republicans tried to propose a similar amendment in the Senate last week, but Democrats blocked it .

Republicans vow to continue pressing the issue.

“The American people love a fair fight, and so do I,” Pence said. “But there’s nothing fair about the Fairness Doctrine.”

[email protected]

WASHINGTON  — The Supreme Court’s conservatives face a test of their own making this week as they decide whether President Trump had the legal authority to impose tariffs on imports from nations across the globe.

At issue are import taxes that are paid by American businesses and consumers.

Small-business owners had sued, including a maker of “learning toys” in Illinois and a New York importer of wines and spirits. They said Trump’s ever-changing tariffs had severely disrupted their businesses, and they won rulings declaring the president had exceeded his authority.

On Wednesday, the justices will hear their first major challenge to Trump’s claims of unilateral executive power. And the outcome is likely to turn on three doctrines that have been championed by the court’s conservatives.

First, they say the Constitution should be interpreted based on its original meaning. Its opening words say: “All legislative powers … shall be vested” in Congress, and the elected representatives “shall have the power to lay and collect taxes, duties, imposes and excises.”

Second, they believe the laws passed by Congress should be interpreted based on their words. They call this “textualism,” which rejects a more liberal and open-ended approach that included the general purpose of the law.

Trump and his lawyers say his sweeping “Liberation Day” tariffs were authorized by the International Economic Emergency Powers Act, or IEEPA.

That 1977 law says the president may declare a national emergency to “deal with any unusual and extraordinary threat” involving national security, foreign policy or the economy of the United States. Faced with such an emergency, he may “investigate, block … or regulate” the “importation or exportation” of any property.

Trump said the nation’s “persistent” balance of payments deficit over five decades was such an “unusual and extraordinary threat.”

In the past, the law has been used to impose sanctions or freeze the assets of Iran, Syria and North Korea or groups of terrorists. It does not use the words “tariffs” or “duties,” and it had not been used for tariffs prior to this year.

The third doctrine arose with Chief Justice John G. Roberts Jr. and is called the “major questions” doctrine.

He and the five other conservatives said they were skeptical of far-reaching and costly regulations issued by the Obama and Biden administrations involving matters such as climate change, student loan forgiveness or mandatory COVID-19 vaccinations for 84 million Americans.

Congress makes the laws, not federal regulators, they said in West Virginia vs. Environmental Protection Agency in 2022.

And unless there is a “clear congressional authorization,” Roberts said the court will not uphold assertions of “extravagant statutory power over the national economy.”

Now all three doctrines are before the justices, since the lower courts relied on them in ruling against Trump.

No one disputes that the president could impose sweeping worldwide tariffs if he had sought and won approval from the Republican-controlled Congress. However, he insisted the power was his alone.

In a social media post, Trump called the case on tariffs “one of the most important in the History of the Country. If a President is not allowed to use Tariffs, we will be at a major disadvantage against all other Countries throughout the World, especially the ‘Majors.’ In a true sense, we would be defenseless! Tariffs have brought us Great Wealth and National Security in the nine months that I have had the Honor to serve as President.”

Solicitor Gen. D. John Sauer, his top courtroom attorney, argues that tariffs involve foreign affairs and national security. And if so, the court should defer to the president.

“IEEPA authorizes the imposition of regulatory tariffs on foreign imports to deal with foreign threats — which crucially differ from domestic taxation,” he wrote last month.

For the same reason, “the major questions doctrine … does not apply here,” he said. It is limited to domestic matters, not foreign affairs, he argued.

Justice Brett M. Kavanaugh has sounded the same note in the past.

Sauer will also seek to persuade the court that the word “regulate” imports includes imposing tariffs.

The challengers are supported by prominent conservatives, including Stanford law professor Michael McConnell.

In 2001, he and John Roberts were nominated for a federal appeals court at the same time by President George W. Bush, and he later served with now-Justice Neil M. Gorsuch on the U.S. 10th Circuit Court of Appeals in Denver.

He is the lead counsel for one group of small-business owners.

“This case is what the American Revolution was all about. A tax wasn’t legitimate unless it was imposed by the people’s representatives,” McConnell said. “The president has no power to impose taxes on American citizens without Congress.”

His brief argues that Trump is claiming a power unlike any in American history.

“Until the 1900s, Congress exercised its tariff power directly, and every delegation since has been explicit and strictly limited,” he wrote in Trump vs. V.O.S. Selections. “Here, the government contends that the President may impose tariffs on the American people whenever he wants, at any rate he wants, for any countries and products he wants, for as long as he wants — simply by declaring longstanding U.S. trade deficits a national ‘emergency’ and an ‘unusual and extraordinary threat,’ declarations the government tells us are unreviewable. The president can even change his mind tomorrow and back again the day after that.”

He said the “major questions” doctrine fully applies here.

Two years ago, he noted the court called Biden’s proposed student loan forgiveness “staggering by any measure” because it could cost more than $430 billion. By comparison, he said, the Tax Foundation estimated that Trump’s tariffs will impose $1.7 trillion in new taxes on Americans by 2035.

The case figures to be a major test of whether the Roberts court will put any legal limits on Trump’s powers as president.

But the outcome will not be the final word on tariffs. Administration officials have said that if they lose, they will seek to impose them under other federal laws that involve national security.

Still pending before the court is an emergency appeal testing the president’s power to send National Guard troops to American cities over the objection of the governor and local officials.

Last week, the court asked for further briefs on the Militia Act of 1908, which says the president may call up the National Guard if he cannot “with the regular forces … execute the laws of the United States.”

The government had assumed the regular forces were the police and federal agents, but a law professor said the regular forces in the original law referred to the military.

The justices asked for a clarification from both sides by Nov. 17.