Should Oprah Winfrey Invite Sarah Palin on Her Show? Long After the Fairness Doctrine's Demise, An Informal Sense of Media Fairness Remains, But What Should Fairness Look Like?

By JULIE HILDEN


Wednesday, Sept. 17, 2008

At first glance, Sarah Palin's story seems perfect for Oprah Winfrey: It features a plucky heroine, a troubled pregnancy, issues of work/life balance, and a special-needs child who has been welcomed into a large, loving family. But it's not a story that Oprah wants to tell right now - because Palin happens to be the Republican vice-presidential nominee, and because Oprah's choice for President is the Democratic candidate, Barack Obama, whom she publicly and passionately supports.

Accordingly, Oprah has said she will have Palin on her show only "after the campaign is over." Although Obama has not appeared on Oprah's show during the campaign either, he did appear twice prior to the time he announced he would run. In addition, Oprah has not publicly explored the possibility of having all four candidates on - in twos, or in turn.

Oprah's decision has caused heated debate - and sparked a boycott by the Florida Federation of Republican women. In this column, I'll look at that decision in the context of how issues of fairness and balance have evolved after the fall of the fairness doctrine and the rise of the Internet.

The Fairness Doctrine, Its First Amendment Problems and Its Demise

A little over twenty years ago, the Federal Communications Commission (FCC) finally abolished its "fairness doctrine." The doctrine had two components: It required broadcasters to devote time to "controversial issues of public importance" and it required them to do so in what the FCC deemed to be a fair and balanced way.

The doctrine was predicated on the then-sharply-limited number of broadcast channels, and on the idea that operating such a channel transformed a private company into a kind of public trust. Based on this rationale, the Supreme Court, in Red Lion Broadcasting v. Federal Communications Commission, upheld the fairness doctrine, even though, in many ways, the doctrine turned First Amendment principles upside down.

Specifically, the doctrine forced companies to broadcast speech, and forced individual broadcasters to host speech with which they might vehemently disagree. It also allowed the government to control the content of the messages private entities conveyed, and to penalize them if those messages did not comport with the government's standards.

In a newspaper setting, this would have been shocking and plainly unconstitutional- akin to the government's setting aside editorial space to be used, and then penalizing the paper if the content that appeared in that space did not pass muster. Thus, it wasn't just that the fairness doctrine carved out a First Amendment exception; the fairness doctrine actually turned the First Amendment on its head. That's why modern calls for the revival of the doctrine should be seen as what they are: an attack on the First Amendment, seeking to coerce independent speakers into becoming temporary mouthpieces.

Slanted Reportage: A Problem the Government Shouldn't Address, and that Private Companies and Individuals Can Address, But Largely Don't

Only one thing can be said in the fairness doctrine's defense: It recognized a genuine problem - slanted reportage - that would persist as the years went on, despite the proliferation of new and different avenues of speech and expression. But its solution violated basic precepts of our constitutional system.

Of course, no constitutional issues arise if private individuals, outside the government, want to do their part to ensure fairness and balance. But it seems that precious few of us have this desire - meaning that to the extent that Oprah simply isn't interested in giving Palin the same kind of podium she gave Obama, she is legion.

Our disinterest in fairness seems to be largely a matter of allegiance and branding: We root for a team, and not the mere idea of the Super Bowl; a candidate, and not the idea of an election. There is an ObamaGirl and a McCainGirl, but no ElectionGirl. Those who are trying to get out the youth vote are inevitably trying to increase votes for Democrats. And when it comes to conveying, in a nutshell, a website's message, "liberal" and "conservative" are single words that - like "Apple" and "Microsoft" -- speak volumes. Market forces, rather than any sense of fairness, seem to be the most powerful element determining the climate of political debate. Even the Florida boycott is attempting to limit Oprah's market by diminishing her viewers.

Another wrinkle here, too, is that the kind of fairness the "fairness doctrine" sought to ensure was, in large part, fairness in debate: Often, the doctrine was used to provide a person who had been attacked with a right of reply. But debate is now much more diffuse: Candidates speak through surrogates; PACs speak in ways geared to further their favored candidates' fortunes; and anyone can put a video on YouTube that argues for either side. A reply to any point is not so much presented, as disseminated through email in-boxes and advocacy sites as well as the websites of traditional media.

Even the presidential debates are not expected to actually be debates, but rather are occasions for canned speeches, zingers, and potential gaffes. If we really wanted to see debates, then we would have the candidates appear in a series of debates, with each focusing on a series of topics from which they could not depart - such as healthcare, education, the economy, the war in Iraq, and counterterrorism.

Complicating the mix, too, is our celebrity culture, where mere connection with a celebrity often confers fame - causing young women, for example, to compete for a faux-friendship with Paris Hilton on a reality show. Oprah's power consists largely in choosing and anointing - she is a kingmaker and queenmaker. Yet she may fear that while this is a power she possesses, it is not one she completely controls. Some have responded to Oprah's choice simply by saying "Her show, her rules." But ironically, she may balk at a Palin appearance precisely because she cannot change those rules: The show raises up, it doesn't take down. With Oprah unwilling to attack Palin, Palin might get that "BFF" glow no matter what Oprah might intend. Thus, for Oprah, having Palin on may feel less like simple fairness, and more like a compelled endorsement - something even the fairness doctrine didn't force anyone to make.

Whether or not we judge Oprah's response to this complex situation, it's certainly worth judging the entire media climate harshly when it comes to fairness issues. True, there are well-intentioned sites that do seek fairness and accuracy, but they cannot compete with the far more famous, more effective, and frankly, much more interesting partisan sites. Too often, "balanced" translates to boredom - just as compliance with the fairness doctrine, in its day, typically had an obligatory feel.

People will visit sites - and listen to broadcasts -- out of excitement and allegiance, not duty; where are the sites that can get us excited about finding truth amid partisanship and hearing unheard political voices? "The Daily Show" and "The Colbert Report" do this better than anyone else, but they still do it with a sideways slant - making points through humor, and therefore making them reactively. We've forgotten the excitement of actual debate and the clash of conflict, but the Internet, with all its creativity, should be able to innovate ways to bring it back.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.



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