Guest post: Rush Limbaugh and the Fairness Doctrine

[The recent unpleasantness with Canada's most litigious punk rocker has left the controversial and hilarious Skippy Stalin temporarily without a blog home, so I've invited him to contribute some guest posts. - DP]

Rush Limbaugh is known for nothing so much as his rather flexible views of the Constitution. Once upon a time, Limbaugh was what is considered a "strict construction list," meaning that if a given right isn't explicitly enumerated in the Bill of Rights, it doesn't exist. This was the argument Rush and ilk endlessly offer against abortion rights.

Then Rush had a minor misunderstanding with the Florida state's attorney's office about his prodigious appetite for prescription painkillers. No sooner was his physician's office raided by the fuzz than Mr. Limbaugh discovered the right to privacy. Or his lawyer, Roy Black discovered it for him. Amazing how that happens, ain't it?

Well now Limbaugh has discovered a new and exciting interpretation of the First Amendment. All it took was the raise of the Fairness Doctrine, zombie-like, from the grave.

Rush wrote an unintentionally hilarious op-ed for the The Wall Street Journal last week laying out his thought process.

Remember how Limbaugh and others like him wanted the federal government to amputate Janet Jackson's right breast about five years ago? How about when they wanted to forcibly deport Bono for using the f-word during the Golden Globes? Well, things have changed and the FCC regulatory power might not be as benevolent as once thought.

I have a straightforward question, which I hope you will answer in a straightforward way: Is it your intention to censor talk radio through a variety of contrivances, such as "local content," "diversity of ownership," and "public interest" rules -- all of which are designed to appeal to populist sentiments but, as you know, are the death knell of talk radio and the AM band?

Actually, regulation is very different from censorship, as conservatives never failed to remind us during l'affaire Jackson. Furthermore, without "populist sentiments," Mr. Limbaugh would be pumping gas somewhere.

Then we get to Rush's constitutional analysis, which is nothing short of priceless.

As a former president of the Harvard Law Review and a professor at the University of Chicago Law School, you are more familiar than most with the purpose of the Bill of Rights: to protect the citizen from the possible excesses of the federal government. The First Amendment says, in part, that "Congress shall make no law abridging the freedom of speech, or of the press." The government is explicitly prohibited from playing a role in refereeing among those who speak or seek to speak. We are, after all, dealing with political speech -- which, as the Framers understood, cannot be left to the government to police.

Being the total social misfit that I am, I consider myself something of a constitutional scholar. As a conservative, I believe that "original intent" is an important consideration, although not paramount. If you read the First Amendment, you'll notice that the phrase "political speech" isn't used. The idea that political speech deserves greater protection is a canard that created by politicians. Funny how that works, no?

Also, there's no constitutionally protected right to have your own syndicated afternoon radio show. I checked. Limbaugh's free speech rights would be utterly unaffected by the Fairness Doctrine. He could use his $400 million salary to start a newspaper, or he could broadcast online. Using his own resources, he could say whatever he wants.

But he doesn't want to use his own resources. His gig involves the public airwaves. Airwaves, I would remind you, that he's all for regulating when something that he doesn't like is broadcast over them.

For the record, I don't support the Fairness Doctrine for the simple reason that it's silly. If liberals were so defenseless, I hardly imagine that they'd be in a position to implement it in the first place. Furthermore, the marketplace has spoken, and it prefers its stupidity unbalanced by boring liberals, be they failed sportscasters or anonymous California lesbians. But the doctrine is decidedly constitutional. I know that because it survived all the way to 1987 without serious challenge.

Besides, the Obama administration isn't going to re-impose it in any event. The don't need a battle that ugly for something that brings so few tangible benefits. But to listen to Limbaugh, you'd think that the President was about to name Amy Goodman to the FCC.

And that's ultimately why you shouldn't listen to Limbaugh.

Skippy S.

Posted by damian at February 23, 2009 12:01 PM