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Whitewashing Diversity: The Conservative Attack on the ''Stealth Fairness Doctrine''

Allison Perlman Television New Media 2012 13: 353 originally published online 24 October 2011 DOI: 10.1177/1527476411423676 The online version of this article can be found at: http://tvn.sagepub.com/content/13/4/353

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423676PerlmanTelevision & New Media

TVN13410.1177/1527476411

Whitewashing Diversity: The Conservative Attack on the Stealth Fairness Doctrine

Allison Perlman1

Television & New Media 13(4) 353373 The Author(s) 2012 Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/1527476411423676 http://tvnm.sagepub.com

Abstract This article examines the relationship between conservative discourse, racial politics, and broadcasting policy in the United States. It explores how conservative media personalities, pundits, and activists in 2009 claimed that efforts to increase broadcast diversity were, in actuality, attempts by liberals to reinstate the Fairness Doctrinea policy that had required broadcasters to air both sides of controversial issuesthrough the backdoor. Reframing media diversity policies as masquerades to silence conservative voices, conservatives both denied the existence of barriers to participation for people of color and extended a narrative of conservative victimization. In contextualizing and analyzing the crusade against the stealth Fairness Doctrine, this article demonstrates how media policy discourse has operated as a site where conservative claims of injury occlude the continued existence of structural barriers to people of color and deny the importance of racial difference in the United States. Keywords broadcasting, race, media policy, conservatives, public interest

In the months leading up to and following the 2008 presidential election in the United States, conservative media outlets sounded the alarm that the return of the Fairness Doctrine was imminent (Franc 2007a, 10; Franc 2007b, 10; Pence 2007, 1; Rowland 2007; Scarborough 2008, 18; Wooley 2008, 10; Darling 2008, 15; Anderson and
1

University of CaliforniaIrvine, USA

Corresponding Author: Allison Perlman, 202 Gabrielino Dr., Irvine, CA 92617 Email: ajperlman@gmail.com

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Thierer 2008, 18). The Fairness Doctrine, which the Federal Communications Commission (FCC) repealed in 1987, had required broadcasters to address controversial issues and to provide time for both sides of the controversy. While there was little expressed political will to reinstate this rule, conservative activists and media personalities insisted that once Democrats regain power, they would jump to bring back the Fairness Doctrine as a way to silence conservative voices. In 2009, conceding it unlikely that Democrats would resurrect the Fairness Doctrine in name, conservatives identified a number of media policy initiatives as attempted implementations of a stealth Fairness Doctrine. At the top of their list of duplicitous media reforms were efforts to further diversity through increased minority ownership of broadcasting stations, which conservatives insisted were not legitimate attempts to bring people of color into a sector that historically had discriminated against them but rather masquerades to put conservative stations into liberal hands. Ironies abound in this recent collision of conservative discourse, broadcasting policy, and racial politics in the United States. When the Federal Communications Commission (FCC) repealed the Fairness Doctrine in 1987, conservatives were among some of the loudest voices asking for the rules retention. The abysmally low rates of minority ownership of broadcasting stations resulted from three decades of conservative jurisprudence and from the impact of a marketplace approach to regulation ascendant since the 1980s. And the most recent efforts to encourage minority ownership of broadcasting stations could reasonably be described as tepid and would not threaten the viability or future of the conservative talk sector. Yet the conservative attack on media diversity initiativeson talk radio broadcasts, in the pages of conservative publications, and in the efforts of conservative activist groupsfunctioned not only to make invisible the barriers to participation of people of color in the broadcasting sector and to render claims for diversity suspect, but also to prop up a broader narrative of victimization that denies the existence of prejudice or oppression toward any group, save conservatives. This assault on media diversity initiatives extended a decades-long conservative strategy of invalidating the legitimacy of rightsclaims made by people of color and displacing them with their own claims of injury (Kruse 2007; MacLean 2006, 225-61). This article historicizes and analyzes the stealth Fairness Doctrine crusade. In emphasizing the impact of the contemporary conservative movement on the framing of media policy debates, I hope to expand how media scholars interpret the relationship between conservative politics, race relations, and American media. Media scholars have examined how the rise of the right, cemented by the election of Ronald Reagan in 1980, ushered in an era of increased conservatism on race relations that was facilitated by concurrent shifts in media representation. As television newscasts provided recurring discursive tropes of black and brown criminality and the undeserving black poor, they propped up a conservative order that rendered people of color as threats to the civic body, and therefore outside of the same civic protections afforded to white middle-class Americans (Entman and Rojecki 2000; Gray 1995). Simultaneously, the circulation of what Herman Gray (1997) labels the civil rights

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subjectthe beneficiary of the struggles of the civil rights era, emblematized by The Cosby Shows Huxtable familysimilarly reassured that racism was a thing of the past and that economic and social mobility was possible for all Americans. The multiracial buddy genre and the multicultural casts of film and television series similarly communicated the arrival of interracial cooperation and the symbolic death of racial discrimination and segregation (Guerrero 1993; Fuchs 1993). This article, in contrast, takes the legal and policy arena as its central object of analysis. It specifically applies the insights of Michael Brown et al., in their Whitewashing Race: The Myth of a Color-Blind Society (2003), to the field of media policy. Whitewashing Race repudiates the commonsense assumption that the civil rights era solved the United States racial problems. Highlighting how conservative intellectuals have circulated the myth of a color-blind society, one ostensibly achieved by the legislative victories of the 1960s, the authors of Whitewashing Race illustrate how such claims ignore the cumulative impact of racisms history in the United States and the continuing forms of structural and institutional racism that persist. Their work additionally outlines how law and policy continually have operated as technologies of white privilege. While they focus on housing, education, voting, employment, and criminal justice as sites of continued discrimination, and while they particularly challenge the ideas of conservatives like Dinesh Dsouza, Stephen and Abigail Thernstrom, and Shelby Steele, their analysis could capably have been extended to the media and to the role of conservatives in occluding continued forms of discrimination through their rhetoric of the liberal media, a discourse which maintains that the only group victimized and ignored by media companies and their federal regulators are, in fact, conservatives. By contextualizing and narrating the crusade against the stealth Fairness Doctrine, this article examines the far-reaching political work accomplished by policy discourse. It joins the body of scholarship that rejects the view of the policy-making process as primarily a series of technocratic or administrative decisions in which policy makers deploy rational scientific methods, governed by expert knowledge, to regulate already existing media technologies. In contrast, it views media policy as broadly a decisive arena in which different political preferences are celebrated, contested, or compromised (Freedman 2008, 3). In addition to being a location where medias social and political roles and institutional arrangements are constituted (Streeter 1996), media policy in the United States has operated as a forum where structural power is given or denied and rights claims articulated and validated. The stealth Fairness Doctrine campaign demonstrates how media policy discourse is a critical space where competing understandings of political injury are aired and legitimated, and where racial hierarchies are challenged and maintained. Though this article puts conservatives and conservative ideas in the center of its analysis, I do not suggest that conservatism in the United States is a monolithic entity. The term conservative, as George Nash noted (1976), since World War II has been used as an umbrella term that covers a number of often contradictory ideological positions: antistatism, social traditionalism, economic libertarianism, isolationism,

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neoconservatism, and so on. In addition, historians have told conflicting origin narratives for the contemporary conservative movement, seeing its genesis as an intellectual rejection of postwar liberalism (Nash 1976), as a middle-class social movement in which its participants felt marginalized from mainstream politics and culture (McGirr 2001), or as emerging from white responses to the civil rights movement, in which hostility to integration was reframed in the language of property rights and individual liberty (Kruse 2007; Lassiter 2007). Despite the multiple movements and ideological positions included under conservative, conservatives historically have united around a shared antagonism toward the media and media policy initiatives have functioned as sites of movement cohesion. My use of the term conservative throughout this article acknowledges the instability of the word, yet suggests that the campaign over the stealth Fairness Doctrine was one such moment of cohesion, one premised on both a conservative narrative of victimization and hostility to state action to address racial discrimination.

Prologue: Conservatives and the Fairness Doctrine

Conservatives have long had a stake in the Fairness Doctrine. Adopted in 1949, the Fairness Doctrine both obligated licensees to dedicate airtime to controversies of import to their communities of service and to allow time for viewpoints on both sides of the controversy. The Fairness Doctrine was to promote the public interest by ensuring that broadcast stations were not bully pulpits for their owners but spaces where multiple perspectives were provided to listeners. In 1969, the Supreme Court affirmed the constitutionality of the Fairness Doctrine in its Red Lion decision, arguing that the speech rights of listeners, rather than broadcasters, were paramount in a media sector utilizing a scarce resourcethe airwaveswhere as a condition of receiving a license, broadcasters were justifiably subject to public interest requirements. The Fairness Doctrine, from the 1960s until its repeal in 1987, was crucial to the media reform activism of American social movements, as many organizations targeted media images and practices as part of their broader struggles for social change. While conservatives also deployed the Fairness Doctrine in their media activism, a conservative radio station was the casualty of it. As Heather Hendershot (2007) has illustrated, when Carl McIntire lost his WXUR license in 1973, the Commission not only removed a right-wing speaker, one who espoused views heard as anti-Semitic and racist, but ironically eliminated from the airwaves a political perspective otherwise absent from the community of service. While McIntires was not the first right-wing radio station to lose its licensethe Federal Radio Commission, the precursor to the FCC, did not renew Bob Shulers license in 1930, claiming his incendiary broadcasts failed to serve the public interest (Powe 1987)McIntire holds the distinction of being the only broadcaster to lose a license based solely on a Fairness Doctrine complaint. Though legislators had tried to eliminate the Fairness Doctrine a number of times during the 1970s, it was not until the 1980s that repeal gained traction in the FCC, Congress, and the White House. FCC Chair Mark Fowler, an impassioned advocate of

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media deregulation, held hearings in 1985 to document the impact of the rule on the performance of broadcasters; Senator Bob Packwood similarly convened hearings in the early 1980s to investigate repeal of the Fairness Doctrine. The FCC repealed the Fairness Doctrine on August 4, 1987, a little over a month after Congress had voted for, and President Reagan had vetoed, a bill that would have legislated the rule (Smith 1999). Significantly, the elimination of the Fairness Doctrine affected the trajectory of AM talk radio, a format that, as Susan Douglas (2002) has demonstrated, became more widespread over the 1980s. Conservative talk radio in particular increased in popularity at the end of the decade, and then especially around the 1992 election, as hosts like Rush Limbaugh and G. Gordon Liddy offered political commentary on stations that no longer had a regulatory obligation to provide alternative perspectives (Douglas 2002, 484-92). Importantly, conservatives were on both sides of the Fairness Doctrine issue at the time of its repeal. While many lined up behind Fowler and Packwood, others joined forces with progressive activists to retain the rule. The two most vocal of this latter camp were Reed Irvine and Phyllis Schlafly. Irvine, the founder of Accuracy in Media (AIM), both in articles and in congressional testimony argued against the elimination of the Fairness Doctrine. AIM, which had charted alleged liberal bias in the mainstream media since 1969, had used the Fairness Doctrine to request airtime to counter liberal views; for Irvine, this rule was crucial for conservative voices to poke through the liberal hegemony of American broadcasting. It was unimaginable to Irvine (1987) that, in the absence of the rule, broadcast networks would show any commitment to fairness in their coverage of public issues. It is foolish, he wrote, to think that they suddenly would become addicted to fairness if all legal restraints on their uninhibited exercise of power were removed (16). Similarly, Schlafly (1987) testified in favor of the Fairness Doctrine, arguing that it served as a small restraint on the monopoly power wielded by big TV media. Labeling the three major networks (ABC, CBS, NBC) as robber barons of modern America, who exercise monopoly control over news and information (247), Schlafly asserted that the Fairness Doctrine had been the only tool in her arsenal to get broadcast attention to her objections to the Equal Rights Amendment (ERA) during its ratification process. As Byron York (2007) later would write in a story in the National Review, Schlafly and Irvine back in 1987 could not have anticipated how the repeal of the Fairness Doctrine would enable the rise of conservative talk radio, which itself would provide media exposure to conservative views and balance to the perceived overwhelming liberalism of the mainstream media (34). Significantly, though Schalfly and Irvine were on the same side of the Fairness Doctrine issue as progressive activists like Ralph Nader, their enthusiasm for the policy stemmed from their perception that the mainstream media was corrosively liberal. Such a view has been a mainstay of postwar conservative discourse. Attention to alleged political biases in the mainstream media accelerated after Republican presidential nominee Barry Goldwaters 1964 colossal defeat, which conservatives partially attributed to unfair media coverage. By the end of the decade, vice president

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Spiro Agnew (1969) was railing against the tiny, enclosed fraternity of privileged men elected by no one that controlled the media, and Irvines Accuracy in Media was monitoring the media for evidence of liberal bias. While the liberal bias of the mainstream media has preoccupied American conservatives since the 1960s, from the 1980s onwards it has become a galvanizing issue and rallying cry for the right. L. Brent Bozells Media Research Center (MRC), founded in 1987, has monitored the newscasts of broadcast and cable networks, alongside mainstream print publications, and has issued myriad publications detailing evidence of alleged liberal bias to conservative pundits, members of Congress, subscribers, and publications. The MRCs research has influenced the media critiques of prominent conservatives like Ann Coulter and Bernard Goldberg, and informs the attacks on the mainstream media aired on conservative talk radio and on the Fox News Channel. Fox has joined conservative AM radio hosts and print publications like the Wall Street Journal to form what Kathleen Hall Jamieson and Joseph Cappella (2008) have labeled an echo chamber of conservative perspectives on current events, one that consistently emphasizes how the mainstream press distorts its coverage to advance a liberal agenda. Within this mediascape, conservative outlets have been positioned as the antidote to the overwhelming liberal bias of most news outlets, successfully balancing out the political imbalance of the media. Importantly, the alleged liberalism of the mainstream media has been positioned as hostile to all stripes of conservatism. In the newsletters of the MRC, books and commentary by Coulter and Goldberg, and on air commentary of Limbaugh, the media pose a threat to traditional values, the commitment to small government and conservative fiscal policy, and a foreign policy that prioritizes the spread of American-style capitalism and democracy abroad (Perlman 2007, 168-207). Attacks on the liberal media, much like attacks on the liberal academy, have operated to unite conservatives of varied priorities and ideological positions out of a shared sense of victimization and exclusion. The rise of contemporary conservatism after World War II has relied on both a use and a vilification of the media. The emergence of conservative publications in the 1950s, like the National Review and Regnery Books, was crucial to the formation of the postwar right, as the rise of conservative talk radio and Fox News in the 1980s and 1990s would be to its expansion. Conservative publications not only created a conservative public sphere, where right-leaning intellectuals and pundits could speak to one another, but also inspired what Lisa McGirr (2001) has called kitchen table activists to embrace conservative principles and mobilize politically. Watching William F. Buckley Jr.s long-running public television program The Firing Line was a formative experience for a number of contemporary prominent conservatives (Lowry 2007), and his National Review was not only an important organ of conservative thought but an essential supporter of Young Americans for Freedom (YAF), a conservative campus group formed in 1960 that has produced prominent leaders of the conservative movement (Andrew 1997). These spaces were imagined to be necessary to counter the hostility of the mainstream media to conservative perspectives and thus simultaneously circulated conservative positions while attesting to the bias of existing media

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organizations. Whereas the assumption of the mainstream medias liberalism had been a critical part of postwar conservatism, the impact of media policy on conservative voices, as debates over the Fairness Doctrine in the 1980s attested, would divide freemarket enthusiasts who saw regulations as unnecessary from advocates like Irvine and Schlafly who understood them to be needed checks on the political bias of the media. In the years immediately following the Fairness Doctrines repeal, legislators introduced bills to reinstate the rule in each congressional session (Gleason 1991, 291). The most substantial push for the Fairness Doctrine occurred in 1993 and 1994, after the election of Bill Clinton and attending hopes that a Democratic administration would be more sympathetic to the legislation than the Reagan-Bush White Houses had been. However, in a public campaign that would set the terms on future debates over the Fairness Doctrine, radio talk show host Rush Limbaugh galvanized his listeners to contact their congresspersons to oppose the bill. Dubbing it the Hush Rush bill, Limbaugh announced that the intention behind its return was to push him and fellow conservatives off the airwaves (Wharton 1993a, 10; Wharton 1993b, 57; Roberts 1994, D3; Corry 1993, 50). Despite repeated assertions that conservative radio was not the bills target, and that its detractors mischaracterized what its impact would be (Sohn and Schwartzman 1994, A21), the Hush Rush campaign successfully derailed this attempt to bring back the Fairness Doctrine and showed conservatives that they could capably defeat efforts at media reform by embracing a rhetorical strategy that reframed initiatives as attempts to quell conservative voices and violate the speech rights of members of the political right. By the 1990s, the discursive field on the Fairness Doctrine had shifted. From the 1960s through the policys repeal, advocates and opponents disagreed on how to interpret the First Amendment as it related to broadcasting. Opponents to the rule understood it as a violation of the speech rights of broadcasters, advocates as a protection of the speech rights of broadcasters publics to hear competing viewpoints. In the 1980s, as pressure for repeal mounted, opponents of the Fairness Doctrine enhanced their position by gesturing to the proliferation of media outlets and technologies that obviated this incursion on broadcasters speech rights, while advocates reinforced that concentrated levels of ownership required some means to ensure that diverse voices were provided a platform. The Hush Rush campaign transformed this discourse from one premised on how to locate speech rights in broadcasting policy to one that interpreted this media policy as a tool specifically designed to silence a political minority. The party injured was no longer broadcasters writ large, or members of the public, but conservatives. This assertion, that policy makers hid behind the seemingly neutral language of regulation to attack their political adversaries, would structure conservative attacks on the Fairness Doctrine in the decades to come. Their stealth Fairness Doctrine campaign would unite this framework with an attack on public policies addressing racial discrimination, interpreted as in themselves a pernicious form of racism. This logic, as the next section discusses, became enshrined in media law concurrently with the attacks on the Fairness Doctrine.

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Prologue II: Race, Diversity, and Media Policy

While Congress considered a number of bills in the 1970s to deregulate broadcasting, it would not be until the 1980s when this intention would be enshrined in policy decisions. The FCC, led by Fowler, committed early on to deregulation, or what he and Daniel Brenner (1982) referred to as the marketplace approach to broadcast regulation. Over the course of the 1980s, the FCC loosened ownership rules, rescinded policies to promote localism, and repealed the Fairness Doctrine. In addition, and with the support of the federal courts, the FCC took aim at policies that had been adopted in the late 1960s and 1970s to address the lack of ethnoracial diversity on the airwaves. These attacks of the 1980s and 1990s replicated and extended the ideological assumptions that had led to the repeal of the Fairness Doctrine and fused them with a neoconservative position on racial discrimination and reverse racism (Crenshaw 1988, 1337-50). Media policy had been influenced by the social and political upheavals of the 1960s and 1970s. In the Office of Communication of the United Church of Christ (1966) case, civil rights activists in Jackson, Mississippi, filed a petition to deny the license renewal of WLBT-TV, a station notorious for racist programming practices. Over the long term, WBLTs license was revoked and awarded to African American residents of Jackson; in the short term, the appellate court ruling, in which it extended who had standing (the legal right to be heard) in broadcasting cases to representative and responsible members of the public, opened the door to multiple license challenges in locales across the nation, filed by groups who saw themselves omitted from both representations on air and in broadcasters conceptions of the public they were to serve (Classen 2004; Horwitz 1997). Two years later, the National Advisory Commission on Civil Disorders, or the Kerner Commission, issued its report on the decades race riots. The Report (1968) importantly included a section on the medias role, not just in misreporting on the violence, but in systematically excluding African American perspectives, stories, and views on the airwaves. Broadcastings import was not only in how it reported on the tensions of the era but in its role in perpetuating and naturalizing the second-class status of African Americans. In 1969, in the wake of the Kerner Report and in response to a petition filed by the United Church of Christ, the FCC adopted equal employment opportunity rules for all broadcast licensees. The rules both forbade broadcasters from discrimination in hiring and promotion and required them to take affirmative steps to hire staffs somewhat reflective of the diversity of their communities. The expressed public interest goal of the rules was to promote diversity on air, here to be facilitated by the presence and perspectives enabled by diverse staffs. By 1978, cognizant that the employment rules had done little to diversify the airwaves and responding to an appellate court decision instructing the Commission to prioritize bringing more people of color into the ownership of broadcasting stations (TV9 1973), the FCC (1978) adopted three rules to expand the number of minorities who were licensees. The comparative hearing enhancement provided a credit to minority-owned entities when competing with

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other applicants for a broadcasting license. Under the FCCs distress sale policy, broadcasters who faced losing their licenses could sell their stations to a qualified minority owner for at most 75 percent of the value of the station. The FCC also created a tax certificate program that allowed broadcasters who sold their stations to minority owners to defer payment of capital gains taxes and provided tax certificates to investors who provided start-up capital to minorities. When the FCC adopted these rules, minorities owned less than 1 percent of the nations 8,500 broadcasting stations. The minority ownership enhancements were in keeping with policies adopted by the FCC to promote diversity on the airwaves. Diversity, along with competition and localism, constituted the core of how the FCC defined the public interest obligations of broadcasters, and since the 1940s the Commission had imposed ownership restrictions on licensees to promote diversity. Presuming a nexus between ownership and viewpoint, the FCC assumed that increasing the number of entities who controlled broadcasting stations would broaden the perspectives on offer to listeners. The minority ownership enhancements extended this understanding of diversity to consider not just the number of speakers on the airwaves but who was speaking. Beginning in the 1980s, the FCC and federal courts questioned the necessity and constitutionality of the minority ownership enhancements. The position of the FCC, one echoed by a number of appellate court decisions, hinged on the reciprocal logics of media deregulation and a neoconservative position on race relations. Changes to the media landscape, notably the expansion of cable and the ascent of the videocassette recorder (VCR), to many commissioners necessitated a regulatory shift that acknowledged the proliferation of media outlets and the attending diversity that they seemed to augur. The marketplace approach, which led not only to the repeal of the Fairness Doctrine but the loosening of ownership restrictions, also presumed that the requisite diversity consumers desired would be the logical outgrowth of commercial interests doing what they did best, trying to attract audiences, not by government regulations. This regulatory approach also discounted the presumed relationship between ownership and perspective that had structured ownership policies for decades. An outcome of deregulation was to shore up the position of incumbent licensees and of highly resourced media companies on the one hand, and to make it even more difficult for minority owners to break into the broadcasting sector. If the FCC and the courts believed that ownership regulations ran afoul of the logics of the commercial media marketplace, they simultaneously contended that raceconscious policies violated the principle of equality at the center of American law. To see race and to see it as a meaningful marker of identity, from this vantage point, was both to deny persons their individuality and to refuse the universal humanity shared by all people. It is an orientation that assumes that once de jure discrimination is eliminated, and antidiscrimination principles are enshrined in law, that the problem of racial inequality will wither away. This position was inhospitable to policies that acknowledge the legacy of past structural inequalities on the present and denied the salience of group-based identities to ones experience of the world.

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These two sets of assumptions, of the benefits of media deregulation and of what Gary Peller (1995) has called an integrationist ideology of race relations, operated as the central lines of opposition to the minority ownership enhancements in the 1980s. In 1985, the U.S. Court of Appeals in Steele v. FCC (1985) indicated that it found the minority enhancement credit in comparative hearings unconstitutional and invited the FCC to file a brief defending this policy. The initial decision in Steele emblematized these dual strands of media deregulation and the integrationist ideology. The court opined, There is no reason to assume, for example, that an Italian station owner would primarily program Italian operas or would eschew Wagner in favor of Verdi. Similarly, it is questionable whether a black station owner would program soul rather than classical music or that he would manifest a distinctively black editorial viewpoint. Indeed, to make an assumption concerning an individuals tastes and viewpoints would seem to us mere indulgence in the most simplistic kind of ethnic stereotyping. (1198) The court further insisted To suggest that these dubious, ethnically-determined tastes will outweigh the economic imperative of what the audience wants to hear therefore strikes us as more than a little implausible (1199). When the Commission under Fowler filed its brief on behalf of the minority ownership enhancements in Steele, it stated that the rules, as currently supported and conceived, ran afoul of the Constitution. In 1986, the FCC opened an inquiry on its minority preference policies, which was terminated by Congress in 1987 when, as part of an appropriations bill, it forbade the FCC from touching these ownership programs. By the end of the 1980s, the appellate courts would weigh in again on the minority ownership policies, affirming the comparative hearing enhancement but finding the distress sale policy to be unconstitutional. The rationale in this latter case would directly echo that of Steele, as it combined a belief that the market could tend to the communication needs of the public and that race-conscious policies trafficked in outmoded stereotypes (Shurberg Broadcasting 1989, 922). In Metro Broadcasting v. FCC (1990), the Supreme Court ruled on two cases, one on the minority ownership credit in comparative hearings, the other on the distress sale. As Patricia Williams (1990) demonstrates, the justices in Metro fundamentally disagreed over the contours of equality in a multiracial society. While the majority decision, penned by Justice Brennan, asserted that a broadcasting industry dominated by one racial group (whites) would logically be incapable of representing the diversity of the polity, the respective dissents of Justices OConnor and Kennedy argued that presuming a nexus between viewpoint/taste and racial identity signaled a malevolent and unconstitutional reliance on stereotypes. Drawing a moral equivalence between all forms of race-consciousnessas Williams writes, in only twenty-five years, blacks and Bull Connor have become relativized in this soupy moral economy (543)the dissents in Metro suggested that the majority decision marked an unethical and

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unconstitutional backslide in the nations progress toward racial equality. Five years later, in Adarand Constructors v. Pena (1995), the Court would overturn Metro, using OConnors dissent in the case as the interpretive backbone of its ruling. In 1998, the U.S. District Court of Appeals in Lutheran Church Missouri Synod v. FCC applied the Adarand ruling to the FCCs EEO rules, the first of what would become a string of court decisions that would greatly limit the scope of the equal employment mandates. Thus by the end of the century, all of the policies to bring ethnoracial diversity to the airwaves had been upended. The abandonment of the minority enhancement policies epitomized a broader neoconservative shift in race relations in the ReaganBush eras. As critical race scholars have discussed, this period saw the ascent of a discourse of color-blindness within the juridical and cultural sphere, one that conflated race-consciousness with racism and that presumed that the legislative victories of the 1960s on civil rights had remedied the nations problems with racial discrimination. This view insisted that to continue the conversation over racial discrimination, and to seek remedies for it, was to trample on the rights of hard-working Americans, whom liberals relish in penalizing over bogus claims of inequality. The broadcasting cases of the 1980s and 1990s enshrined this read of American race relations into law, codifying the view that race-conscious programs themselves constituted a form of racism that inflicted undue injury on white Americans. In addition, regulators and the courts reconfigured diversity as something that a robust marketplace yields, not as an actionable public interest goal. The continued legacy of this viewpoint would be felt in the first decade of the twenty-first century in two ways. A decade after the minority enhancements had been rescinded, the FCC revisited the question of diversity on the airwaves. In part, the Commission responded to the appellate court in the Prometheus (2004) case, that had instructed the FCC to examine the impact of its ownership policies on minority and female ownership; in addition a Free Press study, authored by S. Derek Turner and Mark Cooper (2006), had revealed that women and minorities combined owned less than 10 percent of broadcasting stations in the United States. The Commissions plan, discussed more in the next section, devised race-neutral strategies to promote diversity, even though these policies intended to expand ethnoracial diversity on air. The stealth Fairness Doctrine panic that emerged in their wake fused conservative claims of injury with a neoconservative position on race, one that had been codified in the policy and legal decisions of the 1980s and 1990s. This campaign intended to derail media diversity initiatives, advance a conservative narrative of victimization, and limit the parameters of legitimate stakeholders in media policy debates.

The Stealth Fairness Doctrine

In 2007, though the political will to reinstate the Fairness Doctrine was at best feeble, conservative publications and talk show hosts announced that Democrats were intent on bringing it back. The intensity of these anxieties accelerated around and after the 2008 election, as Democrats reclaimed the White House and both houses of Congress

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and, as a result of the former, would have a majority on the FCC. Though Democrats continually reiterated that they had no interest in reviving the Fairness Doctrinethat it was a rallying cry of the right, rather than a viable issue of the leftconservatives continued to beat the drum against its return. For much of 2007 and 2008, conservatives hit on four key notes when discussing the Fairness Doctrine: that its purpose would be to centralize liberal control over the media and to silence conservative dissent; the Fairness Doctrine is a violation of the First Amendment and would trample the vibrant marketplace of ideas currently circulating in American media; that because conservative media speaks to the people and challenges the powerful, entrenched (liberal) elite interests will do anything to undermine it; and that Democrats are a sneaky and crafty bunch who, out of the watchful eye of the compliant mainstream media, will bring back the Fairness Doctrine without regard to public opinion (Bozell 2007a, 1; Bozell 2007b, 1; York 2007, 33-35; Noyes 2008; Anderson and Thierer 2008, 19; Fein 2008, 16; Will 2008). Conservative rhetoric on this issue shifted in 2009 onto concerns over backdoor attempts to bring back the Fairness Doctrine by, as Limbaugh put it, calling it something else (Sands 2009, A06). Specifically, conservatives argued that regulatory efforts aimed at increasing localism or diversity were, in actuality, stealth efforts to silence conservatives and extend liberal hegemony over the airwaves. Two events provoked these accusations. First, conservatives pointed to a report published by the Center for American Progress and Free Press, The Structural Imbalance of Political Talk Radio (2007). This report outlined a relationship between the consolidation of the radio industry, the decline of local ownership of radio stations, and the overwhelming dominance of conservative talk radio. Diagnosing the gap between conservative and progressive talk radio as a structural imbalance caused by media consolidation, the report advocated measures to increase local and minority and female ownership of broadcasting stations. While the report explicitly rejected a push for the Fairness Doctrine, it instead promoted a return to more stringent license renewal process for licensees to ensure that they serve local communities and for changes in ownership rules. The report, which drew connections between the hegemony of conservative talk radio and the impact of deregulatory policies that diminished localism and diversity, perhaps unintentionally sowed the seeds of the conservative discourse that tied localism and diversity efforts directly to attacks on conservative talk radio (Kincaid and Woolley 2007). Conservatives also read an amendment introduced by Illinois Senator Dick Durbin in 2009, which requires the FCC to take affirmative steps to encourage and promote diversity in communication and media ownership and to ensure that broadcast station licenses are used in the public interest, as the first major effort to use the goals of diversity and localism as a mask to silence conservative talk radio. Though, on its face, this amendment seems uncontroversial and in keeping with more than six decades of broadcast regulation, conservatives argued that this was in fact a stealth Fairness Doctrine. The Senate approved the Durbin amendment the same day it voted overwhelmingly to prohibit the FCC from reimposing the Fairness Doctrine in an 8711

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vote in favor of Senator Jim DeMints Broadcaster Freedom Act (Carnevale 2009). Despite the support for this bill, conservatives have insisted that Democrats have not given up on the Fairness Doctrine but rather, via the Durbin Amendment, have tried to use alternate routes to achieve the same objective: silencing conservative talk radio. Immediately after the Durbin Amendment passed, conservative political leaders framed it as a clandestine attacks against the speech and property rights of conservatives. Senator Jim De-Mint (R-SC) issued a press release insisting that it was an attempt to muzzle conservative voices, for example, while Representative Mike Pence (R-Ind.) quickly referred to the Durbin Amendment as a a form of regulation that is essentially the Fairness Doctrine by stealth (Ryan 2009). Bozells Media Research Center was at the fore in popularizing the campaign against the stealth Fairness Doctrine. In its monthly newsletter The Watchdog, Bozell (2009a) announced that the Liberal Media and Obama Declare War on Rush Limbaugh and Conservative Talk Radio. In order to marginalize conservative opposition, the MRC claimed that Democrats would either reinstate the Fairness Doctrine or by regulating the ownership and broadcast licenses of radio stations in the name of diversity and the public interest (1). The goal of diversity initiatives, it warned, is to stifle conservative opinion making them the single greatest threat in the history of our Republic to our sacred freedom of speech (1). The MRCs position, which would find echo across media outlets, was expressed more plainly by Bozell (2009b) when he insisted that diversity and public interest are code for liberalism and liberal views (1). The Durbin Amendment was defined specifically as nothing more than a backdoor attempt to regulate and control conservative talk radio (1). The promotion of diversity here was recast as nothing more than a liberal power grab, one that asserted that the only meaningful divisions in American society were ideological, liberal versus conservative, and subsumed all other forms of difference under this binary. In addition to paying much attention to this issue in the pages of its publications, the MRC also formed a Free Speech Alliance, composed of more than seventy conservative organizations, to combat new threats to silence the right. It secured nearly half a million for its petition to the FCC to reject efforts to censor conservative speech through initiatives like diversity in media ownership or promotion of the public interest. Positioning such regulations, which arguably could include any action by an administrative agency charged with ensuring that the public interest is met, as a direct threat to free and open discourse, the MRC suggested that affirmative regulations on broadcasters would inherently pose a threat to conservative speech rights. This framing of media diversity initiatives reverberated across conservative media outlets, in the words of conservative politicians, and in the editorial pages of mainstream newspapers. Limbaugh (2009a), in an appearance on Glenn Becks show on Fox, defined the new Obama administrations biggest threat as conservative media and, conceding that they cant go Fairness Doctrine because its too obvious, that they would try to do this backdoor route with diversity and ownership. In an open letter to Obama in the Wall Street Journal, Limbaugh (2009b) asked if it was his intention to censor talk radio through a variety of contrivances, such as local content,

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diversity of ownership, and public interest rules (A17). On his radio program, Limbaugh also routinely took aim at media diversity initiatives, insisting that actions like the Durbin Amendment were actually efforts to muzzle his brand of political dissent. It was on his show that Limbaugh most insistently dismissed efforts to bring more minorities into the broadcasting industry as really an effort to silence conservative talk radio (Limbaugh 2009c). Conservative magazine Human Events was also especially emphatic in its efforts against the stealth Fairness Doctrine. It routinely had beaten the drum against the Fairness Doctrines return in 2007 and 2008, and adopted the backdoor Fairness Doctrine anxieties in 2009. Rowan Scarborough (2009), for example, insisted that it was the lefts ultimate goal of shifting licenses away from networks who air conservative talk and toward minority owners who will broadcast liberal programming (17). The FCCs Advisory Committee on Diversity, whose goal was to make recommendations to redress the abysmally low levels of female and minority ownership, also came under attack as another ruse to silence conservatives in the name of diversity of viewpoints (Roberts 2009, 6). This anxiety was perhaps most aggressively expressed by conservative pundit Michelle Malkin (2009) when she implored conservatives to Gird your loins because the diversity-mongers are preparing the next step toward the un-Fairness Doctrine via the FCCs Diversity Committee. Conservatives positioned diversity and localism initiatives as both encroachments on the speech and property rights of conservatives and their audiences, defined as efforts to simultaneously silence conservative perspectives and reassign broadcaster licenses to entities sympathetic to liberal views. This anxiety, that the mainstream media and their federal allies think nothing ofand indeed sanctionthe trampling of conservatives rights rehearsed the longstanding narrative of victimization that has informed conservative politics. Importantly, their conflation of diversity with liberalism suggested that the range of perspectives needed for a marketplace of ideas are confined to the liberal-conservative polarity, and rendered all other forms of identity outside of ones political ideology as inherently unimportant. The actual steps taken by the FCC to promote diversity should have quelled conservative anxieties that their true purpose was to rob conservatives of their speech rights. These more recent initiatives undertaken by the FCC to promote diversity have been cautious. The FCC (2008) adopted a Diversity Order to benefit eligible entities, defined as small businesses: radio stations with no more than $6.5 million in annual earnings, television stations with no more than $13 million. The FCC did not adopt a definition of eligible entity that privileged broadcast owners who are people of color or women, though argued that its new rules would contribute to this form of broadcast ownership diversity since women and minority owned stations that would fall under the definition of eligible entity used (5925-27). In addition, the Commission has sought comments on whether, in the future, it would be advisable and constitutionally sound to revise its definition of eligible entity that would include specifically raceand gender-based categories. Such timidity in approach arguably stems from three decades of court decisions rendering racial classifications constitutionally suspect, especially in the realm of broadcasting policy.

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The goal of the FCCs diversity policies is to expand participation in broadcasting and strengthen the diverse and robust marketplace of ideas that is essential to our democracy (5924)to shore up diversity through changes to broadcast ownership regulation. The rules themselves would not threaten the existing structure of broadcasting nor would they threaten the licenses of current broadcasters. They neither provide loopholes to reassign licenses nor do they signify shifts in regulation that would in any way affect the speech carried on broadcasting stations. The policies provide incentives for capital investment in eligible entities, create opportunities for eligible entities to get a foothold in broadcast station ownership, and prohibit discriminatory practices that have economically harmed small businesses. For example, the FCC reinstated the distress sale policy for eligible entities and adopted a number of policies to encourage investment in eligible entities by, for instance, deciding that any entity that finances or incubates an eligible entity will be given preference in its application for a duopoly in a market that can only support one additional duopoly, according to existing ownership rules. And the FCC barred discrimination, on the basis of race or gender or other protected categories, in broadcast transactions and required licensees to certify at renewal time that they had not agreed to advertising contracts with discriminatory clauses, most notably the no urban/no Spanish dictates that operated against stations with formats serving African American and Latino audiences. The FCCs next initiative (2009) on broadcast diversity was to improve its data collection on minority and female broadcast ownership. In April 2009, it revised Form 323 (the ownership report for commercial broadcast stations), expanded who is required to file the form, and streamlined the filing process so that all licensees will submit the form at the same time. These changes intend to rectify a long-standing problem: the Commissions imprecise data on the actual levels of female and minority ownership. To credibly and legally address the low levels of ownership among people of color and women, and for new policies to pass legal muster, the FCC needs solid data on which to act. The FCC also has sought comments on whether it should similarly revise Form 323-E, the ownership report required of noncommercial stations. It is most likely initiatives like these that Senator Durbin had in mind, or that President Obama meant, when they pronounced the Fairness Doctrine dead in the water and advocated instead attention to policies for access and diversity. To characterize these policies as attempts at a backdoor Fairness Doctrine mischaracterizes their scope and intention. These policies provide a somewhat small opening to encourage diversity in the ownership of broadcasting stations and to prohibit egregious discriminatory practices. Importantly, in their attacks on the stealth Fairness Doctrine, conservatives have not addressed directly the substance of the Diversity Order nor have they, to my knowledge, weighed in on the FCCs data accumulation process. In suggesting that all diversity initiatives are encroachments on the rights of conservatives, conservative media activists not only misrepresented the substance and impact of these efforts, but also obscured the continued barriers to participation of people of color, deflected attention from the uneven impact of media deregulation on the marketplace of ideas, and curtailed the parameters of rights claims over media policy.

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The stealth Fairness Doctrine campaign was a whitewashing of diversity, an insistence that racial difference was no longer meaningful, that the only diversity that mattered was ideological.

Conclusion
The fracas over the Fairness Doctrine is in keeping with decades of conservative media activism that has intended to tar both the media and its federal regulators as liberal ideologues intent on denigrating the political beliefs and ethical positions of conservative Americans. Conservative media activism continually has functioned as an opportunity for the right to construct the media as mouthpiece for the left, media regulation as an instrument of a liberal political agenda, and conservative Americans as perennial victims of a biased media system. In the case of the stealth Fairness Doctrine, conservatives have used this framework to nullify the legitimacy of media diversity initiatives and implicitly to deny the structural barriers to participation for people of color in broadcasting. In addition, this well-orchestrated attack reaffirmed the narrative of victimization that has informed conservative discourse for the past forty years. This campaign against media diversity regulations has contributed a loud voice of protest, one that reframes how to understand the goals of policy proposals, who has been marginalized and sidelined within the business and regulatory arenas, and who constitutes the public and what qualifies as its interest. By conflating diversity with liberalism, conservatives dismiss that racial and ethnic difference still matters and proffer that the only kind of discrimination of import is that perpetuated by power-hungry liberal zealots with no respect for the speech rights of their political adversaries. In mapping the history and context of the conservative stealth Fairness Doctrine attack, my goal is not to exalt media diversity initiatives as the solutions to fix the current mediascape. As media scholars, notably Thomas Streeter (1996), Chon Noriega (2000), and Steven Classen (2004) have demonstrated, the openings for minority participation afforded by broadcasting policy not only has constrained how and what kind of rights claims and challenges could be made but also precludes opposition to the structure of broadcasting or to the corporate liberal assumptions of policy makers. To participate in media reform has been simultaneously to try alter broadcasting practices and programming and implicitly to sanction its structure, the logic of its governance, and the role of the public that policy has ascribed. The new rules adopted in the Diversity Order in no way disrupt the hegemony of large-scale media companies in dominating broadcasting nor the paternalistic relationship between mainstream media and minority media that has defined the history of American broadcasting. In addition, ownership may or may not be the most significant arena to address diversity concerns. Christine Bachen, Allen Hammond, and Catherine Sandoval (2007) have illustrated how minority ownership of broadcasting stations does influence the amount of, and content within, public affairs and news programming; not

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only do these stations tend to air more programs dedicated to local issues but their emphasis and choice of stories reflects stations recognition that people of color constitute a meaningful part of the broadcasting public. In contrast, Beretta SmithShomades (2008) study of cable network BET suggests that black ownership does not necessarily yield a greater array of perspectives and, operating under the same commercial logics as other networks, produces audiences for sponsors by recycling and aping content found in other outlets. Furthermore, the constitution of the category minority within broadcasting policy not only reifies white audiences as the general public that broadcasters are obligated to serve but propels the fiction of a unitary minority community; as Classen (2004) illustrates, policy works as a technology for the constitution of race and racialized subjects (27). In making these critiques, I do not mean to dismiss the Commissions diversity initiatives, but rather to remind that they are not panaceas and that they are not without their own implications in how race and identity is understood in the United States. But what these media diversity initiatives are not are attacks on the speech and property rights of conservatives. The stealth Fairness Doctrine campaign combined conservatives assertion of a hegemonic liberal media with their reframing of whose rights and liberties are at stake in civil rights actions. In conjuring up backdoor Fairness Doctrine efforts, conservatives simultaneously erased the impact of the conservative ascendancy on opportunities and access for people of color within broadcasting and restricted the field of legitimate rights claims within the policy arena to those articulated by the political right and its allies. Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding
The author received no financial support for the research, authorship, and/or publication of this article.

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Bio
Allison Perlman is an assistant professor at the University of California-Irvine in the departments of history and film and media studies. Her research examines the intersection between broadcasting policy, media activism, and American social movements. She is coeditor of Flow TV: Television in the Age of Media Convergence.

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