Limbaugh Was Partly Scalia and Bork’s Fault

The admittedly and lamentably glorious career of the most prominent racist, sexist, poisonous radio host of our time probably never would have happened if it weren’t for a policy change: the repeal of the Fairness Doctrine, under Ronald Reagan. And that repeal wouldn’t have happened without the efforts of three men, one of whom most people forget today but the other two of whom loom very large indeed in the annals of the right-wing takeover of the country.

The Fairness Doctrine went back in spirit to the 1920s, not long after the invention of radio. This seemingly magic medium was in fact the transmission of signals over a certain band of frequencies via a process called amplitude modulation (that is, AM). It was different from previous technologies in one key respect: Whereas the number of newspapers that could exist was theoretically limitless, the number of radio stations that could exist was limited because the frequencies were finite, as anyone old enough to remember looking at the AM radio dial in your dad’s car could tell you.

To get a piece of the action, broadcasters applied for and were rewarded licenses. A 1934 law decreed that holders of licenses had to devote a certain amount of airtime to public affairs. Then, when television came along, a new law reaffirmed that broadcasters had to do that, and more: Their programs had to be designed “so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community.”

This was the Fairness Doctrine. Administrations of both parties enforced it for two decades or more, but in the 1970s, technology created more and more stations, and some broadcasters began to make the argument that the doctrine actually impinged on their First Amendment rights and that the plethora of outlets all but ensured that all points of view would be represented. And after Ronald Reagan won in 1980, they had an Administration that would give their arguments a fairer hearing.

Reagan’s FCC chair was Mark Fowler, and he was pro-repeal, but he wasn’t the key figure. That would be Senator Bob Packwood—little-remembered today, but quite powerful in his time, until he was felled by a recurring sexual harassment scandal in which he very clearly used his power to get female employees and lobbyists to respond to his advances. Ultimately 19 women were involved, and he resigned in disgrace, but not before he spent years railing against what he called the “fearness doctrine.”

He was in the minority. In 1986, Congress passed a law protecting the doctrine by wide bipartisan margins—79 Republicans in the House and 18 in the Senate joined Democratic majorities to uphold it. But Reagan vetoed it. And three months later, a three-judge panel for the Court of Appeals for the District of Columbia ruled by 2-1 that implementation of the doctrine should be discretionary.

Those two judges? Antonin Scalia and Robert Bork.