John Fund
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Rep. Pence says he knows all about the power of talk radio because he used to host a statewide show in Indiana, where he describes himself as "the decaf Rush Limbaugh." He believes the Fairness Doctrine would "amount to government control over political views expressed on the public airwaves." In June his first effort to impose a one-year moratorium on any revival of the Fairness Doctrine by the FCC passed, 309-115, with nearly half of House Democrats voting in favor.

But a one-year moratorium was an easy vote, because there is no reason to expect the Fairness Doctrine to make a comeback before 2009, when a new president--perhaps a Democrat--appoints a majority of FCC commissioners.

That's why Mr. Pence is proposing the Broadcaster Freedom Act, a bill that would permanently bury the Fairness Doctrine. Because House Democratic leaders are unlikely to allow it to come to the floor for a vote, Mr. Pence has launched a "discharge petition," a device to bypass House committees and move the bill directly to the floor. He needs 218 members--a House majority--to sign the petition. He has collected 185 signatures, but all from Republicans. Democrats are being told by their leadership that signing such a petition would undermine their control of the House.

Mr. Pence, says that "freedom should not be a partisan issue" and that he is optimistic that he can collect the signature of every Republican and then pluck off some 20 of the Democrats who voted for his one-year moratorium last summer (he'd need at least 18).

The stakes are high. "Lovers of liberty must expose calls to restore the Fairness Doctrine for the fraudulent power-grab that they plainly are," writes Brian Anderson, editor of the Manhattan Institute's City Journal.

That's because the attempts to control the airwaves won't stop with so-called equal time rules. Al Franken, the liberal former Air America host who is now running for the Senate in Minnesota, is already slipping into the role of potential legislative censor of his old industry. "You shouldn't be able to lie on the air," he told Newsweek's Mr. Fineman earlier this year. "You can't utter obscenities in a broadcast, so why should you be able to lie? You should be fined for lying."

In fact, you can be "fined" for lying, if the person you lie about successfully sues for defamation. But the First Amendment makes it exceedingly difficult for defamation plaintiffs to prevail, especially if they are public figures--and for good reason. Under a more pro-plaintiff legal regime, "the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive," Justice William Brennan wrote in New York Times v. Sullivan (1964).

Justice Brennan used to be a liberal hero. If he were alive today, he would surely be dismayed to learn that liberals seem to have concluded they have no use for the First Amendment.

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John Fund

John Fund writes the weekly "On the Trail" column, reprinted here with permission from the Wall Street Journal and OpinionJournal.com. He is author of "Stealing Elections: How Voter Fraud Threatens Our Democracy" (Encounter, 2004).

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