Arguments

Limbaugh Was Partly Scalia and Bork’s Fault

The racist talk-show host didn’t just materialize from the free market. A policy change created him.

By Michael Tomasky

Tagged Antonin ScalialawmediaRepublicansRonald Reagan

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.

At the time of that ruling, Rush Limbaugh had a radio show in Sacramento, skirting the doctrine with his extremely partisan lancing of Democratic California pols. But the ratings were good, and soon enough, ABC Radio noticed, and he moved to New York and went national. Ratings went through the roof. Imitators followed. And followed.

And liberal talk radio, of course, never caught on. Limbaugh and other conservatives liked to crow that liberal opinion didn’t sell on the free market, and in one sense, it can’t be denied that they were right. But liberals weren’t willing to go where Limbaugh and his imitators went.

The main thing that was new about him was that he was utterly unconstrained by the difference between fact and fiction. He’d hear rumors and just roll with them. He once said during the Clinton era that aide Vince Foster, far from shooting himself in Fort Marcy Park as the police had ruled, had been murdered in an apartment owned by Hillary Clinton. Where did he hear that? Who knows? Eventually it was somehow traced back to New York Senator Pat Moynihan, who declared it “breathtakingly untrue.”

His career, summed up in one sentence, is that he taught hundreds of imitators that they should and could say anything for the purpose of partisan advantage, because they could probably get away with it. No one had ever before hinted that the First Lady was a lesbian or a crook or any number of the other things he called Hillary Clinton. But she was a public figure, and Times v. Sullivanestablished an awfully high bar, under which you could traffic in all manner of insult and innuendo.

He’s done more to poison our politics than anyone I can think of in the last 50 years outside of Newt Gingrich and Donald Trump. And he probably would never have become the star he became without the efforts of a sexual predator senator and two of the most right-wing jurists of the last half century. Limbaugh’s career is one of the most conspicuous examples of how the right-wing feedback loop amplified itself and changed discourse forever, and for the worse.

Read more about Antonin ScalialawmediaRepublicansRonald Reagan

Michael Tomasky is the editor of Democracy: A Journal of Ideas and a special correspondent for The Daily Beast.

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