Fairness doctrine

The Fairness Doctrine was a policy of the U.S. Federal Communications Commission (FCC) that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that was (in the FCC's view) honest, equitable, and balanced. The United States Supreme Court has upheld the Commission's general right to enforce such a policy where channels are limited, but the courts have generally not considered that the FCC is obliged to do so. The FCC has since withdrawn the Fairness Doctrine, prompting some to urge its reintroduction through either Commission policy or Congressional legislation.

Overview

The Fairness Doctrine was introduced in the U.S. in 1949 (Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 [1949]). The doctrine remained a matter of general policy, and was applied on a case-by-case basis until 1967, when certain provisions of the doctrine were incorporated into FCC regulations. It did not require equal time for opposing views, but required that contrasting viewpoints be presented. The Fairness Doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows or editorials.

Decisions of the United States Supreme Court

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8-0) the constitutionality of the Fairness Doctrine in a case of an on-air personal attack, in response to challenges that the Doctrine violated the First Amendment to the U.S. Constitution. The case began when journalist Fred J. Cook, after the publication of his Goldwater: Extremist of the Right, was the topic of discussion by Billy James Hargis on his daily Christian Crusade radio broadcast on WGCB in Red Lion, Pennsylvania. Mr. Cook sued arguing that the FCC’s fairness doctrine entitled him to free air time to respond to the personal attacks.

Although similar laws had been called unconstitutional when applied to the press, the Court cited a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in this way due to the limited spectrum of the public airwaves. Writing for the Court, Justice Byron White declared:

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

The Court warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered.

However, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court), "Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate." This decision differs from Red Lion v. FCC in that it applies to a newspaper, where there is no such technical limit on the number of possible newspapers.

In 1984, the Supreme Court ruled that Congress could not forbid editorials by non-profit stations that received grants from the Corporation for Public Broadcasting (FCC v. League of Women Voters of California, 468 U.S. 364 (1984)). The Court's 5-4 majority decision by William J. Brennan, Jr. stated that while many now considered that expanding sources of communication had made the Fairness Doctrine's limits unnecessary, "We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required." (footnote 11). After noting that the FCC was considering repealing the Fairness Doctrine rules on editorials and personal attacks out of fear that those rules might be "chilling speech", the Court added

Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine "[has] the net effect or reducing rather than enhancing" speech, we would then be forced to reconsider the constitutional basis of our decision in that case. (footnote 12).

End of Fairness Doctrine

Under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's presidential campaign staff in 1976 and 1980, the commission began to repeal parts of the Fairness Doctrine, announcing in 1985 that the doctrine hurt the public interest and violated the First Amendment.

In one landmark case, the FCC argued that teletext was a new technology that created soaring demand for a limited resource, and thus could be exempt from the Fairness Doctrine. The Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) argued that teletext transmissions should be regulated like any other airwave technology, hence the Fairness Doctrine was applicable (and must be enforced by the FCC).

In 1986, Judges Robert Bork and Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit concluded that the Fairness Doctrine did apply to teletext but that the FCC was not required to apply it.  In a 1987 case, Meredith Corp. v. FCC, two other judges on the same court declared that Congress did not mandate the doctrine and the FCC did not have to continue to enforce it.

In August 1987, the FCC abolished the doctrine by a 4-0 vote, in the Syracuse Peace Council decision, which was upheld by the Appeals Court for the D.C. Circuit in February 1989. The FCC stated, "the intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists," and suggested that, due to the many media voices in the marketplace, the doctrine be deemed unconstitutional.

Reaction

In June 1987, Congress had attempted to preempt the FCC decision and codify the Fairness Doctrine , but the legislation was vetoed by President Ronald Reagan. Another attempt to revive the doctrine in 1991 ran out of steam when President George H.W. Bush threatened another veto.

Two corollary rules of the doctrine, i.e., the "personal attack" rule and the "political editorial" rule, remained in practice until 2000. The "personal attack" rule applied whenever a person (or small group) was subject to a personal attack during a broadcast. Stations had to notify such persons (or groups) within a week of the attack, send them transcripts of what was said and offer the opportunity to respond on-the-air. The "political editorial" rule applied when a station broadcast editorials endorsing or opposing candidates for public office, and stipulated that the unendorsed candidates be notified and allowed a reasonable opportunity to respond.

The U.S. Court of Appeals for the D.C. Circuit ordered the FCC to justify these corollary rules in light of the decision to repeal the Fairness Doctrine. The FCC did not provide prompt justification, and ultimately ordered their repeal in 2000.

Support for reinstitution of the Fairness Doctrine

Some legislators have expressed interest in reinstituting the Fairness Doctrine although none have introduced any bills to do so.

• John Gizzi, the Political Editor of Human Events, wrote that House Speaker Nancy Pelosi told reporters that the Democratic caucus was interested in bringing back the Fairness Doctrine.

• Senator Richard Durbin has said "It’s time to reinstitute the Fairness Doctrine.”

• Senator John Kerry has said, "Well, I think the Fairness Doctrine ought to be there..."

In an August 13, 2008 telephone poll released by Scott Rasmussen, 47% of 1,000 likely voters supported a government requirement that broadcasters offer equal amounts of liberal and conservative commentary, while 39% opposed such a requirement. In the same poll, 57% opposed, and only 31% favored, requiring Internet web sites and bloggers that offer political commentary to present opposing points of view. By a margin of 71%-20% the respondents agreed that it is "possible for just about any political view to be heard in today’s media" (including the Internet, newspapers, cable TV and satellite radio), but only half the sample said they had followed recent news stories about the Fairness Doctrine closely. (The margin of error had a 95% chance of being within ± 3%.)

Opposition to reinstitution of the Fairness Doctrine

The Fairness Doctrine has been strongly opposed by prominent libertarians and liberals who view it as an attempt to regulate or mandate certain types of speech on the airwaves. Editorials in The Wall Street Journal and The Washington Times have said that Democratic attempts to bring back the Fairness Doctrine have been made largely in response to and contempt for the successes of conservative talk radio.

On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet. It could also include "government dictating content policy". The conservative Media Research Center's Culture & Media Institute argued that the three main points supporting the Fairness Doctrine - media scarcity, liberal viewpoints being censored at a corporate level, and public interest - are all myths.

Legislation

In the 109th Congress (2005-2007), Representative Maurice Hinchey (Democrat of New York) introduced legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, had 16 co-sponsors in Congress.

In the 110th Congress (2007-2009), no legislation to restore the Fairness Doctrine has been introduced. Senator Norm Coleman (Republican of Minnesota) proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule." It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee’s jurisdiction".

Further reading

• The Good Guys, The Bad Guys and The First Amendment: Free speech vs. fairness in broadcasting by Fred W. Friendly (Random House; 1976) (ISBN 0-394-49725-2) A history of the Red Lion case and the fairness doctrine.

External links

• Fairness Doctrine by Val E. Limburg, from the Museum of Broadcast Communications
• Fairness Doctrine from NOW on PBS
• The Media Cornucopia from City Journal

See also

• Equal-time rule
• Free speech
• Prior restraint
• Nakdi Report