The Fairness Doctrine was a policy of the United States Federal Communications
Commission, introduced in 1949, that required the holders of broadcast
licenses to both present controversial issues of public importance and to do so
in a manner that was—in the Commission's view—honest, equitable, and balanced.
The FCC eliminated the Doctrine in 1987, and in August 2011 the FCC formally
removed the language that implemented the Doctrine.
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. The
doctrine did not require equal time for opposing views but required that
contrasting viewpoints be presented. The demise of this FCC rule has been
considered as a contributing factor for the rising level of party polarization
in the United States. The main agenda for the doctrine was to
ensure that viewers were exposed to a diversity of viewpoints. In 1969 the
United States Supreme Court upheld the FCC's general right to enforce the
Fairness Doctrine where channels were limited. But the courts did not rule
that the FCC was obliged to do so. The courts reasoned that the scarcity of the
broadcast spectrum, which limited the opportunity for access to the airwaves,
created a need for the Doctrine. However, the proliferation of cable
television, multiple channels within cable, public-access channels, and the
Internet have eroded this argument, since there are plenty of places for
ordinary individuals to make public comments on controversial issues at low
or no cost at all. The Fairness Doctrine should not be
confused with the Equal Time rule. The Fairness Doctrine deals with discussion
of controversial issues, while the Equal Time rule deals only with political
candidates. Origins
In 1949, the Mayflower Doctrine, which had forbid editorializing on the radio
since 1941, was repealed. This made way for the Fairness Doctrine. The 1949 FCC
Commission Report served as the foundation for the Fairness Doctrine. It
established two forms of regulation on broadcasters: to provide adequate
coverage of public issues, and to ensure that coverage fairly represented
opposing views. The second rule required broadcasters to provide reply time to
issue-oriented citizens. Broadcasters could therefore trigger Fairness
Doctrine complaints without editorializing. The commission required
neither of the Fairness Doctrine's obligations before 1949. Until then
broadcasters had to satisfy only general “public interest” standards of the
Communications Act. 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.
In a 1969 textbook case, the United States courts of appeals, in an opinion
written by Warren Burger, directed the FCC to revoke Lamar Broadcasting's
licence for television station WLBT due to the station's segregationist politics
and ongoing censorship of NBC network news coverage of the US civil rights
movement. Application of the Doctrine by the FCC
In 1974, the Federal Communications Commission stated that the Congress had
delegated it the power to mandate a system of "access, either free or paid,
for person or groups wishing to express a viewpoint on a controversial public
issue..." but that it had not yet exercised that power because licensed
broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It
warned that: 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 and Media Access Project argued
that teletext transmissions should be regulated like any other airwave
technology, hence the Fairness Doctrine was applicable. 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.
Decisions of the United States Supreme Court
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, the U.S. Supreme Court upheld
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 Fairness
Doctrine entitled him to free air time to respond to the personal attacks.
Although similar laws are unconstitutional when applied to the
press, the Court cited a Senate report stating that radio stations could be
regulated in this way because of the limited public airwaves at the time.
Writing for the Court, Justice Byron White declared:
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, Chief Justice Warren Burger wrote: This decision differs from Red Lion v.
FCC in that it applies to a newspaper, which, unlike a broadcaster, is
unlicensed and can theoretically face an unlimited number of competitors.
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). 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:
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:
Revocation = Basic doctrine=
In 1985, under FCC Chairman Mark S. Fowler, a communications attorney who
had served on Ronald Reagan's presidential campaign staff in 1976 and
1980, the FCC released a report stating that the doctrine hurt the public
interest and violated free speech rights guaranteed by the First Amendment.
In August 1987, under FCC Chairman Dennis R. Patrick, the FCC abolished the
doctrine by a 4-0 vote, in the Syracuse Peace Council decision, which was upheld
by a panel of the Appeals Court for the D.C. Circuit in February 1989, though
the Court stated in their decision that they made "that determination without
reaching the constitutional issue." The FCC suggested in Syracuse Peace Council
that because of the many media voices in the marketplace, the doctrine be deemed
unconstitutional, stating that: At the 4-0 vote, Chairman Patrick said,
The FCC vote was opposed by members of Congress who said the FCC had tried to
"flout the will of Congress" and the decision was "wrongheaded, misguided and
illogical.". The decision drew political fire and tangling, where cooperation
with Congress was at issue. In June 1987, Congress 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
was stopped when President George H.W. Bush threatened another veto.
Fowler said in February 2009 that his work toward revoking the Fairness
Doctrine under the Reagan Administration had been a matter of principle, not
partisanship. Fowler described the White House staff raising concerns, at a time
before the prominence of conservative talk radio and during the preeminence of
the Big Three television networks and PBS in political discourse, that
repealing the policy would be politically unwise. He described the
staff's position as saying to Reagan: Instead, Reagan supported the effort and
later vetoed the Democratic-controlled Congress's effort to make the doctrine
law. = Corollary rules=
Two corollary rules of the doctrine, the personal attack rule and the "political
editorial" rule, remained in practice until 2000. The "personal attack" rule
applied whenever a person was subject to a personal attack during a broadcast.
Stations had to notify such persons 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. Reinstatement considered
= Support= In February 2005, U.S. Representative
Louise Slaughter and 23 co-sponsors introduced the Fairness and
Accountability in Broadcasting Act in the 1st Session of the 109th Congress of
2005-7. The bill would have shortened a station's license term from eight years
to four, with the requirement that a license-holder cover important issues
fairly, hold local public hearings about its coverage twice a year, and document
to the FCC how it was meeting its obligations. The bill was referred to
committee, but progressed no further. In the same Congress, Representative
Maurice Hinchey 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 June 2007, Senator Richard Durbin
said, "It's time to reinstitute the Fairness Doctrine," an opinion shared by
his Democratic colleague, Senator John Kerry. However, according to Marin Cogan
of The New Republic in late 2008: On June 24, 2008, U.S. Representative
Nancy Pelosi, the Speaker of the House at the time, told reporters that her
fellow Democratic Representatives did not want to forbid reintroduction of the
Fairness Doctrine, adding "the interest in my caucus is the reverse." When asked
by John Gizzi of Human Events, "Do you personally support revival of the
'Fairness Doctrine?'", the Speaker replied "Yes." On October 22, 2008,
Senator Jeff Bingaman told a conservative talk radio host in
Albuquerque, New Mexico: On December 15, 2008, U.S.
Representative Anna Eshoo told The Daily Post in Palo Alto, California that she
thought it should also apply to cable and satellite broadcasters.
On February 11, 2009, Senator Tom Harkin told Press, "...we gotta get the
Fairness Doctrine back in law again." Later in response to Press's assertion
that "...they are just shutting down progressive talk from one city after
another," Senator Harkin responded, "Exactly, and that's why we need the
fair—that's why we need the Fairness Doctrine back." Former President Bill
Clinton has also shown support for the Fairness Doctrine. During a February 13,
2009, appearance on the Mario Solis Marich radio show, Clinton said:
Clinton cited the "blatant drumbeat" against the stimulus program from
conservative talk radio, suggesting that it doesn't reflect economic reality.
= Opposition= The Fairness Doctrine has been strongly
opposed by prominent conservatives and libertarians who view it as an attack on
First Amendment rights and property rights. Editorials in The Wall Street
Journal and The Washington Times in 2005 and 2008 said that Democratic attempts
to bring back the Fairness Doctrine have been made largely in response to
conservative talk radio. In 2007, Senator Norm Coleman 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".
In the same year, the Broadcaster Freedom Act of 2007 was proposed in the
Senate by Senators Coleman with 35 co-sponsors and John Thune with 8
co-sponsors and in the House by Republican Representative Mike Pence
with 208 co-sponsors. It provided that: Neither of these measures came to the
floor of either house. 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, 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.
On February 16, 2009, Mark Fowler said: In the 111th Congress, the Broadcaster
Freedom Act of 2009 was introduced to block reinstatement of the Doctrine. On
February 26, 2009, by a vote of 87-11, the Senate added that act as an
amendment to the District of Columbia House Voting Rights Act of 2009, [a bill
which later passed the Senate 61-37, but not the House of Representatives]. The
Associated Press reported that the vote on the Fairness Doctrine rider was:
The AP report went on to say that President Obama had no intention of
reimposing the doctrine, but Republicans wanted more in the way of a guarantee
that the doctrine would not be reimposed.
= Suggested alternatives= Media reform organizations such as Free
Press feel that a return to the Fairness Doctrine is not as important as setting
stronger station ownership caps and stronger "public interest" standards
enforcement. In June 2008, Barack Obama's press
secretary wrote that Obama: In February 2009, a White House
spokesperson said that President Obama continues to oppose the revival of the
Doctrine. = Public opinion=
In an August 13, 2008 telephone poll released by Rasmussen Reports, 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 31% favored
requiring Internet websites 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", but only half the sample said they had followed recent news stories
about the Fairness Doctrine closely. Formal revocation
In June 2011, the Chairman and a subcommittee chairman of the House
Energy and Commerce Committee, both Republicans, said that the FCC, in
response to their requests, had set a target date of August 2011 for removing
the Fairness Doctrine and other "outdated" regulations from the FCC's
rulebook. On August 22, 2011, the FCC formally
voted to repeal the language that implemented the Fairness Doctrine, along
with removal of more than eighty other rules and regulations, from the Federal
Register following a White House executive order directing a
"government-wide review of regulations already on the books", to eliminate
unnecessary regulations. See also
False balance Free speech
Nakdi Report Prior restraint
Accurate News and Information Act - Canadian equivalent
References Further reading
Fred W. Friendly, The Good Guys, the Bad Guys and the First Amendment: Free
Speech vs. Fairness in Broadcasting—a history of the Red Lion case and the
Fairness Doctrine. External links
A primer on the Fairness Doctrine and how its absence now affects politics and
culture in the media. Fairness Doctrine by Val E. Limburg,
from the Museum of Broadcast Communications
Fairness Doctrine from NOW on PBS The Media Cornucopia from City Journal
Important legislation for and against the Fairness Doctrine from Ceasespin.org
Speech to the Media Institute by FCC Commissioner Robert M. McDowell on
January 28, 2009, outlining the likely practical and constitutional challenges
of reviving a fairness or neutrality doctrine