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. [http://www.epic.org/free_speech/red_lion.html "Red Lion Broadcasting Co." v. "FCC"] also at Ussc|395|367|1969 (Excerpt from Majority Opinion, III A; Senate report cited in footnote 26). Justice William O. Douglas did not participate in the decision, but there were no concurring or dissenting opinions.] The FCC has since withdrawn the Fairness Doctrine, prompting some to urge its reintroduction through either Commission policy or Congressional legislation. [Clark, Drew (20 October 2004) [http://www.slate.com/id/2108443/ "How Fair Is Sinclair's Doctrine?"] "Slate"]

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. [Donald P. Mullally, "The Fairness Doctrine: Benefits and Costs", The Public Opinion Quarterly, Vol. 33, No. 4 (Winter, 1969-1970), p. 577] 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", Ussc|395|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. [Tom Joyce: [http://docs.newsbank.com/openurl?ctx_ver=z39.88-2004&rft_id=info:sid/iw.newsbank.com:NewsBank:YDRB&rft_val_format=info:ofi/fmt:kev:mtx:ctx&rft_dat=0FAE0731EA2EE1CD&svc_dat=InfoWeb:aggregated4&req_dat=11ECDBF131F44C689BB0EDBA11D99EE0 “His call for a reply set up historic broadcast ruling; Fred J. Cook, whose book was attacked on Red Lion radio station WGCB in 1964, died recently at age 92.”] "York Daily Record" (Pennsylvania), May 6, 2003, retrieved on August 17, 2008]

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", Ussc|418|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", Ussc|468|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). [The quotation is from Section III C of "Red Lion" v. "FCC" Ussc|395|367|1969. Justice Brennan's opinion was joined by Justices Thurgood Marshall, Harry Blackmun, Lewis Powell and Sandra Day O'Connor. Dissenting opinions were written or joined by Chief Justice Warren Burger and Justices William Rehnquist, Byron White and John Paul Stevens]

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. [ [http://www.altlaw.org/v1/cases/419289 "Telecommunications Research and Action Center" v. "FCC", 801 F.2d 501 (D.C. Cir. 1986)] retrieved on August 17, 2008] 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. [ [http://www.altlaw.org/v1/cases/421421 "Meredith Corp." v. "FCC", 809 F.2d 863 (D.C. Cir. 1987)] , retrieved on August 17, 2008]

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. [ [http://www.altlaw.org/v1/cases/421365 "Syracuse Peace Council" v. "FCC", 867 F.2d 654 (D.C. Cir. 1989)] , retrieved on August 17, 2008] 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 [The Fairness in Broadcasting Act of 1987, S. 742 & H.R. 1934, 100th Cong., 1st Sess. (1987)] , 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. [ [http://www.museum.tv/archives/etv/F/htmlF/fairnessdoct/fairnessdoct.htm Fairness Doctrine] by Val E. Limburg, Museum of Broadcast Communications]

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 [http://www.foxnews.com/story/0,2933,286442,00.html "Fox News Sunday Transcript"] Transcript of Senators Lott, Feinstein, June 24, 2007] 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. [cite web
title = Pelosi Supports ‘Fairness’ Doctrine
publisher = Human Events
date=2008-06-25
url=http://www.humanevents.com/article.php?id=27185
accessdate = 2008-07-02 ]

* Senator Richard Durbin has said "It’s time to reinstitute the Fairness Doctrine.” [ [http://thehill.com/leading-the-news/gop-preps-for-talk-radio-confrontation-2007-06-27.html TheHill.com - GOP preps for talk radio confrontation ] ]

* Senator John Kerry has said, "Well, I think the Fairness Doctrine ought to be there..." [cite web
title = Kerry Wants Fairness Doctrine Reimposed
publisher = Broadcasting and Cable
date = 2007-06-27
url = http://www.broadcastingcable.com/article/CA6456031.html
access date = 2008-07-16 ]

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%.) [ [http://rasmussenreports.com/public_content/politics/general_politics/47_favor_government_mandated_political_balance_on_radio_tv 47% Favor Government Mandated Political Balance on Radio, TV] , Rasmussen Reports press release, Thursday, August 14, 2008 and [http://rasmussenreports.com/public_content/politics/election_20082/pt_survey_toplines/august_2008/toplines_fairness_doctrine_august_13_2008 Toplines - Fairness Doctrine - August 13, 2008] (Questions and answers from the survey).]

Opposition to reinstitution of the Fairness Doctrine

The Fairness Doctrine has been strongly opposed by prominent libertarians and conservatives 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. [cite web
title = Rush to Victory
publisher = "The Wall Street Journal"
date=2005-04-29
url=http://www.opinionjournal.com/columnists/dhenninger/?id=110006626
accessdate = 2008-07-01 ] [cite web
title = ‘Fairness’ is Censorship
publisher = "The Washington Times"
date=2008-06-17
url=http://www.washingtontimes.com/news/2008/jun/17/fairness-is-censorship/
accessdate = 2008-07-01 ]

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. [ [http://www.businessandmedia.org/articles/2008/20080812160747.aspx August 13, 2008 Business & Media Institute article on Fairness Doctrine also controlling Internet content.] ] It could also include "government dictating content policy". [http://www.eyeblast.tv/Public/Video.aspx?rsrcID=34016] 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. [ [http://www.cultureandmedia.com/specialreports/2008/Fairness_Doctrine/CMI_FairnessDoctrine_Single.pdf Culture & Media Institute report on The Fairness Doctrine.] - accessed August 13, 2008.]

Media reform organizations such as Free Press feel that a return to the Doctrine is not as important as setting stronger station ownership caps and stronger "public interest" standards enforcement (with fines given to public broadcasting). [ [http://www2.freepress.net/docs/talk_radio.pdf "The Structural Imbalance of Talk Radio", Free Press, Center for American Progress] ]

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. [Summary at cite web|url=http://www.house.gov/hinchey/issues/mora.shtml|title=Media Ownership Reform Act of 2005|accessdate 2007-09-12 - Full text at [http://www.thomas.gov/home/gpoxmlc109/h3302_ih.xml H.R. 3302 Media Ownership Reform Act of 2005] retrieved on August 17, 2008.]

In the 110th Congress (2007-2009), no legislation to restore the Fairness Doctrine has been introduced. Fact|date=September 2007 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." [cite web |url=http://www.commondreams.org/archive/2007/07/14/2514/
title=Democrats Block Amendment to Prevent Fairness Doctrine
author=Frommer, Frederic J.
publisher=Associated Press
accessdate 2007-08-10] It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee’s jurisdiction".

References

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

* [http://www.museum.tv/archives/etv/F/htmlF/fairnessdoct/fairnessdoct.htm Fairness Doctrine] by Val E. Limburg, from the Museum of Broadcast Communications
* [http://www.pbs.org/now/politics/fairness.html Fairness Doctrine] from "NOW" on PBS
* [http://www.city-journal.org/html/17_2_media.html The Media Cornucopia] from "City Journal"

ee also

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