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The Fairness Doctrine was a United States FCC regulation requiring broadcast licensees to present controversial issues of public importance in a manner deemed by the FCC to be honest, equitable and balanced. The doctrine has since been withdrawn by the FCC, and certain aspects of the doctrine have been questioned by courts.

Overview

The Fairness Doctrine was introduced in an atmosphere of anti-Communist sentiment in the US in 1949 (Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 ). 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 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Supreme Court upheld the constitutionality of the Fairness Doctrine in a case of an on-air personal attack, in response to challenges that it violated the First Amendment. The case began when journalist Fred J. Cook, after his publication of 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, PA. 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 ) stating that radio stations could be regulated in this way due to the limited spectrum of the public airwaves.

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 the previous in that it applies to a newspaper, where there is no limit on the number of possible newspapers.

Supreme Court 1969 decision

• "A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a... 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."

U.S. Supreme Court, upholding the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 1969.

The Court warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered. Without ruling the doctrine unconstitutional, the Court also concluded in a subsequent case (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241) that the doctrine "inescapably dampens the vigor and limits the variety of public debate."

Use as a Political Weapon

The fairness doctrine has been used by various administrations to harass political opponents on the radio. Bill Ruder, Assistant Secretary of Commerce in the Kennedy administration, and acknowledged that "Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." Former Kennedy FCC staffer Martin Firestone wrote a memo to the Democratic National Committee on strategies to combat small rural radio stations unfriendly to Democrats:

The right-wingers operate on a strictly cash basis and it is for this reason that they are carried by so many small stations. Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule.

Democratic Party operatives were deeply involved in the Red Lion case since the start of the litigation. Wayne Phillips, a Democratic National Committee staffer described the aftermath of the ruling, explaining that "Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts”.

End of Fairness Doctrine

In 1984, the Supreme Court decided that the scarcity rationale underlying the doctrine did not apply to expanding communications technologies, and that the doctrine was limiting the breadth of public debate (FCC v. League of Women Voters, 468 U.S. 364). The Court's majority decision by William J. Brennan, Jr. noted concerns that the Fairness Doctrine was "chilling speech," and added that the Supreme Court would be "forced" to revisit the constitutionality of the doctrine if it did have "the net effect of reducing rather than enhancing speech."

Under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's 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, Appeals Court Judges Robert Bork and Antonin Scalia 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, the courts 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. The FCC stated, "the intrusion by government into the content of programming occasioned by the enforcement of restricts the journalistic freedom of broadcasters ... 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 (S. 742, 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.

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, District of Columbia 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.

Controversy over claims of revival

There is an ongoing controversy about the possibility of reviving the Fairness Doctrine.

Conservative writer Bryon York claimed that Media Matters for America announced a campaign to reimpose the Fairness Doctrine as early as October 2004. Senator Richard Durbin has been quoted as saying "“It’s time to reinstitute the Fairness Doctrine.” And a YouTube clip shows Senator John Kerry apparently responding to a question with "Well, I think the Fairness Doctrine ought to be there, and also I think the Equal Time doctrine ought to come back. One of the most profound changes in the balance of the media is when the conservatives got rid of the equal time requirements. And the result is they've been able to squeeze down and squeeze out opinion and opposing views..." . The clip is then cut off and the question and other circumstances are not identified.

In contrast, Alex Koppelman of Salon.com said that "those who could realistically be the catalysts for such legislation don't seem to have much interest." The spokesman for Senate majority leader Harry Reid stated for the record:"I'm not aware that there's any kind of debate about the Fairness Doctrine ... is not contemplating anything like that. It truly is not on his radar screen." A search of the Media Matters web shows little use of term "Fairness Doctrine". Likewise, it is not found in a search of the Senate website of either Richard Durbin or John Kerry.

Legislation

In the 109th Congress, Representative Maurice Hinchley introduce legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act" or MORA, had 16 co-sponsors incongress.

In the 110th Congress, no legislation to restore the Fairness Doctrine has been introduced. Senator Norm Coleman (R-MN) 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".

References

1. Clark, Drew (20 October 2004) "How Fair Is Sinclair's Doctrine?" Slate
2. Donald P. Mullally, "The Fairness Doctrine: Benefits and Costs", The Public Opinion Quarterly, Vol. 33, No. 4 (Winter, 0-450 B.C.E.), p. 577
3. Joyce, Tom. “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 (PA), May 6, 2003
4. Red Lion Broadcasting Co. v. FCC 395 U.S. 367 (1969)
5. 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.
6. Fred Friendly. The Good Guys, The Bad Guys, and the First Amendment. Random House. 1976, pg 39
7. Fred Friendly. The Good Guys, The Bad Guys, and the First Amendment. Random House. 1976. pg 42
8. Fred Friendly. The Good Guys, The Bad Guys, and the First Amendment. Random House. 1976. pg 43
9. Text of decision, FindLaw website
10. Fairness Doctrine
11. York, Byron (2007-04-13). "What's Next for the Activists Who Called for Don Imus's Head?". National Review Online. Retrieved 2007-07-10.
12. ^ Koppelman, Alex (2007-04-16). "Is Rush Limbaugh next?". Salon.com. Retrieved 2007-05-04.
13. "Media Ownership Reform Act of 2005". {{cite web}}: Missing or empty |url= (help); Text "accessdate 2007-09-12" ignored (help)
14. Frommer, Frederic J. "Democrats Block Amendment to Prevent Fairness Doctrine". Associated Press. {{cite web}}: Text "accessdate 2007-08-10" ignored (help)

External links

• Fairness Doctrine from the Museum of Broadcast Communications
• Fairness Doctrine from NOW on PBS
• The Media Cornucopia from The City Journal
• Writer and Media Analyst Alex Horvath posts his thoughts and offers platform for exchange about The Fairness Doctrine.
• Fixing the Fairness Doctrine - A modest technology proposal Writer and Blogger Mike Wallach offers a topical commentary on the Fairness Doctrine.

See also

• Equal-time rule
• Free speech
• Prior restraint

• Censorship of broadcasting
• Legal history of the United States
• United States communications regulation