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Fairness doctrine

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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 The doctrine has since been withdrawn by the FCC, and certain aspects of the doctrine have been questioned by courts.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."

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 commentators have asserted that various Democratic Party and Independent politicians have announced their support of legislation which would reverse the 1987 FCC decision to restore the Fairness Doctrine. Byron York claimed that the liberal group Media Matters for America announced a campaign to reimpose the Fairness Doctrine as early as October 2004,

In response, Alex Koppelman of Salon magazine suggested that "perhaps conservatives are projecting a little bit" and judged that "those who could realistically be the catalysts for such legislation don't seem to have much interest."

Senate Democrat Party Whip, Richard Durbin stated in June 2007, "“It’s time to reinstitute the Fairness Doctrine.”"GOP preps for talk radio confrontation" Senior Democrat Senator and 2004 Presidential candidate John Kerry has said, "I think the fairness doctrine ought to be there, and I also think equal time doctrine ought to come back." "Brian Lehrer show on WNYC"

The Center for American Progress issued a report titled "The Structural Imbalance of Political Talk Radio" . According to the report "out of 257 news/talk stations owned by the top five commercial station owners reveals that 91 percent of the total weekday talk radio programming is conservative, and 9 percent is progressive." The report suggests three steps to increase liberal radio voices in talk radio: restoring local and national caps on the ownership of commercial radio stations; ensuring greater local accountability over radio licensing; and require commercial owners who fail to abide by enforceable public interest obligations to pay a fee to support public broadcasting. However, the report does not endorse the Fairness Doctrine.


Legislation

No legislation to restore the Fairness Doctrine has been introduced in the 110th Congress.

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. Text of decision, FindLaw website
  7. Fairness Doctrine
  8. Hinckley, David (17 January 2007) "Liberals seek to restore Fairness on the air" New York Daily News
  9. 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.
  10. Koppelman, Alex (2007-04-16). "Is Rush Limbaugh next?". Salon.com. Retrieved 2007-05-04.
  11. "The Structural Imbalance of Political Talk Radio". Center for American Progress. {{cite web}}: Text "accessdate 2007-08-10" ignored (help)
  12. Frommer, Frederic J. "Democrats Block Amendment to Prevent Fairness Doctrine". Associated Press. {{cite web}}: Text "accessdate 2007-08-10" ignored (help)

External links

See also

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