I. Introduction

In 1949, the Federal Communications Commission instated the Fairness Doctrine, a policy that required any organization holding a broadcast license to present issues of public importance, and to do so in an equitable and balanced manner.[1] However, the doctrine’s origins go back to speeches by President Herbert Hoover and decisions by the Federal Radio Commission that date back to as early as 1929. As it had been presumed that radio airwaves needed to be regulated by the government to give them order due to limited space on the airwaves for broadcasting, the government felt that it needed to take action to ensure that listeners were given multiple viewpoints on controversial issues. One can see by the given definition that the fairness doctrine essentially had two elements. The first of these was the idea that broadcasters were required to devote at least some of their airtime to the discussion of controversial issues which were of interest to the public. The second element of the doctrine was that in regard to the controversial issues of public interest, broadcasters were obligated to air contrasting views.[2] After reflecting on the legal and political history of the doctrine, a cost versus benefits analysis will be applied to determine whether or not the doctrine should be reinstated.

II. History

A. Early Application

During its early years, the FCC applied the doctrine on a case-by-case basis without pushing to have it officially molded into federal law. However, in 1967 aspects of the fairness doctrine were made a part of general FCC regulations.[3] One will notice when looking back at this time period that there are fewer cases than one would expect of the FCC demanding that a broadcaster modify their material to be in compliance with the fairness doctrine. There are two reasons for this. The first is summed up in the FCC’s statement that even though they had been granted the right to enforce the fairness doctrine, they were not necessarily required by law to do so. Later politicians would contest this, stating that under the general welfare clause of the Constitution the FCC was, in fact, required to enforce the fairness doctrine on any and all occasions. The second reason for this scarcity of cases comes in the FCC’s claim that the majority of broadcasters were already in compliance the doctrine, thus further regulation was not needed. However, the commission also stated that “…should future experience indicate that the doctrine [of voluntary compliance] is inadequate, either in its expectations or in its results, the Commission will have the opportunity — and the responsibility — for such further reassessment and action as would be mandated.”[4]

B. Red Lion Broadcasting Co. v. Federal Communications Commission

Even so, there were times when the FCC saw fit to implement the fairness doctrine, and this led to court cases which set policy-changing precedents. A key example is the case of Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367.[5] Red Lion Broadcasting Co. had broadcast a program which contained a personal attack on a journalist named Fred Cook. Specifically, Cook had published a book in 1964 entitled Goldwater: Extremist on the Right, and subsequently endured attacks by popular evangelist Billy James Hargis, whose Christian Crusade radio show was broadcast by Red Lion Broadcasting Co. According to the court case, the specific attacks were “that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a ‘book to smear and destroy Barry Goldwater.’”[6]

Cook sued the company, arguing that under the fairness doctrine he had the right to free air time during which he could respond to the attack. When Red Lion Broadcast Co. refused his request, the issue went to the FCC, which sided with Cook. Red Lion Broadcast Co. then appealed the FCC’s decision, which eventually went to the Supreme Court, who again unanimously sided with Cook. The court argued that in making the Red Lion Co. give Cook a chance for a rebuttal, it ultimately benefitted the listeners, whose rights were a higher priority than the rights of the company itself. In the decision, Justice Byron White wrote, “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.”[7] However, in the same decision the court wrote that if the fairness doctrine was ever found to be violating free speech, it should be reconsidered.

This decision set two important precedents, the first being that broadcast television stations and radio stations are completely protected by the First Amendment insofar as their choice of content, seen in the fact that the court made no attempt to silence the attacks made on Cook. Secondly, because the broadcasts were made over a government-regulated medium, the precedent was set that FCC had the right to regulate the broadcasts in order to preserve openness.

C. Miami Herald Publishing Company v. Tornillo

A second, rather different example of the fairness doctrine in action can be found in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241.[8] The decision here differed greatly from that in Red Lion Broadcast Co. v. Federal Communications Commission. The case centered on a Florida law which required newspapers to allow equal space to all political candidates. Specifically, the case concerned a political candidate who wished to respond to editorials critical of him which had been printed in the Miami Herald. He cited a Florida “right of reply” statute which granted a political candidate “a right to equal space to answer criticism and attacks on his record by a newspaper.” The statute further stated that it was “a misdemeanor for the newspaper to fail to comply.”

The Supreme Court sided unanimously with the Miami Herald, overturning both the Florida statute and the decision of the Florida Supreme Court, which had sided in favor of the politician, by declaring the statute a violation of the First Amendment. “Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply,” the court, under Chief Justice Warren Burger, wrote, “the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising…It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

The reason for the massive difference in this decision compared with the first was due to the difference of the medium in question. Newspapers have the most possible constitutional protection, as they are specifically protected by the First Amendment. The amendment specifically states, “Congress shall make no law…abridging the freedom of speech, or of the press.”[9] However, when the Constitution was written, not even the telegraph – much less radio stations – existed, and thus there was no provision for their control built into the document. After radio stations had existed for some time, it became clear that government control of the industry would be necessary, as simply allowing anyone to broadcast on any frequency would lead to chaos. In the introduction to Red Lion Broadcasting Co. v. Federal Communications Commission, the court summed up why this regulation was necessary, and why they believed that this naturally meant that the fairness doctrine applied. “The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicants in the public interest,” the court wrote, “and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine.”

Essentially, with radio stations the number of competitors was limited, and thus it was necessary to ensure that any and all views were presented to the public on a limited number of outlets. However, in the case of newspapers, not only were they specifically protected from regulation by the First Amendment, but there also was essentially an unlimited number of competitors, thus the government did not need to concern itself with ensuring that multiple viewpoints were heard.

D. Opposition and repeal

However it may have been wielded in the past, the fairness doctrine was not to last forever. The doctrine’s revocation did not occur in one fell swoop, but instead occurred over time under FCC Chairman Mark S. Fowler, who was appointed by Ronald Reagan.[10] Fowler was extremely opposed to the fairness doctrine – which had expanded to include television as well as radio broadcasts – from the start, as evidenced in a 1981 interview with Reason magazine.[11] “Why is it that we now single out one form – over-air television – and imbue it with specific social duties when we don’t do the same for film, for example?” Fowler said in the interview. “…Why don’t we have a ‘fairness doctrine’ for Time or the Washington Post, when we have one Washington Post in the city and seven television stations? We’ve got to look beyond the conventional wisdom that we must somehow regulate this box.” It was in this interview which Fowler said his famous quote, “The television is just another appliance – it’s a toaster with pictures.”

At the helm of the FCC, Fowler began to repeal the fairness doctrine in 1985 on the grounds that it was contrary to the public interest and violated free speech rights protected under the First Amendment. According to Fowler, the move was actually contrary to pressure put on him by multiple members of the Reagan administration. However, Reagan fully supported Fowler’s efforts. When the Democratic-controlled congress attempted to make the doctrine into law, the president responded with a veto. In 1987 the FCC abolished the fairness doctrine for good, and the decision was later upheld by a D.C. court in the case Syracuse Peace Council, et al. v. FCC and the United States of America, et al.[12] It is interesting to note that the FCC, which before was an organization attempting to implement the fairness doctrine and protect its right to do so, had become the very organization fighting to have the doctrine declared unconstitutional. In the decision, the court stated, “In sum, the fairness doctrine in operation disserves both the public’s right to diverse sources of information and the broadcaster’s interest in free expression. Its chilling effect thwarts its intended purpose, and it results in excessive and unnecessary government intervention into the editorial processes of broadcast journalists.”[13] This was the final blow to the fairness doctrine as a functioning legal institution.

III. A possible revival

A. Opinions

1. Support

Recently, many congressional Democrats including Richard Durbin, John Kerry, Nancy Pelosi, Jeff Bingaman, Anna Eshoo and Debbie Stabenow have shown their support for reviving the fairness doctrine. In 2008, House Speaker Nancy Pelosi made it clear that she opposed a bill meant to outlaw the doctrine, according to an article in Human Events. The author, John Gizzi, transcribed part of a conversation between himself and Pelosi, which read, “‘So I don’t see [the bill to outlaw the fairness doctrine] coming to the floor,’ Pelosi said.
‘Do you personally support revival of the fairness doctrine?’ I asked.
‘Yes,’ the speaker replied, without hesitation.”

Democrats base their support for the doctrine’s revival on the idea that broadcasters should be forced to present a balanced point of view that shows multiple opinions on any given issue. On Oct. 22, 2008, while being interviewed on a conservative talk show on 770 AM KKOB in Albuquerque, N.M., Senator Jeff Bingaman, a New Mexico Democrat, showed his explicit support for the revival of the doctrine. During the interview he said to the host, “All I’m saying is that for many, many years we operated under a Fairness Doctrine in this country, and I think the country was well-served. I think the public discussion was at a higher level and more intelligent in those days than it has become since.”[14]

Senator John Kerry has also shown his support for the reinstatement of the doctrine. He argues that without the doctrine, conservatives have been able to eliminate opposing views in public discourse. In a radio interview with WNYC’s The Brian Lehrer Show, Kerry said that the elimination of the fairness doctrine was one of the “most profound changes in the balance of the media.” He also stated that due to the absence of the doctrine, conservatives have been able to “squeeze down and squeeze out opinion of opposing views. I think it has been a very important transition in the imbalance of our public dialogue.”

2. Opposition

However, the other camp, made up primarily of libertarians and conservatives, also has arguments for why the doctrine should remain in the grave. In a January 28, 2009 speech given at the Four Seasons Hotel in Washington, D.C., FCC Commissioner Robert McDowell gave his argument against the doctrine’s reinstitution. After giving examples throughout 20th century history in which governments used the fairness doctrine for political advantage, he concluded, “History proves that abuses of power brought forth by the Doctrine are not partisan. Both right-leaning and left-leaning broadcasters have been attacked and intimidated. With that in mind, if the Doctrine is reimposed in any form, how do we know that it will not be used to silence political adversaries?”[15]

Despite the ongoing controversy over the document, the United States Senate recently passed a measure which bars the FCC from revisiting the fairness doctrine by a vote of 87-11.[16] The majority of senate Democrats actually voted in favor of the measure; however they also stated that it was unnecessary considering President Barack Obama’s stance in opposition to the doctrine, which will be examined shortly.

B. A de facto revival?

Despite this vote, there are worries in the anti-fairness doctrine camp that Democrats are attempting to pass laws that would act in the same way as the fairness doctrine, simply under a different name. Just before the vote banning the revisitation of the fairness doctrine, a separate measure proposed by Democratic Senator Dick Durbin was passed which restated existing laws which give the FCC the right to work to proper diversity in media ownership, and specifically stated the measure which would follow, which banned the FCC from revisiting the fairness doctrine, would not strip the commission of its authority to ensure that broadcasters meet their obligations to work for the public interest.[17]

Many conservatives feel that this is exactly the idea behind the Democratic Party’s intense support of fairness doctrine-like laws. In the fairness doctrine or anything like it, they would have a legal medium which they could use to attack popular conservative talk show host Rush Limbaugh, as well as his less popular conservative and libertarian counterparts Jason Lewis and Neal Boortz, respectively. The doctrine would force them to devote airtime to opposing views, rather than holding a program completely devoted to sharing their point of view with the public.
President Barack Obama has not taken an explicit stance on the fairness doctrine, and this is not surprising considering the political firestorm that this could stir up. With his current push for the federal government to take more and more control of the economy, a simultaneous push for increased government regulation of the airwaves could give conservatives enough ammo to launch an effective campaign of dubbing Obama an authoritarian-leaning Chief of State.

B. President Obama's unclear stance

That being said, it is easy to see why Obama has attempted to walk a thin line between the two camps, regardless of what his own beliefs may be. In 2008, then-Senator Obama’s press secretary Michael Ortiz sent an e-mail to the magazine Broadcast & Cable explaining Obama’s position. “Senator Obama does not support reimposing the fairness doctrine on broadcasters,” Ortiz stated in the e-mail. “He considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible. That is why Senator Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets.”[18] However, if such ideas as media-ownership caps and network neutrality were intensely put into practice, it would arguably be tantamount to a de facto fairness doctrine, simply without the official title.

As recently as February of 2009, the president’s stance on the fairness doctrine has not been entirely clear, without any consistent view coming from the White House. One view seems to support the idea that the president is opposed to the doctrine, as when White House spokesperson Ben LaBolt stated, “As the president stated during the campaign, he does not believe the fairness doctrine should be reinstated.”[19] However, the door has not been completely shut. Senior adviser David Axelrod, while being interviewed on Fox News Sunday, seemed to imply that the discussion is not over. “I’m going to leave that issue to Julius Genachowski, our new head of the FCC…and the president to discuss,” he said. “So I don’t have an answer for you now.”[20]

IV. Conclusion

A. Amount of modern media outlets renders doctrine unnecessary

The fairness doctrine was created in response to the problem that when radio and television were in their early years, they were extremely limited in the number of outlets which they could support. Each had a number of stations much smaller than anything which we, in the 21st century, are used to. Thus, the government felt that with such a small opportunity for widespread discourse, it needed to ensure that multiple viewpoints were fairly presented to the public, as shown in such cases as Red Lion Broadcast Co. v. FCC.

However, we now live in a different world. Not only have radio and television expanded drastically in recent years – there are over 14,000 AM-FM radio stations in the United States – but they both seem miniscule in comparison to the form of media that now dominates political discourse – the internet. The internet is now the largest source for broadcasting political views, and it is such a massive one that a practically unlimited number of different views can be published with essentially no hindrances. On top of its massive scale, it also is now available to a majority of the population, as technology costs have continued to plummet. Following the precedent set by Miami Herald Publishing Co. v. Tornillo, we must assume that because there is such a mass amount of media available to the public, the fairness doctrine is no longer necessary. The benefits of ensuring a multitude of viewpoints is not needed as much as it was in the early days of radio and television, and therefore no longer outweighs the cost of giving up control of the media to government censorship.

The scope of modern media allows for the classical liberal idea of letting a multitude of ideas compete, and then watching which one rises to the top. In the early days of the fairness doctrine this was not possible due to a limited number of outlets, but now the exact opposite is true. This leads to an obvious conclusion – the fairness doctrine is no longer necessary. A multitude of views are already naturally given due to the massive number of media outlets available. The amount of control that a government would gain by instating the fairness doctrine is not worth the price, as it would not be making as great of a positive impact as it made in the early days of radio and television. In fact, the doctrine now has a huge potential for negative impact, and this can be seen with a very basic examination of what the fairness doctrine is. At an elementary level, the fairness doctrine can be seen as a policy which ensures that media discourse is “fair.” But who decides what constitutes “fair?” The answer is the federal government. If there were a limited number of media outlets, this cost would be one worth paying, but with the expansion of media that the past decade has seen, the benefits no longer outweigh the costs. In fact, they are absolutely trampled by them.

B. Doctrine is incompatible with free society

Liberals may feel threatened by the success of conservative talk radio with such personalities as Rush Limbaugh, Jason Lewis and Neal Boortz. However, that is the reality – and the privilege – of living in a free society. Opinions will be voiced with which one does not agree. The benefit is that with a constitution which gives equal rights to every citizen, a liberal can get on the radio, pick up a microphone and begin to state his or her view to the public, who can choose to listen or to not listen. This policy takes the power away from the government and gives it to the people, who have the ability to listen to any and all opinions and decide for themselves what to believe. In this classical liberal model, the people are the device which roots out bad opinions and uplifts good ones.

It must be conceded that the assumption here is that the people are educated. In order to be an effective tool in the classical liberal concept of the best idea succeeding, the people must actually have the ability to push the best opinion to the top. Thus in the end, the responsibility is divided between the people and the government. The government, which runs the public education system, must shy away from educating its people towards a specific mindset, and instead train them to be critical thinkers who can look at an idea and logically judge it on the basis of its merits. However, the people also have the responsibility to educate themselves independent of what curriculum is handed to them, for in this way even a corrupt government would not be able to implement ideas that did not merit implementation. As Thomas Jefferson once said, “Educate and inform the whole mass of the people…They are the only sure reliance for the preservation of our liberty.”
  1. ^ Abrams, Jim. "Senate bars FCC from revisiting Fairness Doctrine." Associated Press 26 Feb. 2009.
  2. ^ Rendall, Steve. "The Fairness Doctrine - How We Lost It, and Why We Need It Back." Editorial. Fairness and Accuracy in Reporting 12 Feb. 2005. Www.fair.org.
  3. ^ Mullally, Donald P. "The Fairness Doctrine: Benefits and Costs." The Public Opinion Quarterly 44 (1969): 577-82. JSTOR. <http://www.jstor.org/stable/2747567>.
  4. ^ In the Matter of the handling of public issues under the Fairness Doctrine and the public interest standards of the Communications Act, 48 F.C.C.2d 1 (F.C.C. 1974)
  5. ^ RED LION BROADCASTING CO. v. FCC. No. 395 U.S. 367. U.S. Supreme Court. 9 June 1969.
  6. ^ Ibid
  7. ^ Ibid
  8. ^ Miami Herald Publishing Co. v. Tornillo. No. 418 U.S. 241. U.S. Supreme Court. 25 June 1974.
  9. ^ The U.S. Constitution Online. Ed. Steve Mount. <www.usconstitution.net>.
  10. ^ John T. Woolley and Gerhard Peters, The American Presidency Project[online]. Santa Barbara, CA: University of California (hosted), Gerhard Peters (database). Available from World Wide Web: http://www.presidency.ucsb.edu/ws/?pid=43527
  11. ^ "Reason Interview: Mark S. Fowler." Reason Nov. 1981. <http://findarticles.com/p/articles/mi_m1568/is_1998_Dec/ai_53260535/pg_4>.
  12. ^ SYRACUSE PEACE COUNCIL, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, et al. No. 276 U.S.App.D.C. 38; 867 F.2d 654; 57 USLW 2488. United States Court of Appeals for the District of Columbia Circuit. 10 Feb. 1989.
  13. ^ SYRACUSE PEACE COUNCIL, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, et al. No. 276 U.S.App.D.C. 38; 867 F.2d 654; 57 USLW 2488. United States Court of Appeals for the District of Columbia Circuit. 10 Feb. 1989.
  14. ^ Winn, Pete, and Matthew Cover. "Democratic Senator Tells Conservative Radio Station He’d Re-impose Fairness Doctrine--on Them." CNSnews.com. 22 Oct. 2008. Cybercast News Service. <www.cnsnews.com>
  15. ^ McDowell, Robert M. "Remarks of Commissioner Robert M. McDowell." Media Institute. The Four Seasons Hotel, Washington, D.C. 28 Jan. 2009. Www.fcc.gov. Federal Communications Commission. <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-288134A1.pdf>.
  16. ^ Abrams, Jim. "Senate bars FCC from revisiting Fairness Doctrine." Associated Press 26 Feb. 2009.
  17. ^ Abrams, Jim. "Senate bars FCC from revisiting Fairness Doctrine." Associated Press 26 Feb. 2009.
  18. ^ Eggerton, John. "Obama Does Not Support Return of Fairness Doctrine." Broadcasting & Cable. 25 June 2008. <http://www.broadcastingcable.com/article/114322-Obama_Does_Not_Support_Return_of_Fairness_Doctrine.php>.
  19. ^ Berger, Judson. "White House: Obama Opposes 'Fairness Doctrine' Revival." Foxnews.com. 18 Feb. 2009. Fox News. <http://www.foxnews.com/politics/first100days/2009/02/18/white-house-opposes-fairness-doctrine/>.
  20. ^ Berger, Judson. "White House: Obama Opposes 'Fairness Doctrine' Revival." Foxnews.com. 18 Feb. 2009. Fox News. <http://www.foxnews.com/politics/first100days/2009/02/18/white-house-opposes-fairness-doctrine/>.