Fairness Doctrine

fairness doctrine hannity

The Fairness Doctrine was a policy of the FCC, 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 (i.e. air contrasting views regarding those matters).

The FCC decided to eliminate the Doctrine in 1987, and in 2011, formally removed the language that implemented it. 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 Fairness Doctrine should not be confused with the ‘Equal Time’ rule, which deals only with political candidates.)

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 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. Before the report was issued broadcasters had to satisfy only general ‘public interest’ standards of the ‘Communications Act.’

In 1974, 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. 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.

In ‘Red Lion Broadcasting Co. v. FCC’ (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. 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 stated 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: ‘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’ (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, 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: ‘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.’

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 of reducing rather than enhancing’ speech, we would then be forced to reconsider the constitutional basis of our decision in that case.’

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 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 1989. The FCC argued that because of the many media voices in the marketplace, the doctrine be deemed unconstitutional, stating that: ‘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.’ At the 4-0 vote, Chairman Patrick said, ‘We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception.’

The FCC vote was opposed by members of Congress who accused them of attempting to ‘flout the will of Congress’ and called the decision, ‘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 2009 that his work toward revoking the Fairness Doctrine under the Reagan Administration had been a matter of principle (his belief that the Doctrine impinged upon the First Amendment), 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: ‘The only thing that really protects you from the savageness of the three networks—every day they would savage Ronald Reagan—is the Fairness Doctrine, and Fowler is proposing to repeal it!’ Instead, Reagan supported the effort and later vetoed the Democratic-controlled Congress’s effort to make the doctrine law.

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 (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.

In 2005, U.S. Representative Louise Slaughter (D-NY) and 23 co-sponsors introduced the ‘Fairness and Accountability in Broadcasting Act.’ 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 2007, Senator Richard Durbin (D-IL) said, “It’s time to reinstitute the Fairness Doctrine,’ an opinion shared by his Democratic colleague, Senator John Kerry of Massachusetts. However, according to Marin Cogan of ‘The New Republic’ in late 2008: ‘Senator Durbin’s press secretary says that Durbin has ‘no plans, no language, no nothing. He was asked in a hallway last year, he gave his personal view’—that the American people were served well under the doctrine—’and it’s all been blown out of proportion.’

In 2008, U.S. Representative Nancy Pelosi 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.’ Later that year, Senator Jeff Bingaman (D-NM) told a conservative talk radio host in Albuquerque: ‘I would want this station and all stations to have to present a balanced perspective and different points of view. 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.’

In 2009, Senator Tom Harkin (D-IO) 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 an appearance on the ‘Mario Solis Marich’ radio show, Clinton said: ‘Well, you either ought to have the Fairness Doctrine or we ought to have more balance on the other side, because essentially there’s always been a lot of big money to support the right wing talk shows.’ Clinton cited the ‘blatant drumbeat’ against the stimulus program from conservative talk radio, suggesting that it doesn’t reflect economic reality.

In 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. 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.

In June 2008, Barack Obama’s press secretary wrote that Obama (then a Democratic U.S. Senator from Illinois and candidate for President): ‘Does not support reimposing the Fairness Doctrine on broadcasters … [and] 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 Sen. Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets.’

In 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.

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