The Fairness Doctrine, written in 1949, required radio and television broadcasters to present opposing viewpoints on public issues fairly and honestly.
The prevailing idea was that the highest and best use of the broadcast spectrum – a limited resource – was to inform the public, which meant broadcast license holders should present all sides of controversial issues fairly and equally. (Note: The Fairness Doctrine never applied to print journalists. They did not have to obtain a federal license to publish.)
If you visit FCC’s radio history documents, you can read the FCC’s June 8, 1949 report, Editorializing by Licensees. It’s an interesting, albeit challenging (do you have a law degree?) document about hearings held in Washington D.C. to determine if the FCC had the right to implement a Fairness Doctrine. Their conclusion:
“It is this right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public, to broadcast his own particular views on any matter, which is the foundation stone of the American system of broadcasting.”
Not everyone agreed with the FCC even then. What about the freedom of speech and freedom of the press guaranteed in the Constitution’s First Amendment? The Fairness Doctrine was legally challenged and heard before the Supreme Court in 1969.
In Red Lion Broadcasting Co. vs. FCC, 395 U.S. 367, the court upheld the FCC Fairness Doctrine. It determined that since the doctrine was trying to protect viewers’ and listeners’ rights and create a more informed public, it did not violate the Constitution’s First Amendment.
Why was the fairness doctrine revoked?
Fast-forward to the 1980s. Broadcasters want the same freedoms of the press as print publishers. With the advent of cable and satellite, scarcity of information is no longer the issue it was 40 years ago.
The FCC held more hearings to determine whether enforcing the Fairness Doctrine is constitutional. This time, it arrived at a unanimous and markedly different conclusion.
“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, resulting in excessive and unnecessary government intervention into the editorial processes of broadcast journalists.”
A significant change in tune.
A 1985 New York Times TV View article by journalist and author John Corry notes that a significant part of the FCC’s argument for revoking the Fairness Doctrine is the abundance of information available to the public. In 1949, there were 2,564 radio stations and 51 television stations. In 1985, there were 9,766 radio stations, 1,208 television stations, and 6,600 cable television systems – plus other forms of electronic communications.
Congress balks
While the FCC unanimously voted to revoke the Fairness Doctrine, Congress disagreed with the decision.
In June 1987, Congress tried to preempt the FCC decision by turning the Fairness Doctrine into federal law. According to an LA Times article, the legislation passed in both the House (302-102) and the Senate (59-31). Still, President Ronald Reagan vetoed it, stating, “This type of content-based regulation by the federal government is, in my judgment, antagonistic to the freedom of expression guaranteed by the First Amendment.”
Since 1987, several attempts have been made to reinstate the Fairness Doctrine or some version of it. However, no legislation has had enough bipartisan support to pass.
Is the Fairness Doctrine a Republican vs. Democrat issue? I ran across several stories on the internet that imply Republicans wanted the doctrine removed to pave the way for conservative talk radio and Fox News, while Democrats wanted it enforced to shut these same organizations down.
However, according to a 2011 Time magazine article titled “The Death of the Fairness Doctrine,” many, including President Obama, viewed the obsolete rule and ongoing debate as a poor use of Congress’s time.
Factcheck.org cites an email from the press secretary of Obama’s senate office saying, “[Obama] 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, and increasing minority ownership of broadcasting and print outlets.”
As recently as September 19, 2019, the House introduced legislation about the fairness doctrine – H.R. 4401 – 116th Congress: Restore the Fairness Doctrine Act of 2019. It died in Congress.
Was removing the fairness doctrine responsible for the rise of misinformation in the media?
In stories written about the fairness doctrine by USA Today and Snopes, both organizations seem to conclude that the answer is no. The reason comes down to the definition of a broadcaster.
According to a 2011 report by the Congressional Research Service, the fairness doctrine did not apply to cable, satellite, or internet providers because they are all services we pay for.
Additionally, it doesn’t sound like the FCC enforced the doctrine all that much anyhow, as New York Times journalist Corry notes in his 1985 story.
“The Fairness doctrine always has been more symbolic than real, more a standard to be strived for than an absolute command. The FCC has not been punitive or capricious in enforcing it.”
But Corry went on to say that, in his opinion, the fairness doctrine was essential to democracy, and eliminating it would be a mistake. His words from 36 years ago strike a chord today.
“Think about it. How about a station devoted solely to anti-Semitic gospel hours, say, or the glories of Weathermen extremists? Neither prospect is that far-fetched. Cruise the airwaves of America. In different parts of the country, at odd hours of the day or night, you may hear programs very much like that now. There is no compelling reason why they should be encouraged. The Fairness Doctrine may be only a standard, and it may not often be enforced. But it does recognize that while speech may be free, it may not always be unbridled. Enlightened public discourse demands a sense of boundaries. Mere possession of a radio or television station does not mean the owner has a sense of boundaries; it means only that he has sufficient money to buy the station.”
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