Issue Report: Fairness Doctrine

Should the Fairness Doctrine in the United States be reinstated?

Until twenty years ago broadcasters in the USA had by law to follow the federal government’s “Fairness Doctrine”. This rule, formally introduced in 1949, required radio and television stations to give “ample play to the free and fair competition of opposing views”, so that listeners and viewers received a range of opinions and individual stations were not able to promote particular viewpoints to the exclusion of all others. The doctrine was also supported by Congress in legislation, although there is argument over whether this required the Federal Communications Commission (FCC) to regulate broadcasters in this way, or simply allowed them to do so if they judged it necessary. A 1969 Supreme Court case found that the Fairness Doctrine did not infringe the constitutional freedom of speech. In 1987 the Reagan Administration’s FCC judged that the Fairness Doctrine was an outdated and unnecessary interference in the broadcasting business and it was repealed. Congress made an attempt to reimpose it but President Reagan vetoed this and the doctrine has never been brought back since. Since the Fairness Doctrine was removed in 1987 talk radio has become much more prominent, bringing a brash and lively style of political debate into many American homes (and cars). Conservative viewpoints dominate their agenda, and hosts such as Rush Limbaugh make no attempt to hide their own political opinions or to provide a platform for views which disagree with their own. Such stations are now seen as hugely politically influential, with loyal audiences which they can mobilise to lobby, vote and protest on key issues. This was particularly seen in the collapse of immigration reform in 2007, when some Republicans as well as Democrats began to call for talk radio to be reined back, perhaps through the reinstatement of the Fairness Doctrine. In the 2008 US elections, the Fairness Doctrine returned as an issue, with political figures such as House Speaker Nancy Pelosi suggesting that she favored reconstituting the Fairness Doctrine, and with Democratic victories raising the chances that such legislation could be passed.

First Amendment: Does the Fairness Doctrine uphold Free Speech in First Amendment?

Fairness Doctrine rightly regulates free speech on public airwaves

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

Fairness Doctrine helps advance free speech values

Supreme Court Justice Byron White wrote: “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.”

In a Washington Post column (1/31/94), the Media Access Project (MAP), a telecommunications law firm that supports the Fairness Doctrine, addressed the First Amendment issue: “The Supreme Court unanimously found [the Fairness Doctrine] advances First Amendment values. It safeguards the public’s right to be informed on issues affecting our democracy, while also balancing broadcasters’ rights to the broadest possible editorial discretion.”

Fairness Doctrine does not censor; only ensures balance

Jeff Cohen. "The "Hush Rush" Hoax: Limbaugh on the Fairness Doctrine". November/December 1994

“The Fairness Doctrine isn’t going to take Rush Limbaugh off the air,” remarked Larry King (The Rush Limbaugh Story, Paul Colford). “Be fair: What’s wrong with that? If I were Rush, I would want a liberal host following my show.”

Free speech requires boundaries, such as Fairness Doctrine

"TV View; Why the Fairness Doctrine is Still Important". New York Times. 15 Sept. 1985

“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.”

Fairness Doctrine harms instead of protecting free speech

Adam Thierer. "Why the Fairness Doctrine is Anything But Fair". Heritage Foundation. 29 Oct. 1993

“The result of a reinstituted fairness doctrine would not be fair at all. In practice, much controversial speech heard today would be stifled as the threat of random investigations and warnings discouraged broadcasters from airing what FCC bureaucrats might refer to as ‘unbalanced’ views.”

John McCain said in 2007, “had a chilling affect on free speech, and it is hard to imagine that the American people would support reinstating a policy where the federal government would be required to police the airwaves to ensure differing viewpoints are offered.”[1]Governor Mario Cuomo who also opposed the Doctrine pointing out – “Of course there are limits to liberty and lines to be drawn … But curtailing First Amendment rights should be allowed only when the need is so clear and convincing as to overwhelm with reasonableness the arguments in opposition. And the case for government intrusion, for the Fairness Doctrine, is certainly less than compelling at its very best.”[2]

Public can judge extreme viewpoints: Fairness Doctrine unnecessary

Democratic House Appropriations Committee Chairman David Obey of Wisconsin – “We ought to let right-wing talk radio go on as they do now. Rush and Sean (Hannity) are just about as important in the scheme of things as Paris Hilton, and I would hate to see them gain an ounce of credibility by being forced by a government agency or anybody else to moderate their views enough that they might become modestly influential or respected.”[3]

Fairness Doctrine can benefit outrageous perspectives

Barbara Comstock & Lanny J. Davis. "What’s Fair Is Fair. And fair is not the 'Fairness Doctrine.'". National Review Online. 20 Oct. 2008

“The doctrine also resulted in lawsuits such as one in 1978 when NBC aired a show on the Holocaust and was sued by a group demanding air time to argue that the Holocaust was a myth. The network had to defend itself for over three years.”

Fairness: Is it possible to determine "fairness"?

Fairness Doctrine is more a code of conduct than mandate

"TV View; Why the Fairness Doctrine is Still Important". New York Times. 15 Sept. 1985

“The Fairness Doctrine always has been more symbolic than real, more a standard to be strived for than an absolute command. The F.C.C. has not been punitive or capricious in enforcing it, and although broadcasters say the Fairness Doctrine exerts a chilling effect, preventing them from examining controversial issues, the chill seems to be mostly in their minds. The F.C.C. seldom penalizes anyone.”

Fairness Doctrine does not require equal time for viewpoints

Steve Rendall. "How We Lost it, and Why We Need it Back". Common Dreams. 12 Feb. 2005

“There are many misconceptions about the Fairness Doctrine. For instance, it did not require that each program be internally balanced, nor did it mandate equal time for opposing points of view. And it didn’t require that the balance of a station’s program lineup be anything like 50/50.”

Fariness Doctrine applies only to controversial broadcastings

"TV View; Why the Fairness Doctrine is Still Important". New York Times. 15 Sept. 1985

“broadcasters are not required to extend the reasonable opportunity for inconsequential issues; they are required to extend it only for controversial issues. It’s hard to understand how this impedes broadcast journalism. In fact, the Fairness Doctrine is predicated on what seem to be the most elementary rules of journalism.”

Free speech without Fairness Doctrine can harm policy-making

"Broadcasting, reintroducing the Fairness Doctrine". Debatabase. 27 Aug. 2008

“Unbalanced broadcasting also affects policymaking, in ways which are bad for our country. Talk radio hosts can fire up their audiences over particular issues, successfully urging them to place so much pressure on their elected representatives that they are able to impose their agenda at state and federal level. This attacks the representative principle – that elected officials must use their best judgement to make decisions for the good of all, rather than bending to the uninformed and perhaps temporary will of mass opinion. Such campaigns are particularly dangerous on issues such as trade and immigration where the populist argument seems simple, easily summed up in appealing nativist slogans. Often the alternative case is more complex, requiring a greater level of economic and political education and a willingness to study dispassionately a range of evidence. Following the collapse in 2007 of attempts at immigration reform, even Tent Lott, a leading Republican Senator, has lamented that talk radio is running the country, having power without responsibility.”

Fairness Doctrine falsely presumes "fairness" can be determined

Adam Thierer. "Why the Fairness Doctrine is Anything But Fair". Heritage Foundation. 29 Oct. 1993

“Faulty Premise #2: “Fairness” or “fair access” is best determined by FCC authorities[…]Reality: FCC bureaucrats can neither determine what is “fair” nor enforce it[…]The second fallacy upon which the doctrine rests concerns the idea of “fairness” itself. As defined by proponents of the doctrine, “fairness” apparently means that each broadcaster must offer air time to anyone with a controversial view. Since it is impossible for every station to be monitored constantly, FCC regulators would arbitrarily determine what “fair access” is, and who is entitled to it, through selective enforcement.”

"Broadcasting, reintroducing the Fairness Doctrine". Debatabase. 27 Aug. 2008

“As for complaints about the tone of talk-radio shows, what some people label “intolerant and unpleasant”, others may see as vigorous and fearless. In any case, many liberals are horribly rude about President Bush, or show disrespect for great American institutions such as the stars and stripes flag and the U.S. military.”

Fairness Doctrine opens the door to government abuse

Adam Thierer. "Why the Fairness Doctrine is Anything But Fair". Heritage Foundation. 29 Oct. 1993

“FCC regulators would arbitrarily determine what “fair access” is, and who is entitled to it, through selective enforcement. This, of course, puts immense power into the hands of federal regulators. And in fact, the fairness doctrine was used by both the Kennedy and Nixon Administrations to limit political opposition. Telecommunications scholar Thomas W. Hazlett notes that under the Nixon Administration, “License harassment of stations considered unfriendly to the Administration became a regular item on the agenda at White House policy meetings.” (Thomas W. Hazlett, “The Fairness Doctrine and the First Amendment,” The Public Interest, Summer 1989, p. 105.) As one former Kennedy Administration official, Bill Ruder, has said, “We had a massive strategy to use the fairness doctrine to challenge and harass the right-wing broadcasters, and hope the challenge would be so costly to them that they would be inhibited and decide it was too expensive to continue.” (Tony Snow, “Return of the Fairness Demon,” The Washington Times, September 5, 1993, p. B3.)”

Enforcing the Fairness Doctrine would be too expensive.

The Fairness Doctrine would be difficult to enforce, as it would require government officials oversee nearly every broadcasting network to ensure “fair and balanced” broadcasting. This would be expensive.

Balance: Is Fairness Doctrine necessary to restore balance?

Fairness Doctrine would counter conservative domination of radio

Steve Rendall. "How We Lost it, and Why We Need it Back". Common Dreams. 12 Feb. 2005

“Sinclair’s history of one-sided editorializing and right-wing water-carrying, which long preceded its Stolen Honor ploy (Extra!, 11–12/04), puts it in the company of political talk radio, where right-wing opinion is the rule, locally and nationally. Together, they are part of a growing trend that sees movement conservatives and Republican partisans using the publicly owned airwaves as a political megaphone—one that goes largely unanswered by any regular opposing perspective. It’s an imbalance that begs for a remedy.”

Fairness Doctrine protects against odious views gaining legitimacy

"TV View; Why the Fairness Doctrine is Still Important". New York Times. 15 Sept. 1985

“Microphones and cameras are beguiling. They confer identity and status on the people who use them. Those who believe themselves to be disenfranchised can find a home[…]In a way, that’s what the dispute over the television coverage of terrorism is all about. Causes, no matter how odious, may be legitimatized by media exposure. Under the Fairness Doctrine, a radio or television station that advocates an odious cause may be held accountable if it does not present a countervailing view. In the absence of the Fairness Doctrine, there is no necessity for it to do so. Indeed, in the absence of any restriction, an odious cause may not only be heard; it may control the radio or television station itself.”

Balanced left/right broadcasting exist w/o Fairness Doctrine

Pete Winn. "Democratic Senator Tells Conservative Radio Station He’d Re-impose Fairness Doctrine--on Them". CNS News. 28. Oct. 2008

“[Jim Villanucci:] in this market, for instance, you’ve got KKOB. If you want liberal talk, you’ve got Air America in this market, you’ve got NPR, you’ve got satellite radio – there’s a lefty talk station and a rightie talk station. Do you think there are people who aren’t able to find a viewpoint that is in sync with what they believe?”

Fairness Doctrine advocates forget Media's liberal bias.

The Media, including all its various forms, is considered by many sources to have a liberal bias, with the vast majority of its workers voting Democrat. It is odd, therefore, for Democrats to complain about conservative radio, and call for the Fairness Doctrine as a solution.

Fairness Doctrine wrongly sees "two sides" to every issue

Barbara Comstock & Lanny J. Davis. "What’s Fair Is Fair. And fair is not the 'Fairness Doctrine.'". National Review Online. 20 Oct. 2008

“as for the idea of hearing from “both sides” of an issue — who assumes there are just two sides? If any two or three people could disagree as to how many sides of an issue exist — as we are sure we would — can you imagine government bureaucrats deciding first, how many sides of an issue there might be and second, how much “fair and balanced” speech each and every side would be allocated?”

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