The fairness doctrine of the United States Federal Communications Commission (FCC), introduced in 1949, was a policy that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that fairly reflected differing viewpoints. In 1987, the FCC abolished the fairness doctrine, prompting some to urge its reintroduction through either Commission policy or congressional legislation.Clark, Drew (October 20, 2004). "How Fair Is Sinclair's Doctrine?". Slate. The FCC removed the rule that implemented the policy from the Federal Register in August 2011.
The fairness doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. 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 demise of this FCC rule has been cited as a contributing factor in the rising level of political polarization in the United States.E. Patterson, Thomas (2013). "The News Media: Communicating Political Images". We the People. 10th ed. McGraw-Hill Education: 336.
While the original purpose of the doctrine was to ensure that viewers were exposed to a diversity of viewpoints, it was used by the Kennedy, Johnson, and Nixon administrations to combat political opponents operating on talk radio and television. In Red Lion Broadcasting Co. v. FCC (1969), the United States Supreme Court upheld the FCC's general right to enforce the fairness doctrine where channels were limited; however, the court did not rule that the FCC was obliged to do so.Red Lion Broadcasting Co. v. FCC, decided June 8, 1969, also at (Excerpt from majority opinion, III A; Senate report cited in footnote 26). Justice William O. Douglas did not participate in the decision, but there were no concurring or dissenting opinions. 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. The fairness doctrine is not the same as the equal-time rule, which is still in place. The fairness doctrine deals with discussion of controversial issues, while the equal-time rule deals only with political candidates.
Origins
In 1938, Lawrence J. Flynn, a former Yankee Network employee, challenged the license of John Shepard III's WAAB in Boston, and lodged a complaint about WNAC (Boston). Flynn asserted that these stations were being used to air one-sided political viewpoints and broadcast attacks, including editorials, against local and federal politicians whom Shepard opposed. The FCC requested that Shepard provide details about these programs. To appease the commission, the Yankee Network agreed to drop the editorials. Flynn created a company called Mayflower Broadcasting and tried to get the FCC to award him WAAB's license. The FCC refused. In 1941, the commission made a ruling that came to be known as the Mayflower Doctrine, which declared that radio stations, due to their public interest obligations, must remain neutral in matters of news and politics, and they were not allowed to give editorial support to any particular political position or candidate. In 1949, the FCC's Editorializing Report repealed the Mayflower doctrine,Report of the Commission in the Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246 . which since 1941 had forbidden on-air editorializing. This laid the foundation for the fairness doctrine, by reaffirming the FCC's holding that licensees must not use their stations "for the private interest, whims or caprices [of licensees], but in a manner which will serve the community generally."Report ... Licensees, 13 F.C.C. 1246, 1248-9.
The FCC Report established two forms of regulation on broadcasters: to provide adequate coverage of public issues, and to ensure that coverage fairly represented opposing views.Jung, D.L. (1996), The Federal Communications Commission, the Broadcast Industry, and the Fairness Doctrine 1981–1987, New York: University Press of America, Inc. The second rule required broadcasters to provide reply time to issue-oriented citizens. Broadcasters could therefore trigger fairness doctrine complaints without editorializing. The commission required neither of the fairness doctrine's obligations before 1949. Until then broadcasters had to satisfy only general "public interest" standards of the Communications Act.Donahue, H. (1988). The Battle to Control Broadcast News. Cambridge, Mass.: MIT Press The doctrine remained a matter of general policy and was applied on a case-by-case basis until 1967,Memorandum Opinion and Order, 8 F.C.C.2d 721 (August 7, 1967), which codified the personal attack doctrine and implemented provisions with respect to political editorials from Times-Mirror Broadcasting Co., 40 F.C.C. 531, 538 (1962); codified as 32 Fed. Reg. 10303 at para. 4 (1967). This was amended twice in Memorandum Opinion and Order, 9 F.C.C.2d 539 (1967) and Memorandum Opinion and Order, 12 F.C.C.2d 250 (1968). when certain provisions of the doctrine were incorporated into FCC regulations. In 1969, the United States courts of appeals, in an opinion written by Warren Burger, directed the FCC to revoke Lamar Broadcasting's license for television station WLBT due to the station's segregationist politics and ongoing censorship of NBC network news coverage of the U.S. civil rights movement."The FCC & Censorship: Legendary Media Activist Everett Parker on the Revocation of WLBT's TV License in the 1960s for Shutting Out Voices of the Civil Rights Movement", Democracy Now!, March 6, 2008.
Application of the doctrine by the FCC In 1974, the Federal Communications Commission stated that the Congress had delegated the power to mandate a system of "access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue" but that it had not yet exercised that power because licensed broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It warned:
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, 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.Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C. Cir. 1986) . Retrieved August 17, 2008. 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.Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987) , February 10, 1987, Retrieved August 17, 2008.
Decisions of the United States Supreme Court In Red Lion Broadcasting Co. v. FCC, , 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 to the U.S. Constitution. 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. Cook sued arguing that the fairness doctrine entitled him to free air time to respond to the personal attacks.Tom Joyce: "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 (Pennsylvania), May 6, 2003. Retrieved August 17, 2008. Although similar laws are 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 because of the limited public airwaves at the time. Writing for the court, Justice Byron White declared:
The court did not see how the fairness doctrine went against the First Amendment's goal of creating an informed public. The fairness doctrine required that those who were talked about be given chance to respond to the statements made by broadcasters. The court believed that this helped create a more informed public. Justice White explained that, without this doctrine, station owners would only have people on the air who agreed with their opinions. Throughout his opinion, Justice White argued that radio frequencies, and by extension, television stations, should be used to educate listeners, or viewers, about controversial issues in a way that is fair and non-biased so that they can create their own opinions. In 1969, the court "ruled unanimously that the Fairness Doctrine was not only constitutional, but essential to democracy. The public airwaves should not just express the opinions of those who can pay for air time; they must allow the electorate to be informed about all sides of controversial issues." The court also warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered. Justice William O. Douglas did not participate, but later wrote that he would have dissented because the Constitutional guarantee of Freedom of the press was absolute.
In the case of Miami Herald Publishing Co. v. Tornillo, , 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", which differs from Red Lion v. FCC in that it applies to a newspaper. Unlike a broadcaster, a newspaper 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, as ruled in FCC v. League of Women Voters of California, . 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:
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:
Use as a political weapon
The fairness doctrine has been used by various administrations to harass political opponents on the radio. Bill Ruder, Assistant Secretary of Commerce in the Kennedy administration, acknowledged that "Our massive strategy [in the early 1960s] was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."Friendly (1976, p. 39). Former Kennedy FCC staffer Martin Firestone wrote a memo to the Democratic National Committee on strategies to combat small rural radio stations unfriendly to Democrats: