The doctrine that imposes affirmative responsibilities on a broadcaster to provide coverage of issues of public importance that is adequate and fairly reflects differing viewpoints. In fulfilling its fairness doctrine obligations, a broadcaster must provide free time for the presentation of opposing views if a paid sponsor is unavailable and must initiate programming on public issues if no one else seeks to do so.
Between the 1940s and 1980s, federal regulators attempted to guarantee that the broadcasting industry would act fairly. The controversial policy adopted to further that attempt was called the fairness doctrine. The fairness doctrine was not a statute, but a set of rules and regulations that imposed controls on the content of the broadcasting media. It viewed radio and television as not merely industries but servants of the public interest. Enforced by the federal communications commission (FCC), the fairness doctrine had two main tenets: broadcasters had to cover controversial issues, and they had to carry contrasting viewpoints on such issues. Opponents of the doctrine, chiefly the media themselves, called it unconstitutional. Although it survived court challenges, the fairness doctrine was abolished in 1987 by deregulators in the FCC who deemed it outdated, misguided, and ultimately unfair. Its demise left responsibility for fairness entirely to the media.
The fairness doctrine grew out of early regulation of the radio industry. As the medium of radio expanded in the 1920s, its chaotic growth caused problems: for one, broadcasters often overlapped on each other's radio frequencies. In 1927, Congress imposed regulation with its passage of the Radio Act (47 U.S.C.A. § 81 et seq.). This landmark law established the Federal Radio Commission (FRC), reestablished in 1934 as the Federal Communications Commission. Empowered to allocate frequencies among broadcasters, the FRC essentially decided who could broadcast, and its mandate to do so contained the seeds of the fairness doctrine. The commission was not only to divvy up the limited number of bands on the radio dial; Congress said it was to do so according to public "convenience, interest, or necessity. "Radio was seen as a kind of public trust: individual stations had to meet public expectations in return for access to the nation's airwaves.
In 1949, the first clear definition of the fairness doctrine emerged. The FCC said, in its Report on Editorializing, "[T]he public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies … to all discussion of issues of importance to the public." The doctrine had two parts: it required broadcasters (1) to cover vital controversial issues in the community and (2) to provide a reasonable opportunity for the presentation of contrasting viewpoints. In time, additional rules were added. The so-called personal attack rule required broadcasters to allow opportunity for rebuttal to personal attacks made during the discussion of controversial issues. The "political editorializing" rule held that broadcasters who endorsed a candidate for political office had to give the candidate's opponent a reasonable opportunity to respond.
Enforcement was controversial. Complaints alleging violations of the fairness doctrine were to be filed with the FCC by individuals and organizations, such as political parties and unions. Upon review of the complaint, the FCC could take punitive action that included refusing to renew broadcasting licenses. Not surprisingly, radio and TV station owners resented this regulatory power. They grumbled that the print media never had to bear such burdens. The fairness doctrine, they argued, infringed upon their first amendment rights. By the late 1960s, a First Amendment challenge reached the U.S. Supreme Court, in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969). The Court upheld the constitutionality of the doctrine in a decision that only added to the controversy. The print and broadcast media were inherently different, it ruled. In the broadcast media, the Court said, "it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here."
Although the fairness doctrine remained in effect for almost two more decades following Red Lion, the 1980s saw its abolishment. Anti-regulatory fervor in the administration of President ronald reagan brought about its end. The administration, which staffed the FCC with its appointees, favored little or no restrictions on the broadcast industry. In its 1985 Fairness Report (102 F.C.C.2d 145), the FCC announced that the doctrine hurt the public interest and violated the First Amendment. Moreover, technology had changed: with the advent of multiple channels on cable television, no longer could broadcasting be seen as a limited resource. Two years later, in August 1987, the commission abolished the doctrine by a 4–0 vote, intending to extend to radio and television the same First Amendment protections guaranteed to the print media. Congress had tried to stop the FCC from killing the fairness doctrine. Two months earlier, it had sent President Reagan the Fairness in Broadcasting Act of 1987 (S. 742, 100th Cong., 1st Sess. ), which would have codified the doctrine in federal law. The president vetoed it.
President Reagan's veto of the 1987 congressional bill to establish the fairness doctrine as law did not end the controversy, however. Even into the mid-1990s, proponents continued to call for its reinstatement.
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Harowitz, Linda. 1990. "Laying the Fairness Doctrine to Rest: Was the Doctrine's Elimination Really Fair?" George Washington Law Review (June).
Hazlett, Thomas W., and David W. Sosa. 1997."Was the Fairness Doctrine a 'Chilling Effect'? Evidence from the Postderegulation Radio Market." Journal of Legal Studies 26 (January): 279–301.
Leweke, Robert W. 2001. "Rules Without a Home: FCC Enforcement of the Personal Attack and Political Editorial Rules." Communication Law and Policy 6 (autumn): 557–76.
Born out of a progression of decisions by the Federal Communications Commission (FCC) and then codified by Congress in 1959, the fairness doctrine requires a broadcasting license holder "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Although the doctrine was upheld against a first amendment challenge in red lion broadcasting company v. fcc (1969), it has been perceived increasingly as an intrusive exception to the First Amendment, with diminishing justification.
The doctrine, applicable to radio and television licensees and to some cable operators, requires a licensee that presents a controversial issue to provide a reasonable amount of time for contrasting viewpoints. A less frequently litigated aspect of the doctrine requires affirmative coverage of issues important to the public. Finally, the doctrine assures persons who are disparaged on the air-waves a limited right to respond.
The doctrine reflects a distinction in the way Congress and the courts have conceived of newspapers, on the one hand, and broadcasters on the other. Thus, in miami herald v. tornillo (1974) the Supreme Court held unconstitutional on First Amendment grounds a Florida statute that required a newspaper to grant a right of reply to persons attacked in its columns. The Court did not distinguish Red Lion but ignored it.
Recently a campaign to narrow, if not eliminate, the fairness doctrine has gained momentum. When the fairness doctrine was in full sway, its justification was a supposed scarcity of the channels available for transmission of broadcast signals. Those who wished to communicate by the printed word were not curtailed by government action or the rationing of resources. On the other hand, the number of channels for radio and television transmission was demonstrably limited. Cable television and other new technologies have undermined the "scarcity" justification for regulation by providing abundant new channels.
Some have argued that the spectrum of broadcasting channels is a public resource, and thus that the federal government can insist that a private user of that resource give voice to many speakers. In another perspective, emphasis on the right of the licensee to be an unencumbered editor is misplaced. Expressing this view, in Red Lion, the Court said that "it is the right of the viewers and listeners, not the right of broadcasters, which is paramount." (See listeners ' rights.)
Recent commentary has proposed quite a different solution to the "fairness" issue: setting aside segments of broadcast time, or even whole channels, for public access. Owners of broadcasting stations would have no editorial control over these "soapboxes of the air." Broadcasters generally consider the fairness doctrine a badge of second-class citizenship in the ranks of the press. The FCC, in the early 1980s, confined the fairness doctrine's scope and considered its repeal. As an interim measure the FCC announced that asserted violations would not be adjudicated individually, but would be considered when a broadcaster sought renewal of a license. Still, despite these limits, the doctrine continues to influence the culture of television. Producers of national and local television news programs take great care to present at least two sides of important controversial issues.
Monroe E. Price
Bollinger, Lee 1976 Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media. University of Michigan Law Review 75:1–42.