It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee. It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.
— U.S. Supreme Court, Red Lion Broadcasting Co. v. FCC, 1969.
A decade later the United States Supreme Court upheld the doctrine’s constitutionality in Red Lion Broadcasting Co. v. FCC (1969), foreshadowing a decade in which the FCC would view the Fairness Doctrine as a guiding principle, calling it “the single most important requirement of operation in the public interest—the sine qua non for grant of a renewal of license” (FCC Fairness Report, 1974).
How it worked
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.
Nor, as Rush Limbaugh has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talkshow hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talk shows. Indeed, the talk show format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talk show schedules, even in liberal cities, but none was ever muzzled (The Way Things Aren’t, Rendall et al., 1995). The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views.
In answer to charges, put forward in the Red Lion case, that the doctrine violated broadcasters’ First Amendment free speech rights because the government was exerting editorial control, 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.”
Indeed, when it was in place, citizen groups used the Fairness Doctrine as a tool to expand speech and debate. For instance, it prevented stations from allowing only one side to be heard on ballot measures. Over the years, it had been supported by grassroots groups across the political spectrum, including the ACLU, National Rifle Association and the right-wing Accuracy In Media.
Typically, when an individual or citizens group complained to a station about imbalance, the station would set aside time for an on-air response for the omitted perspective: “Reasonable opportunity for presentation of opposing points of view,” was the relevant phrase. If a station disagreed with the complaint, feeling that an adequate range of views had already been presented, the decision would be appealed to the FCC for a judgment.
According to Andrew Jay Schwartzman, president of MAP, scheduling response time was based on time of day, frequency and duration of the original perspective. “If one view received a lot of coverage in primetime,” Schwartzman told Extra!, “then at least some response time would have to be in primetime. Likewise if one side received many short spots or really long spots.” But the remedy did not amount to equal time; the ratio of airtime between the original perspective and the response “could be as much as five to one,” said Schwartzman.
As a guarantor of balance and inclusion, the Fairness Doctrine was no panacea. It was somewhat vague, and depended on the vigilance of listeners and viewers to notice imbalance. But its value, beyond the occasional remedies it provided, was in its codification of the principle that broadcasters had a responsibility to present a range of views on controversial issues.
The doctrine’s demise
From the 1920s through the ’70s, the history of the Fairness Doctrine paints a picture of public servants wrestling with how to maintain some public interest standards in the operation of publicly owned—but corporate-dominated—airwaves. Things were about to change.
The 1980s brought the Reagan Revolution, with its army of anti-regulatory extremists; not least among these was Reagan’s new FCC chair, Mark S. Fowler. Formerly a broadcast industry lawyer, Fowler earned his reputation as “the James Watt of the FCC” by sneering at the notion that broadcasters had a unique role or bore special responsibilities to ensure democratic discourse (California Lawyer, 8/88). It was all nonsense, said Fowler (L.A. Times, 5/1/03): “The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants.” To Fowler, television was “just another appliance—it’s a toaster with pictures,” and he seemed to endorse total deregulation (Washington Post, 2/6/83): “We’ve got to look beyond the conventional wisdom that we must somehow regulate this box.”
Of course, Fowler and associates didn’t favor total deregulation: Without licensing, the airwaves would descend into chaos as many broadcasters competed for the same frequencies, a situation that would mean ruin for the traditional corporate broadcasters they were so close to. But regulation for the public good rather than corporate convenience was deemed suspect.
Fowler vowed to see the Fairness Doctrine repealed, and though he would depart the commission a few months before the goal was realized, he worked assiduously at setting the stage for the doctrine’s demise.
He and his like-minded commissioners, a majority of whom had been appointed by President Ronald Reagan, argued that the doctrine violated broadcasters’ First Amendment free speech rights by giving government a measure of editorial control over stations. Moreover, rather than increase debate and discussion of controversial issues, they argued, the doctrine actually chilled debate, because stations feared demands for response time and possible challenges to broadcast licenses (though only one license was ever revoked in a dispute involving the Fairness Doctrine—California Lawyer, 8/88).
The FCC stopped enforcing the doctrine in the mid-’80s, well before it formally revoked it. As much as the commission majority wanted to repeal the doctrine outright, there was one hurdle that stood between them and their goal: Congress’ 1959 amendment to the Communications Act had made the doctrine law.
Help would come in the form of a controversial 1986 legal decision by Judge Robert Bork and then-Judge Antonin Scalia, both Reagan appointees on the D.C. Circuit of the U.S. Court of Appeals. Their 2-1 opinion avoided the constitutional issue altogether, and simply declared that Congress had not actually made the doctrine into a law. Wrote Bork: “We do not believe that language adopted in 1959 made the Fairness Doctrine a binding statutory obligation,” because, he said, the doctrine was imposed “under,” not “by” the Communications Act of 1934 (California Lawyer, 8/88). Bork held that the 1959 amendment established that the FCC could apply the doctrine, but was not obliged to do so—that keeping the rule or scuttling it was simply a matter of FCC discretion.
“The decision contravened 25 years of FCC holdings that the doctrine had been put into law in 1959,” according to MAP. But it signaled the end of the Fairness Doctrine, which was repealed in 1987 by the FCC under new chair Dennis R. Patrick, a lawyer and Reagan White House aide.
A year after the doctrine’s repeal, writing in California Lawyer(8/88), former FCC commissioner Johnson summed up the fight to bring back the Fairness Doctrine as “a struggle for nothing less than possession of the First Amendment: Who gets to have and express opinions in America.” Though a bill before Congress to reinstate the doctrine passed overwhelmingly later that year, it failed to override Reagan’s veto. Another attempt to resurrect the doctrine in 1991 ran out of steam when President George H.W. Bush threatened another veto.
Where things stand
What has changed since the repeal of the Fairness Doctrine? Is there more coverage of controversial issues of public importance? “Since the demise of the Fairness Doctrine we have had much less coverage of issues,” says MAP’s Schwartzman, adding that television news and public affairs programming has decreased locally and nationally. According to a study conducted by MAP and the Benton Foundation, 25 percent of broadcast stations no longer offer any local news or public affairs programming at all (Federal Communications Law Journal, 5/03).
The most extreme change has been in the immense volume of unanswered conservative opinion heard on the airwaves, especially on talk radio. Nationally, virtually all of the leading political talkshow hosts are right-wingers: Rush Limbaugh, Sean Hannity, Michael Savage, Oliver North, G. Gordon Liddy, Bill O’Reilly and Michael Reagan, to name just a few. The same goes for local talkshows. One product of the post-Fairness era is the conservative “Hot Talk” format, featuring one right-wing host after another and little else. Disney-owned KSFO in liberal San Francisco is one such station (Extra!, 3-4/95). Some towns have two.
When Edward Monks, a lawyer in Eugene, Oregon, studied the two commercial talk stations in his town (Eugene Register-Guard, 6/30/02), he found “80 hours per week, more than 4,000 hours per year, programmed for Republican and conservative talk shows, without a single second programmed for a Democratic or liberal perspective.” Observing that Eugene (a generally progressive town) was “fairly representative,” Monks concluded: “Political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society. There is nothing fair, balanced or democratic about it.”
Bringing back fairness?
For citizens who value media democracy and the public interest, broadcast regulation of our publicly owned airwaves has reached a low-water mark. In his new book, Crimes Against Nature, Robert F. Kennedy Jr. probes the failure of broadcasters to cover the environment, writing, “The FCC’s pro-industry, anti-regulatory philosophy has effectively ended the right of access to broadcast television by any but the moneyed interests.”
According to TV Week(11/30/04), a coalition of broadcast giants is currently pondering a legal assault on the Supreme Court’s Red Lion decision. “Media General and a coalition of major TV network owners—NBC Universal, News Corp. and Viacom—made clear that they are seriously considering an attack on Red Lion as part of an industry challenge to an appellate court decision scrapping FCC media ownership deregulation earlier this year.”
Considering the many looming problems facing media democracy advocates,Extra! asked MAP’s Schwartzman why activists should still be concerned about the Fairness Doctrine.
What has not changed since 1987 is that over-the-air broadcasting remains the most powerful force affecting public opinion, especially on local issues; as public trustees, broadcasters ought to be insuring that they inform the public, not inflame them. That’s why we need a Fairness Doctrine. It’s not a universal solution. It’s not a substitute for reform or for diversity of ownership. It’s simply a mechanism to address the most extreme kinds of broadcast abuse.