FAIRNESS DOCTRINE (Historical Development and Update)

From its establishment in 1934 the Federal Communications Commission (FCC) discouraged broadcast station owners from airing biased presentations of controversial issues. In 1939 the National Association of Broadcasters (NAB) echoed the FCC's fair treatment approach. Responding at least in part to Father Charles Coughlin's controversial anti-Semitic broadcasts, NAB adopted a voluntary code that discouraged stations from editorializing and encouraged balanced treatment of controversial issues. In 1940 the FCC applied these principles in its Mayflower decision, which banned on-air editorializing by station owners involved in broadcasting. Although the FCC's no-editorializing policy was never challenged in the courts, scholars have long criticized it as a clear violation of broadcasters' first amendment rights.

In 1946 the FCC promulgated "The Blue Book," in which it suggested that broadcasters had an affirmative duty to cover subjects of a controversial nature. At this point NAB lobbied the FCC to overturn its Mayflower decision and to recognize a broadcasters' right to editorialize. In 1949 the FCC agreed to permit editorializing, but continued its commitment to fair treatment of controversial issues in its "Report on Editorializing," which included what came to be known as the "fairness doctrine." The doctrine required broadcasters to cover controversial issues of public importance and provide a reasonable opportunity for the presentation of opposing viewpoints on these issues. Broadcasters preferred blanket permission to editorialize and complained about the fairness doctrine on freedom of speech grounds. However, the FCC enforced fairness doctrine violations only at license renewal time and even then was extremely reluctant to deny renewal on that basis. The lack of official enforcement of the doctrine left it constitutionally unchallenged until the 1960s.

In the 1960s the FCC increased its enforcement of the fairness doctrine, and it developed further the principle that fairness required broadcasters to offer response time to persons personally attacked by commentators. When the FCC ordered a station to provide response time for such an attack, the station brought a First Amendment challenge in red lion broadcasting co. , inc. v. fcc (1969). The Supreme Court upheld the fairness doctrine as justified by the governmental interest in allocating and regulating the broadcast spectrum as a scarce resource. The constitutional significance of Red Lion is the lower degree of scrutiny given to laws burdening the First Amendment rights of broadcasters.

Since Red Lion, however, judges, scholars, and policy-makers have expressed increasingly shrill opposition to the scarcity rationale for government regulation of broadcasting, with commentators arguing either that the rationale was never sound or that technological change has rendered it no longer sound. Heeding these calls, a deregulatory FCC abolished the fairness doctrine in 1987. It found that the doctrine was inconsistent with the FCC's mission to regulate broadcasting in the public interest, and that the doctrine had a chilling effect on speech in violation of the First Amendment. The U.S. Court of Appeals for the District of Columbia Circuit reviewed this decision in Syracuse Peace Council v. FCC (1989), but it did not reach the First Amendment question, holding that the FCC had acted within its discretion when abolishing the doctrine, which was not required by statute.

The Supreme Court declined to review Syracuse Peace Council, and the Court has avoided revisiting Red Lion. Nonetheless, the Court has expressed skepticism about the continuing vitality of the scarcity rationale as applied to broadcasting. In addition, the Court has chosen not to extend Red Lion to new media. In turner broadcasting system, inc. v. fcc (1994), the Court applied heightened scrutiny to regulations of the cable industry, and in Reno v. ACLU (1997), the Court declined to apply Red Lion to regulation of the internet. Scholars seeking to justify new media regulation have frequently turned from the scarcity rationale to other regulatory rationales, such as intrusiveness in the home and the need to protect children from violence.

In the late 1980s Congress tried twice to enact the fairness doctrine into law, but opposition from Presidents ronald reagan and george h. w. bush on First Amendment grounds thwarted these efforts. A Republican Congress is unlikely to seek reenactment of the fairness doctrine, but a Democratic Congress with a Democratic President could conceivably revive it. The doctrine's demise appears to have encouraged the development of talk radio, which some scholars interpret as evidence that the doctrine did in fact chill speech.

Today the fairness doctrine is but a legacy that lives on in the Supreme Court's Red Lionprecedent, which itself reflects an earlier era of First Amendment jurisprudence rather than current scholarly thinking on the subject.

Amy l. Toro
(2000)

Bibliography

Barron, Jerome A. 1989 What Does the Fairness Doctrine Controversy Really Mean? Hastings Communications/Entertainment Law Journal 12:205–44.

Hazlett, Thomas W. and Sosa, David W. 1997 Was the Fairness Doctrine a "Chilling Effect"?: Evidence from the Postderegulation Radio Market. Journal of Legal Studies 26:279–301.

Krattenmaker, Thomas G. and Powe, L. A., Jr. 1985 The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream. Duke Law Journal 1985:151–176.

Rowan, Fred 1984 Broadcast Fairness, Doctrine, Practice and Prospects. New York: Longman.

Simmons, Steven J. 1978 The Fairness Doctrine and the Media. Berkeley: University of California Press.