Debate: Fairness Doctrine

Should the Fairness Doctrine be Reinstated?

Background and Context of Debate:

Legislation currently is before Congress that would reinstate a federal communications policy known as the "fairness doctrine." The legislation, entitled the "Fairness in Broadcasting Act of 1993," is sponsored in the Senate (S. 333) by Ernest Hollings, the South Carolina Democrat, and in the House (H.R. 1985) by Bill Hefner, the North Carolina Democrat. It would codify a 1949 Federal Communications Commission (FCC) regulation that once required broadcasters to "afford reasonable opportunity for the discussion of conflicting views of public importance." The fairness doctrine was overturned by the FCC in 1987.

Does the Fairness Doctrine breach the First Amendment?

Yes

• Fairness Doctrine ensures diverse viewpoints on scarce frequencies 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."

• The Fairness Doctrine improves the public discourse Sen. Jeff Bingaman (D-N.M.) - "for many, many years we operated under a Fairness Doctrine in this country, and I think the country was well-served. I think the public discussion was at a higher level and more intelligent in those days than it has become since."[1]

• 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."

• 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 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 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 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."

• Fairness 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."

• 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 expose broadcasters to risk of litigation

No

• Fairness Doctrine ignores sufficiency of modern media outlets Adam Thierer. "Why the Fairness Doctrine is Anything But Fair". Heritage Foundation. 29 Oct. 1993 - "The doctrine's supporters seem not to appreciate just how much the broadcast world has changed since 1949. With the proliferation of informational resources and technology, the number of broadcast outlets available to the public has increased steadily. In such an environment, it is hard to understand why the federal government must police the airwaves to ensure that differing views are heard."

• Both left and right broadcasting exist; Fairness Doctrine unnecessary. 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 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."

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]

F.C.C. concluded that the Fairness Doctrine "restricts the journalistic freedom of broadcasters."

• 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."

• 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.)"

• Fairness Doctrine can be used to push 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 Doctrine falsely presumes "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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Yes

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No

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Pro/con sources

Yes

• Steve Rendall. "How We Lost it, and Why We Need it Back". Common Dreams. 12 Feb. 2005
• Pete Winn. "Democratic Senator Tells Conservative Radio Station He’d Re-impose Fairness Doctrine--on Them". CNS News. 28. Oct. 2008
• John Gizzi. "Pelosi Supports 'Fairness Doctrine'". 25 June 2005
• John Eggerton. "Kerry Wants Fairness Doctrine Reimposed". Broadcasting & Cable. 27 June 2007
• "TV View; Why the Fairness Doctrine is Still Important". New York Times. 15 Sept. 1985

No

• Adam Thierer. "Why the Fairness Doctrine is Anything But Fair". Heritage Foundation. 29 Oct. 1993
• Barbara Comstock & Lanny J. Davis. "What’s Fair Is Fair. And fair is not the 'Fairness Doctrine.'". National Review Online. 20 Oct. 2008
• "It’s not fairness". Los Angeles Times. 24 Jul. 2007
• Cronauer, Adrian. "The Fairness Doctrine: A Solution in Search of a Problem." (Symposium: The Transformation of Television News). Federal Communications Law Journal (Los Angeles, California), October, 1994.
• Donahue, Hugh Carter. "The Fairness Doctrine Is Shackling Broadcasting." Technology Review (Cambridge, Massachusetts), November-December, 1986.

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