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Debate: Fairness Doctrine

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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?


  • 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."
Rep. Luther Johnson (D.-Texas), in the debate that preceded the Radio Act of 1927. 16 Jan. 2003 - "American thought and American politics will be largely at the mercy of those who operate these stations, for publicity is the most powerful weapon that can be wielded in a republic. And when such a weapon is placed in the hands of one person, or a single selfish group is permitted to either tacitly or otherwise acquire ownership or dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people."[1]
  • 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 is more code of conduct than specific mandate. "TV View; Why the Fairness Doctrine is Still Important". New York Times. 15 Sept. 1985 - "The Fairness Doctrine is a code of broadcast behavior, distilled from 50 years of legislation, court decisions and F.C.C. practice, and defined not so much by what it is as by what it does. When the F.C.C. said last month that it wanted to abandon the doctrine, it called it the two-pronged obligation that requires broadcasters to provide coverage of vitally important controversial issues in the community...and provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues. An obligation like this, the F.C.C. now says, is no longer appropriate; it has been superseded by changing times.
Purely as a personal matter, meanwhile, this critic prefers the way the F.C.C. defined the Fairness Doctrine in 1974: It is a two-fold duty: (1) The broadcaster must devote a reasonable percentage of broadcast time to public issues; and (2) his coverage of these issues must be fair in the sense that it provides an opportunity for...contrasting points of view.

Either way, the general meaning is the same, and a specific wording is probably unimportant. 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."


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]
  • 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.)"

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