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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.

Until twenty years ago broadcasters in the USA had by law to follow the federal government’s “Fairness Doctrine”. This rule, formally introduced in 1949, required radio and television stations to give “ample play to the free and fair competition of opposing views”, so that listeners and viewers received a range of opinions and individual stations were not able to promote particular viewpoints to the exclusion of all others. The doctrine was also supported by Congress in legislation, although there is argument over whether this required the Federal Communications Commission (FCC) to regulate broadcasters in this way, or simply allowed them to do so if they judged it necessary. A 1969 Supreme Court case found that the Fairness Doctrine did not infringe the constitutional freedom of speech.

In 1987 the Reagan Administration’s FCC judged that the Fairness Doctrine was an outdated and unnecessary interference in the broadcasting business and it was repealed. Congress made an attempt to reimpose it but President Reagan vetoed this and the doctrine has never been brought back since.

Since the Fairness Doctrine was removed in 1987 talk radio has become much more prominent, bringing a brash and lively style of political debate into many American homes (and cars). Conservative viewpoints dominate their agenda, and hosts such as Rush Limbaugh make no attempt to hide their own political opinions or to provide a platform for views which disagree with their own. Such stations are now seen as hugely politically influential, with loyal audiences which they can mobilise to lobby, vote and protest on key issues. This was particularly seen in the collapse of immigration reform in 2007, when some Republicans as well as Democrats began to call for talk radio to be reined back, perhaps through the reinstatement of the Fairness Doctrine.

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."
  • 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 without Fairness Doctrine can harm policy-making. "Broadcasting, reintroducing the Fairness Doctrine". Debatabase. 27 Aug. 2008 - "Unbalanced broadcasting also affects policymaking, in ways which are bad for our country. Talk radio hosts can fire up their audiences over particular issues, successfully urging them to place so much pressure on their elected representatives that they are able to impose their agenda at state and federal level. This attacks the representative principle – that elected officials must use their best judgement to make decisions for the good of all, rather than bending to the uninformed and perhaps temporary will of mass opinion. Such campaigns are particularly dangerous on issues such as trade and immigration where the populist argument seems simple, easily summed up in appealing nativist slogans. Often the alternative case is more complex, requiring a greater level of economic and political education and a willingness to study dispassionately a range of evidence. Following the collapse in 2007 of attempts at immigration reform, even Tent Lott, a leading Republican Senator, has lamented that talk radio is running the country, having power without responsibility."
  • Fairness Doctrine remains important for broadcasting, despite new media. Nick Carr. "Who killed the blogosphere?". Rough Type. 7 Nov. 2008 - "When "the wireless" was introduced to America around 1900, it set off a surge in amateur broadcasting, as hundreds of thousands of people took to the airwaves. "On every night after dinner," wrote Francis Collins in the 1912 book Wireless Man, "the entire country becomes a vast whispering gallery."
....But it didn't last. Radio soon came to be dominated by a relatively small number of media companies, with the most popular amateur operators being hired on as radio personalities....That's not to say that the amateur radio operators didn't change the mainstream media. They did. And so, too, have bloggers. Allowing readers to post comments on stories has now, thanks to blogging, become commonplace throughout online publishing. But the once popular idea that blogs would prove to be an alternative to, or even a devastating attack on, corporate media has proven naive."
  • 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 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."


John McCain said in 2007, "had a chilling affect on free speech, and it is hard to imagine that the American people would support reinstating a policy where the federal government would be required to police the airwaves to ensure differing viewpoints are offered."[2]
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."[3]
F.C.C. concluded that the Fairness Doctrine "restricts the journalistic freedom of broadcasters."
  • Fairness Doctrine stifles public debate. "Broadcasting, reintroducing the Fairness Doctrine". Debatabase. 27 Aug. 2008 - "When the Fairness Doctrine was in place it actually stifled debate and prevented controversial issues being freely debated over the airwaves. This was because its requirement for balance left broadcasters open to charges of bias and fearful of litigation or of losing their licenses. In order to prevent this, stations simply chose to avoid all discussion of controversial issues. By contrast, the lifting of the Fairness Doctrine in 1987 had a liberating effect on broadcasters, allowing talk radio to flourish and encouraging the debate of a great variety of important issues, from a wide range of perspectives. There can be no doubt that bringing the doctrine back would again have a “chilling effect” on the public debate which democracy needs to flourish."
  • Public can judge extreme viewpoints; Fairness Doctrine unnecessary. Democratic House Appropriations Committee Chairman David Obey of Wisconsin - "We ought to let right-wing talk radio go on as they do now. Rush and Sean (Hannity) are just about as important in the scheme of things as Paris Hilton, and I would hate to see them gain an ounce of credibility by being forced by a government agency or anybody else to moderate their views enough that they might become modestly influential or respected."[4]
  • Popularity of conservative talk radio confirms its legitimacy. "Broadcasting, reintroducing the Fairness Doctrine". Debatabase. 27 Aug. 2008 - "Broadcasting is a business, not different in character from any other. We need to take a market view and let the public as consumers decide what they want to listen to rather than imposing it upon them. There is nothing to stop anyone launching a liberal talk radio station, and indeed there have been many attempts to do so. But these have proved unpopular failures, because the public does not want to buy what they are peddling. Talk radio is successful because its broadcasters share the values of the American people, and are able to express the way they feel about the key issues of the day. One of those issues is the way in which strong public opinion (e.g. over immigration, NAFTA or school prayer) has been consistently ignored by politicians over many decades – they say one thing at election time and then do another in Washington. If talk radio publicises representatives’ voting records and enables their voters to hold them to account, then so much the better."
"Broadcasting, reintroducing the Fairness Doctrine". Debatabase. 27 Aug. 2008 - "As for complaints about the tone of talk-radio shows, what some people label “intolerant and unpleasant”, others may see as vigorous and fearless. In any case, many liberals are horribly rude about President Bush, or show disrespect for great American institutions such as the stars and stripes flag and the U.S. military."
  • 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.)"
  • Enforcing the Fairness Doctrine would be too expensive. The Fairness Doctrine would be difficult to enforce, as it would require government officials oversee nearly every broadcasting network to ensure "fair and balanced" broadcasting. This would be expensive.

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