Fairness Doctrine

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Not to be confused with Unfairness doctrine.

The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC) that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that was (in the Commission's view) honest, equitable and balanced.

The Fairness Doctrine should not be confused with the Equal Time rule. The Fairness Doctrine deals with matters of public importance, while the Equal Time rule deals only with political candidates.

The United States Supreme Court upheld the Commission's general right to enforce the Fairness Doctrine where channels were limited, but the courts have not, in general, ruled that the FCC is obliged to do so.[1] In 1987, the FCC abolished the Fairness Doctrine, prompting some to urge its reintroduction through either Commission policy or Congressional legislation.[2]

Contents

[edit] History

According to Steve Rendall of the progressive media criticism group Fairness and Accuracy in Reporting,

The Fairness Doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented.[3]

The Fairness Doctrine was introduced in the U.S. in 1949.[4] The doctrine remained a matter of general policy and was applied on a case-by-case basis until 1967, when certain provisions of the doctrine were incorporated into FCC regulations.[5]

In 1974 the Federal Communications Commission asserted that the United States Congress had delegated it the power to mandate a system of "access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue..." but that it had not yet exercised that power because licensed broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It warned that "should future experience indicate that the doctrine [of "voluntary compliance"] is inadequate, either in its expectations or in its results, the Commission will have the opportunity—and the responsibility—for such further reassessment and action as would be mandated." [6]

[edit] Decisions of the United States Supreme Court

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8-0) the constitutionality of the Fairness Doctrine in a case of an on-air personal attack, in response to challenges that the doctrine violated the First Amendment to the U.S. Constitution. The case began when journalist Fred J. Cook, after the publication of his Goldwater: Extremist of the Right, was the topic of discussion by Billy James Hargis on his daily Christian Crusade radio broadcast on WGCB in Red Lion, Pennsylvania. Mr. Cook sued arguing that the Fairness Doctrine entitled him to free air time to respond to the personal attacks.[7]

Although similar laws had been called unconstitutional when applied to the press, the Court cited a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in this way because of the limited spectrum of the public airwaves. Writing for the Court, Justice Byron White declared:

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio 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.[1]

The Court warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered.

However, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court), "Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate." This decision differs from Red Lion v. FCC in that it applies to a newspaper, which, unlike a broadcaster, is unlicensed and can face a theoretically-unlimited number of competitors.

In 1984, the Supreme Court ruled that Congress could not forbid editorials by non-profit stations that received grants from the Corporation for Public Broadcasting (FCC v. League of Women Voters of California, 468 U.S. 364 (1984)). The Court's 5-4 majority decision by William J. Brennan, Jr. stated that while many now considered that expanding sources of communication had made the Fairness Doctrine's limits unnecessary, "We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required." (footnote 11). After noting that the FCC was considering repealing the Fairness Doctrine rules on editorials and personal attacks out of fear that those rules might be "chilling speech", the Court added

Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine "[has] the net effect or reducing rather than enhancing" speech, we would then be forced to reconsider the constitutional basis of our decision in that case. (footnote 12).[8]

[edit] Revocation

Under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's presidential campaign staff in 1976 and 1980, the commission began to repeal parts of the Fairness Doctrine, announcing in 1985 that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment.

On February 16, 2009, Fowler told conservative radio talk-show host Mark Levin that his work toward revoking the Fairness Doctrine under the Reagan Administration had been a matter of principle (his belief that the Doctrine impinged upon the First Amendment), not partisanship. Fowler described the White House staff raising concerns, at a time before the prominence of conservative talk radio and during the preeminence of the Big Three television networks and PBS in political discourse, that repealing the policy would be politically unwise. He described the staff's position as saying to Reagan, "the only thing that really protects you from the savageness of the three networks—every day they would savage Ronald Reagan—is the Fairness Doctrine, and Fowler is proposing to repeal it!" [9] Instead, Reagan supported the effort and later vetoed the Democratic-controlled Congress's effort to make the doctrine law.

In one landmark case, the FCC argued that teletext was a new technology that created soaring demand for a limited resource, and thus could be exempt from the Fairness Doctrine. The Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) argued that teletext transmissions should be regulated like any other airwave technology, hence the Fairness Doctrine was applicable (and must be enforced by the FCC).

In 1986, Judges Robert Bork and Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit concluded that the Fairness Doctrine did apply to teletext but that the FCC was not required to apply it.[10]  In a 1987 case, Meredith Corp. v. FCC, two other judges on the same court declared that Congress did not mandate the doctrine and the FCC did not have to continue to enforce it.[11]

In August 1987, the FCC abolished the doctrine by a 4-0 vote, in the Syracuse Peace Council decision, which was upheld by a different panel of the Appeals Court for the D.C. Circuit in February 1989.[12] The FCC stated, "the intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists," and suggested that, because of the many media voices in the marketplace, the doctrine be deemed unconstitutional.

[edit] Reaction

In June 1987, Congress had attempted to preempt the FCC decision and codify the Fairness Doctrine [13], but the legislation was vetoed by President Ronald Reagan. Another attempt to revive the doctrine in 1991 was stopped when President George H.W. Bush threatened another veto.[14]

Two corollary rules of the doctrine, the "personal attack" rule and the "political editorial" rule, remained in practice until 2000. The "personal attack" rule applied whenever a person (or small group) was subject to a personal attack during a broadcast. Stations had to notify such persons (or groups) within a week of the attack, send them transcripts of what was said and offer the opportunity to respond on-the-air. The "political editorial" rule applied when a station broadcast editorials endorsing or opposing candidates for public office, and stipulated that the unendorsed candidates be notified and allowed a reasonable opportunity to respond.

The U.S. Court of Appeals for the D.C. Circuit ordered the FCC to justify these corollary rules in light of the decision to repeal the Fairness Doctrine. The FCC did not provide prompt justification and ultimately ordered their repeal in 2000.

In February 2005, U.S. Representative Louise Slaughter (Democrat of New York) and 23 co-sponsors introduced the Fairness and Accountability in Broadcasting Act (H.R. 501) [15] in the 1st Session of the 109th Congress of 2005-7 (when Republicans held a majority of both Houses). The bill would have shortened a station's license term from eight years to four, with the requirement that a license-holder cover important issues fairly, hold local public hearings about its coverage twice a year, and document to the FCC how it was meeting its obligations.[16] The bill was referred to committee, but progressed no further.[17]

In the same session of Congress, Representative Maurice Hinchey (another Democrat from New York) introduced legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, had 16 co-sponsors in Congress.[18]

[edit] Reinstatement considered

[edit] Support

Some Democratic legislators have expressed interest in reinstituting the Fairness Doctrine,[19] although no one has introduced legislation to do so since 2005.

In June 2007, Senator Richard Durbin (D-Illinois) said, "It’s time to reinstitute the Fairness Doctrine,” [20] an opinion shared by his Democratic colleague, Senator John Kerry of Massachusetts.[21] However, according to Marin Cogan of The New Republic in late 2008, "Senator Durbin's press secretary says that Durbin has 'no plans, no language, no nothing. He was asked in a hallway last year, he gave his personal view'—that the American people were served well under the doctrine—'and it's all been blown out of proportion.' " [22]

On June 24, 2008, U.S. Representative Nancy Pelosi of San Francisco, California (who had been elected Speaker of the House in January 2007) told reporters that her fellow Democratic Representatives did not want to forbid reintroduction of the Fairness Doctrine, adding "the interest in my caucus is the reverse." When asked by John Gizzi of Human Events, "Do you personally support revival of the 'Fairness Doctrine?'", the Speaker replied "Yes." [23]

On October 22, 2008, Senator Jeff Bingaman (Democrat of New Mexico) told a conservative talk radio host in Albuquerque, New Mexico, "I would want this station and all stations to have to present a balanced perspective and different points of view," and "All I’m saying is that 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." [24]

On December 15, 2008, U.S. Representative Anna Eshoo (Democrat of California) told The Daily Post in Palo Alto, California, I’ll work on bringing it back. I still believe in it." She said it should also apply to cable and satellite broadcasters. "It should and will affect everyone." [25]

On February 4, 2009, Senator Debbie Stabenow (Democrat of Michigan) told radio host and WorldNetDaily columnist Bill Press, when asked whether it was time to bring back the Doctrine, "I think it's absolutely time to pass a standard. Now, whether it's called the Fairness Standard, whether it's called something else – I absolutely think it's time to be bringing accountability to the airwaves." When Press asked if she would seek Senate hearings on such accountability in 2009, she replied, "I have already had some discussions with colleagues and, you know, I feel like that's gonna happen. Yep." [26]

A week later, on February 11, 2009, Senator Tom Harkin (Democrat of Iowa) told Press, "...we gotta get the Fairness Doctrine back in law again." Later in response to Press's assertion that "...they are just shutting down progressive talk from one city after another," Senator Harkin responded, "Exactly, and that's why we need the fair — that's why we need the Fairness Doctrine back." [27]

Former President Bill Clinton has also shown support for the Fairness Doctrine. During a February 13, 2009, appearance on the Mario Solis Marich radio show, Clinton said, "Well, you either ought to have the Fairness Doctrine or we ought to have more balance on the other side, because essentially there's always been a lot of big money to support the right wing talk shows." Clinton cited the "blatant drumbeat" against the stimulus program from conservative talk radio, suggesting that it doesn't reflect economic reality.[28]

[edit] Opposition

The Fairness Doctrine has been strongly opposed by prominent libertarians and conservatives who view it as an attempt to regulate or mandate certain types of speech on the airwaves. Editorials in The Wall Street Journal and The Washington Times have said that Democratic attempts to bring back the Fairness Doctrine have been made largely in response to and contempt for the successes of conservative talk radio.[29] [30]

On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet.[31] It could also include "government dictating content policy".[32] The conservative Media Research Center's Culture & Media Institute argued that the three main points supporting the Fairness Doctrine — media scarcity, liberal viewpoints being censored at a corporate level, and public interest — are all myths.[33]

On the 16th of February, 2009, Mark Fowler told Mark Levin on Levin's talk radio program, "I believe as President Reagan did, that the electronic press—and you're included in that—the press that uses air and electrons, should be and must be as free from government control as the press that uses paper and ink, Period." [9]

[edit] Suggested alternatives

Media reform organizations such as Free Press feel that a return to the Fairness Doctrine is not as important as setting stronger station ownership caps and stronger "public interest" standards enforcement (with fines given to public broadcasting). [34]

In June 2008, Barack Obama's press secretary wrote that Obama (then a Democratic U.S. Senator from Illinois and candidate for President) "does not support reimposing the Fairness Doctrine on broadcasters", but that he "considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible", adding, "That is why Sen. Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets." [35] In February 2009, a White House spokesperson said that President Obama continues to oppose the revival of the Doctrine.[36]

[edit] Public opinion

In an August 13, 2008, telephone poll released by Scott Rasmussen, 47% of 1,000 likely voters supported a government requirement that broadcasters offer equal amounts of liberal and conservative commentary, while 39% opposed such a requirement. In the same poll, 57% opposed and 31% favored requiring Internet web sites and bloggers that offer political commentary to present opposing points of view. By a margin of 71%-20% the respondents agreed that it is "possible for just about any political view to be heard in today’s media" (including the Internet, newspapers, cable TV and satellite radio), but only half the sample said they had followed recent news stories about the Fairness Doctrine closely. (The margin of error had a 95% chance of being within ± 3%.) [37]

[edit] Recent legislation

In 2007, Senator Norm Coleman (Republican, Minnesota) proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule." [38] It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee’s jurisdiction".

In the same year, the Broadcaster Freedom Act of 2007 was proposed in the Senate by Senators Coleman with 35 co-sponsors (S.1748) and John Thune (R-SD) with 8 co-sponsors (S.1742) [39] and in the House by Republican Representative Mike Pence of Indiana with 208 co-sponsors (H.R. 2905).[40] It provided that

the Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part) the requirement that broadcasters present opposing viewpoints on controversial issues of public importance, commonly referred to as the `Fairness Doctrine', as repealed in General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985).[41]

None of these measures came to the floor of either house.

In the current Congress, some members have introduced the Broadcaster Freedom Act of 2009 (S. 34), to block reinstatement of the Doctrine. On February 26, 2009, by a vote of 87-11, the Senate added that act as an amendment to a bill to give the District of Columbia a voting representative in the House. [42] The Associated Press reported that the vote was "in part a response to conservative radio talk show hosts who feared that Democrats would try to revive the policy to ensure liberal opinions got equal time". The AP report went on to say that President Obama had no intention of reimposing the doctrine, but Republicans (led by Sen. Jim DeMint, R-S. Carolina) wanted more in the way of a guarantee that the doctrine would not be reimposed.[43]

[edit] See also

[edit] References

  1. ^ a b Red Lion Broadcasting Co. v. FCC also at 395 U.S. 367 (1969) (Excerpt from Majority Opinion, III A; Senate report cited in footnote 26). Justice William O. Douglas did not participate in the decision, but there were no concurring or dissenting opinions.
  2. ^ Clark, Drew (20 October 2004) "How Fair Is Sinclair's Doctrine?" Slate
  3. ^ Rendall, Steve (2005-02-12). "The Fairness Doctrine: How We Lost it, and Why We Need it Back" (in English). Common Dreams (Fairness and Accuracy In Reporting). http://www.commondreams.org/views05/0212-03.htm. Retrieved on 2008-11-13. 
  4. ^ Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 [1949])
  5. ^ Donald P. Mullally, "The Fairness Doctrine: Benefits and Costs", The Public Opinion Quarterly, Vol. 33, No. 4 (Winter, 1969-1970), p. 577
  6. ^ In the Matter of THE HANDLING OF PUBLIC ISSUES UNDER THE FAIRNESS DOCTRINE AND THE PUBLIC INTEREST STANDARDS OF THE COMMUNICATIONS ACT, 48 F.C.C.2d 1 (F.C.C. 1974)
  7. ^ Tom Joyce: “His call for a reply set up historic broadcast ruling; Fred J. Cook, whose book was attacked on Red Lion radio station WGCB in 1964, died recently at age 92.” York Daily Record (Pennsylvania), May 6, 2003, retrieved on August 17, 2008
  8. ^ The quotation is from Section III C of Red Lion v. FCC 395 U.S. 367 (1969). Justice Brennan's opinion was joined by Justices Thurgood Marshall, Harry Blackmun, Lewis Powell and Sandra Day O'Connor. Dissenting opinions were written or joined by Chief Justice Warren Burger and Justices William Rehnquist, Byron White and John Paul Stevens
  9. ^ a b The Mark Levin Show, February 16, 2009 (a 26-Megabyte MP3 file), from about 17 minutes 15 seconds into the broadcast to 25 min. 45 sec.
  10. ^ Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C. Cir. 1986) retrieved on August 17, 2008
  11. ^ Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987), retrieved on August 17, 2008
  12. ^ Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), retrieved on August 17, 2008
  13. ^ The Fairness in Broadcasting Act of 1987, S. 742 & H.R. 1934, 100th Cong., 1st Sess. (1987)
  14. ^ Fairness Doctrine by Val E. Limburg, Museum of Broadcast Communications
  15. ^ H.R. 501, Fairness and Accountability in Broadcasting Act (109th Congress, 1st Session) (full text) from GovTrack.us, retrieved on November 13, 2008.
  16. ^ Congressional Research Service summary of H.R. 501--109th Congress (2005): Fairness and Accountability in Broadcasting Act, GovTrack.us (database of federal legislation), retrieved on November 13, 2008
  17. ^ Overview of H.R. 501 (109th Congress, 1st session) from GovTrack.us, retrieved on November 14, 2008.
  18. ^ Summary at "Media Ownership Reform Act of 2005". http://www.house.gov/hinchey/issues/mora.shtml.  - Full text at H.R. 3302 Media Ownership Reform Act of 2005 retrieved on August 17, 2008.
  19. ^ "Fox News Sunday Transcript" Transcript of Senators Lott, Feinstein, June 24, 2007
  20. ^ Alexander Bolton, GOP preps for talk radio confrontation TheHill.com, June 27, 2007, retrieved on October 27, 2008
  21. ^ John Eggerton (June 27, 2007). "Kerry Wants Fairness Doctrine Reimposed". Broadcasting and Cable. http://www.broadcastingcable.com/article/CA6456031.html. Retrieved on October 27, 2008.  describing an interview on The Brian Lehrer Show on WNYC radio
  22. ^ Marin Cogan, Bum Rush: Obama's secret plan to muzzle talk radio. Very, very secret, The New Republic, December 3, 2008, retrieved on November 20, 2008
  23. ^ John Gizzi (June 25, 2008). "Pelosi Supports ‘Fairness’ Doctrine". Human Events. http://www.humanevents.com/article.php?id=27185. Retrieved on October 27, 2008. 
  24. ^ Pete Winn (October 22, 2008). "Democratic Senator Tells Conservative Radio Station He'd Re-impose Fairness Doctrine--on Them". CNS News. http://www.cnsnews.com/public/content/article.aspx?RsrcID=38008. Retrieved on October 28, 2008. 
  25. ^ San Francisco Peninsula Press Club (DECEMBER 16, 2008). "Rep. Eshoo to push for Fairness Doctrine". San Francisco Peninsula Press Club. http://sfppc.blogspot.com/2008/12/rep-eshoo-to-push-for-fairness-doctrine.html. Retrieved on December 15, 2008. 
  26. ^ Another senator lines up behind 'Fairness Doctrine', WorldNetDaily, February 5, 2009, retrieved on February 13, 2009.
  27. ^ Michael Calderon (February 11, 2009). "Sen. Harkin: 'We need the Fairness Doctrine back'". Politico. http://www.politico.com/blogs/michaelcalderone/0209/Sen_Harkin_We_need_the_Fairness_Doctrine_back_.html?showall. Retrieved on February 11, 2009. 
  28. ^ John Eggerton (February 13, 2009). "Bill Clinton Talks of Re-Imposing Fairness Doctrine or At Least "More Balance" in Media". Broadcasting & Cable. http://www.broadcastingcable.com/article/174123-Bill_Clinton_Talks_of_Re_Imposing_Fairness_Doctrine_or_At_Least_More_Balance_in_Media.php. Retrieved on February 13, 2009. 
  29. ^ "Rush to Victory". The Wall Street Journal. April 4, 2005. http://www.opinionjournal.com/columnists/dhenninger/?id=110006626. Retrieved on July 1, 2008. 
  30. ^ "‘Fairness’ is Censorship". The Washington Times. June 17, 2008. http://www.washingtontimes.com/news/2008/jun/17/fairness-is-censorship/. Retrieved on July 1, 2008. 
  31. ^ August 13, 2008 Business & Media Institute article on Fairness Doctrine also controlling Internet content.
  32. ^ http://www.eyeblast.tv/Public/Video.aspx?rsrcID=34016 See also Commissioner McDowell's speech to the Media Institute in January 2009.
  33. ^ Culture & Media Institute report on The Fairness Doctrine. - accessed August 13, 2008.
  34. ^ "The Structural Imbalance of Talk Radio", Free Press, Center for American Progress
  35. ^ John Eggerton, "Obama Does Not Support Return of Fairness Doctrine", Broadcasting & Cable, June 25, 2008, retrieved on October 30, 2008, citing an e-mail from Obama's press secretary, Michael Ortiz.
  36. ^ "White House: Obama Opposes 'Fairness Doctrine' Revival". Fox News. February 18, 2009. http://www.foxnews.com/politics/first100days/2009/02/18/white-house-opposes-fairness-doctrine/. 
  37. ^ 47% Favor Government Mandated Political Balance on Radio, TV, Rasmussen Reports press release, Thursday, August 14, 2008 and Toplines - Fairness Doctrine - August 13, 2008 (Questions and answers from the survey).
  38. ^ Frommer, Frederic J. (July 14, 2007). "Democrats Block Amendment to Prevent Fairness Doctrine". Associated Press. http://www.commondreams.org/archive/2007/07/14/2514/. 
  39. ^ Broadcaster Freedom Act of 2007, Open Congress Foundation, retrieved on November 14, 2008
  40. ^ Broadcaster Freedom Act of 2007 To prevent the Federal Communications Commission from repromulgating the fairness doctrine, Open Congress Foundation, retrieved on November 14, 2008
  41. ^ Text of H.R. 2905: Broadcaster Freedom Act of 2007, GovTrack.us, retrieved on November 14, 2008
  42. ^ "Senate Backs Amendment to Prevent 'Fairness Doctrine' Revival". FOXNews.com. February 26, 2009. http://www.foxnews.com/politics/2009/02/26/demint-tries-prevent-fairness-doctrine-revival/. 
  43. ^ http://www.breitbart.com/article.php?id=D96JF8V00&show_article=1

[edit] Further reading

[edit] External links

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