Fairness Doctrine

From 1949 to 1987 the FCC (Federal Communications Commission) required commercial broadcast outlets to apply the Fairness Doctrine to programs they broadcast. The idea was to provide protection to the public air waves from one-sided (especially political) views due to the limited availability of broadcast licenses. Broadcast Radio and TV stations were required to provide equal time to opposing opinions and ideas. Sometimes referred to as the “Equal Time Provision” of the FCC, the Supreme Court ruled in 1969 [Red Lion Broadcasting v. FCC, 395 U.S. 367] that the Fairness Doctrine of the FCC was Constitutional.

The Court found that the Broadcaster’s First Amendment Rights were not violated, but did add a caution to it’s opinion. This caution, that if the doctrine ever began to restrict Free Speech, the Fairness Doctrine’s Constitutionality should be reconsidered. Five years later, the doctrine was found to inhibit both the strength and range of public debate by the Court, but was not ruled unconstitutional [Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241]. Finally in 1984, the Supreme Court decided the limited availability of broadcast licenses was no longer true and in fact the Fairness Doctrine was restricting public debate [FCC v. League of Women Voters, 468 U.S. 364]. The FCC dropped the Fairness Doctrine following the 1987 Supreme Court decision declaring that the Fairness Doctrine was not mandated by Congress [Meredith Corp. v. FCC].

What changed from 1949 to 1987 was the great expansion and proliferation of Broadcast Media. The public had and continues to have ever increasing access to news, opinion and entertainment. Besides the standard broadcast by Radio and TV stations, Cable Stations, Satellite Radio and the Internet have made for diversity and availability of all flavors of public expression and debate. Programming on these various outlets is driven by Economics. And this is exactly as it should be. Our democracy is based on the guarantees of free speech and proper exercise of First Amendment Rights.

If the FCC or Congress were to enforce anything close to the archaic Fairness Doctrine, would not force anyone to listen to differing opinions equally. But a free economic market does exactly that. In addition to which the impact today of a reconstituted Fairness Doctrine by the FCC would have little impact on the total broadcasts available. The FCC only has jurisdiction over Commercial Radio and TV stations, and would not regulate the Internet, Satellite Radio or Cable TV.

What’s Fairness got to do with anything? We want Justice, appears to be the current motivation behind the Liberal Democrats in Congress push to revive the Fairness Doctrine. But, as we know Justice is not always fair. Rather than force more of the public to listen to Liberal points of view, most Broadcast Companies would, as the Supreme Court noted in 1984, avoid the hassle of compliance by dropping controversial programming in favor of bland pablum. That’s not fair, instead it is censorship.

Writing in today’s on-line article in The Hill, Alexander Bolton has addressed the current Fairness Doctrine in an article titled GOP preps for talk radio confrontation. Dick Durbin is quoted as saying:

“It’s time to reinstitute the Fairness Doctrine,” said Senate Majority Whip Dick Durbin (D-Ill.). “I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.”

And this from Diane Feinstein:

Senate Rules Committee Chairwoman Dianne Feinstein (D-Calif.) said she planned to “look at the legal and constitutional aspects of” reviving the Fairness Doctrine.

“I believe very strongly that the airwaves are public and people use these airwaves for profit,” she said. “But there is a responsibility to see that both sides and not just one side of the big public questions of debate of the day are aired and are aired with some modicum of fairness.”

Feinstein said she is not yet ready to submit a formal proposal.

Ironically one of the unintended consequences of a successful pursuit of the Fairness Doctrine could be the programming of National Public Radio (NPR). NPR was signed into law by President Lyndon Johnson in 1970 after the Congress passed the Public Broadcasting Act of 1967. Most Conservatives view the opinions of NPR to be of a Liberal Bent and would probably be a source for repeated challenges to the Fairness Doctrine requirement. The Liberals obviously would like to reduce Rush Limbaugh’s air time with equal voracity. Reality dictates that even something so unfair and unjust as the Fairness Doctrine would be, it’s not going to bring back Air America.

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