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. The FCC discarded the rule
because, contrary to its purpose, it failed to encourage the
discussion of more controversial issues. There were also concerns
that it was in violation of First Amendment free speech principles.
The legislation now before Congress would enshrine the fairness
doctrine into law.
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.
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.
Tested in Court
The fairness doctrine's constitutionality was tested and
upheld by the U.S. Supreme Court in a landmark 1969 case, Red Lion
Broadcasting v. FCC (395 U.S. 367). Although the Court then ruled
that it did not violate a broadcaster's First Amendment rights, the
Court cautioned that if the doctrine ever began to restrain speech,
then the rule's constitutionality should be reconsidered. Just five
years later, without ruling the doctrine unconstitutional, the
Court concluded in another case that the doctrine "inescapably
dampens the vigor and limits the variety of public debate" (Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241). In 1984, the
Court concluded that the scarcity rationale underlying the doctrine
was flawed and that the doctrine was limiting the breadth of public
debate (FCC v. League of Women Voters, 468 U.S. 364). This ruling
set the stage for the FCC's action in 1987. An attempt by Congress
to reinstate the rule by statute was vetoed by President Ronald
Reagan in 1987, and later attempts failed even to pass
As an independent regulatory agency, the FCC has the power to
reimpose the doctrine without congressional or executive action. So
far, the Commission has taken no position on the Hollings-Hefner
legislation or expressed an interest in reregulating on its own.
Current FCC Chairman James Quello, though, has stated that, "The
fairness doctrine doesn't belong in a country that's dedicated to
freedom of the press and freedom of speech." (Doug Halonen, "Twelve
to Watch in 1993," Electronic Media, January 25, 1993, p. 66.) The
Clinton Administration has not taken an official position on the
Supporters of reviving the fairness doctrine base their argument
on the very same three faulty premises that the FCC and most
judicial rulings have rejected.
Faulty Premise #1: The "scarce" amount of
spectrum space requires oversight by federal regulators.
Reality: Although the spectrum is limited, the
number of broadcasters in America has continuously increased.
Supporters of the fairness doctrine argue that because the
airwaves are a scarce resource, they should be policed by federal
bureaucrats to ensure that all viewpoints are heard. Yet, just
because the spectrum within which broadcast frequencies are found
has boundaries, it does not mean that there is a practical shortage
of views being heard over the airwaves. When the fairness doctrine
was first conceived, only 2,881 radio and 98 television stations
existed. By 1960, there were 4,309 radio and 569 television
stations. By 1989, these numbers grew to over 10,000 radio stations
and close to 1,400 television stations. Likewise, the number of
radios in use jumped from 85.2 million in 1950 to 527.4 million by
1988, and televisions in use went from 4 million to 175.5 million
during that period. ("The Fairness Doctrine," National Association
of Broadcasters, Backgrounder (1989).)
Even if it may once have been possible to monopolize the
airwaves, and to deny access to certain viewpoints, that is
impossible today. A wide variety of opinions is available to the
public through radios, cable channels, and even computers. With
America on the verge of information superhighways and 500-channel
televisions, there is little prospect of speech being stifled.
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. 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.)
Faulty Premise #3: The fairness doctrine
guarantees that more opinions will be aired.
Reality: Arbitrary enforcement of the fairness
doctrine will diminish vigorous debate.
Of all arguments for the reinstitution of the fairness doctrine,
the most inaccurate and insidious is that it will permit a greater
diversity of opinion to be heard. By requiring, under threat of
arbitrary legal penalty, that broadcasters "fairly" represent both
sides of a given issue, advocates of the doctrine believe that more
views will be aired while the editorial content of the station can
remain unaltered. But with the threat of potential FCC retaliation
for perceived lack of compliance, most broadcasters would be more
reluctant to air their own opinions because it might require them
to air alternative perspectives that their audience does not want
Thus, the result of the fairness doctrine in many cases would be
to stifle the growth of disseminating views and, in effect, make
free speech less free. This is exactly what led the FCC to repeal
the rule in 1987. FCC officials found that the doctrine "had the
net effect of reducing, rather than enhancing, the discussion of
controversial h of public importance," and therefore was in
violation of constitutional principles. ("FCC Ends Enforcement of
Fairness Doctrine," Federal Communications Commission News, Report
No. MM-263, August 4, 1987.) Even liberal New York Governor Mario
Cuomo has argued that, "Precisely because radio and TV have become
our principal sources of news and information, we should accord
broadcasters the utmost freedom in order to insure a truly free
press." (Mario Cuomo, "The Unfairness Doctrine," The New York
Times, September 20, 1993, p. A19.)
If the fairness standard is reinstituted, the result will
not be easier access for controversial views. It will instead be
self-censorship, as stations seek to avoid requirements that they
broadcast specific opposing views. With the wide diversity of views
available today in the expanding broadcast system, there is a
simple solution for any family seeking an alternative viewpoint or
for any lawmaker irritated by a pugnacious talk-show host. Turn the
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