"Our massive strategy was to use the
Fairness Doctrine to challenge and harass right-wing broadcasters
and hope the challenges would be so costly to them that they would
be inhibited and decide it was too expensive to continue."
--Bill Ruder, Democratic campaign consultant and Assistant
Secretary of Commerce, Kennedy Administration
"The main thing is the Post is going to have damnable,
damnable problems out of [its Watergate coverage]. They have a
television station...and they are going to have to get it
--President Richard Nixon
Should the federal government mandate "fairness" in
broadcasting? "Yes," say some Members of Congress, including
Speaker of the House Nancy Pelosi, who reportedly said this week
that House leaders would "aggressively pursue" legislation to
reinstate the "Fairness Doctrine." Until it was abolished in
1987, this Federal Communications Commission rule required
broadcasters to air all sides of controversial issues.
At first glance, the rule may sound innocuous. Fairness is,
after all, a basic American value. But as a matter of principle,
any such government controls on media content is anathema to
constitutional guarantees of free speech. And in practice, the
so-called fairness doctrine was deeply unfair.
Dulling Down Broadcasting
Rather than foster full and fair discussion of public issues,
the real effect of the Fairness Doctrine was to discourage
discussion of controversial issues of any kind. It's no coincidence
that such media as talk radio--virtually non-existent while the
rule was in place--flowered after its repeal. Rather than the vast
wasteland of bland muzak-like discussion it was before,
broadcasting-- especially radio--has become a platform for vibrant
and controversial debate on countless issues.
The Fairness Doctrine was developed by the FCC over a long
period, based on its broad authority under the Communications Act
to regulate the airwaves. The rule was first articulated in 1949,
when television was in its infancy and radio meant a handful of AM
stations in each market. In its final form, the rule required
broadcasters to "afford reasonable opportunity for discussion of
contrasting points of view on controversial matters of public
The vagueness of the standard left quite a bit of uncertainty.
What is a "reasonable" opportunity? How many "contrasting" views?
Station managers whose programming ventured too far into
controversial subjects could quite easily find themselves subject
to a fairness doctrine challenge. And even if the challenge
ultimately failed, the cost of defending against it could be
substantial. So the safe route for most was to stay far away from
controversy. As a result, policy discussion on the airwaves for
decades was, for the most part, as bland as cottage cheese.
This "chilling" effect was exacerbated by political abuse of the
system. Politicians of both parties used the doctrine to further
their political ends. Political strategists for Kennedy and
Johnson, for example, consciously used the Fairness Doctrine to cow
political opponents. According to statements from party activists,
there was an explicit strategy to raise the cost of critical
programming, and thus get it dropped entirely. "Perhaps...our
tactics were too aggressive," one party operative is quoted as
saying, "but we were up against ultra-right preachers who were
saying vicious things about Kennedy and Johnson."
The political use of the Fairness Doctrine was brought to new
heights by President Richard Nixon. According to Jesse Walker of
Reason magazine, "private activists directed by the
Republican National Committee regularly filed Fairness Doctrine
challenges against stations whose reporting angered the White
Demise of the Fairness Doctrine
The constitutionality of the Fairness Doctrine was challenged in
the 1969 case Red Lion v. FCC, involving a religious
broadcaster who was fined by the FCC for not providing a person
criticized on the air an opportunity to reply. The Supreme Court
upheld the rule, reasoning that because broadcast frequencies were
scarce, the government may intervene in broadcast media in ways
that would not be allowed toward traditional media, such as
The decision in Red Lion, however, has been subject to
intense criticism.And in 1987, the FCC rescinded the Fairness
Doctrine, finding it to be contrary to the Constitution as well as
bad policy. In its landmark decision, the Commission
We believe that the role of the electronic press in our society
is the same as that of the printed press. Both are sources of
information and viewpoint. Accordingly, the reasons for proscribing
government intrusion into the editorial discretion of print
journalists provide the same basis for proscribing such
interference into the editorial discretion of broadcast
The FCC's decision to rescind the doctrine was later upheld by a
federal appeals court. In so doing, however, the court did not pass
judgment on the constitutionality of the rule and instead relied on
the FCC's policy findings that it did not serve the public
Red Lion is still formally in place. But in years since,
the basic "spectrum scarcity" rationale of Red Lion (and
thus the constitutionality of fairness rules) has become ever
weaker. Not only have new broadcast frequencies--such as the UHF
television and FM radio bands--been put into use, but entirely new
systems such as cable TV and satellite radio have been created,
offering consumers hundreds of channels when before they only had a
handful. And the Internet has made notions of
scarcity almost meaningless.
At the same time, broadcasters--especially radio
broadcasters--became much more willing to air controversial points
of view, in large part because of the repeal of the FCC's fairness
rule. Most notably, talk radio, which had been a relatively rare
format, exploded in scope and popularity. In 1990, there were some
400 stations with a talk show format nationwide. By 2006, there
were more than 1,400 stations devoted entirely to talk formats.
Programming shed its cottage cheese-like character, as
controversial new hosts, such as Rush Limbaugh, gained airtime and
the freedom to express strong opinions and views without fear of
regulatory reprisal. According to the Project for Excellence in
With the [Fairness] Doctrine's repeal, radio shows could become
more one-sided, more free-wheeling, ideological and political. And
it didn't take long. One of the first to gain popularity under the
new rules was a new voice out of California named Rush Limbaugh.
Within a year or two of the new rules, Limbaugh's provocative
denunciations of Democrats became a phenomenon. Stations quickly
began to pick up his syndicated show, and other conservative names
followed his lead. Being controversial seemed a plus.
Not all the changes, of course, were due to the Fairness
Doctrine repeal. Other factors, such as the rise of FM radio, were
at work. But, as documented by economists Thomas Hazlett and David
W. Sosa, the regulatory change had a substantial causal effect.
Many supporters of the Fairness Doctrine are concerned about
this explosion of information because they see it as the wrong kind
of information. Many are frankly concerned about the amount of
"conservative" programming, especially in talk radio, and would
like to see a different balance.
Certainly, conservative-oriented talk radio has been more
successful than left-leaning radio programming. But broadcasting is
only one small part of today's media universe, which includes not
just radio and television broadcasting but print, cable, and
Internet sources. Conservatives have had no lock on opportunities,
even in radio. Programming with a liberal bent, from Mario Cuomo's
show to Air America, has been given opportunities and will get
Moreover, arguments that the Fairness Doctrine is needed because
certain types of media are too conservative, too negative, too
partisan, or too anything actually strengthen the case against the
regulation. Any law that is targeted at media based on the content
of what is being said raises greater constitutional concerns and is
much less likely to pass constitutional muster--and for good
reason. Regulating speech in order to alter its content is exactly
the sort of meddling that the First Amendment is meant to prohibit.
It is simply not the job of politicians to "correct" the mix of
opinions being expressed in the marketplace of ideas, even if--and
especially if--they disagree with those opinions.
The Federal Communications Commission did the right thing 20
years ago in throwing this unnecessary, counter-productive, and
unwise restriction on speech into the regulatory dustbin. It should
be left there. To do otherwise would be dangerous and
James Gattuso is Senior
Research Fellow in Regulatory Policy in the Thomas A. Roe Institute
for Economic Policy Studies at The Heritage Foundation.
Quoted in Thomas W. Hazlett and David W. Sosa,
"Chilling the Internet? Lessons from FCC Regulation of Radio
Broadcasting," Cato Institute Policy Analysis No. 270, March
Red Lion v. FCC, 395 U.S. 367
agency had originally declined to consider the question of whether
the rule was constitutional. In early 1987, however, a federal
court held that the FCC could not enforce the doctrine unless it
considered the constitutional objections. Meredith v. FCC,
809 F. 2d 863 (1987).
Syracuse Peace Council, 2 FCC
Reports 5043 (1987).
Syracuse Peace Council, 867 F.
2d 654 (D.C. Cir. (1989)).
Many believe that due to these developments,
combined with the longstanding legal criticism of the Red Lion
case, were it to be reconsidered today, it would be decided
differently. A study published two years ago by the FCC itself
makes this case convincingly. See, John W. Berresford, "The
Scarcity Rationale for Regulating Traditional Broadcasting: An Idea
Whose Time Has Passed," FCC Media Bureau Staff Research Paper,
March 2005, at /static/reportimages/191F6B71006F2F32F11375637A3B466D.pdf.
Thomas W. Hazlett and David W. Sosa, "Was the
Fairness Doctrine a "Chilling Effect? Evidence from the
Post-deregulation Radio Market," 26 Journal of Legal Studies