The Return of the Fairness Doctrine – What it Was and Why it Won’t Return
By: David Oxenford,
Wilkinson Barker Knauer LLP
It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate. In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics. This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate). In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech). But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.
First, it is important to understand what the Doctrine covered and what it did not. It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks. It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations. The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance. The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis. In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them. How that was done was left to the station’s discretion, and the FCC intervened in only the most egregious cases.
By contrast, “equal time” or “equal opportunities” stems from a different source in the Communications Act – the Section 315 provisions on the treatment by broadcast stations (and local cable systems) of candidates for public office. Essentially, equal time requires that, if a broadcast station gives one candidate free time, all other candidates can get the same amount of free time (see our article here). But bona fide news and news interview programs are exempt from equal time, and the FCC has taken an expansive view of that exception (see our articles here and here). The rule primarily applies to the sale of time to candidates. If a candidate buys time on a station, the station must be willing to sell each opposing candidate equal amounts of time on the same terms (see our article here). In connection with candidate time, it is strict minute-for-minute equality – unlike what was once required by the Fairness Doctrine. See our Political Broadcasting Guide for more information about the application of the equal time rule.
The Fairness Doctrine was broader in its application, theoretically covering all aspects of a station’s programming, but its application was perhaps felt most in the context of issue advertising. In the case of advertising about controversial issues, where parties in favor of an issue bought time to push their views, and the opponents could not afford to buy time to respond, the station might actually have to give the opponents time – but it was usually only a third or a quarter as much time as the proponents had bought, not strict equality. And the station could choose which opponents to give the time to – the viewpoint, not the spokesperson, was what counted.
The application of the Doctrine in the context of advertising could have profound effects. For instance, the use of the Fairness Doctrine as a weapon against cigarette advertising – requiring that stations give anti-smoking advocates time to talk about the ill health effects of smoking in a ratio of 1/3 or 1/4 of the advertisements that ran for cigarettes – was one of the reasons that broadcasters were willing to accept a ban on cigarette ads, and that the constitutionality of the 1970 legislative ban on smoking ads was never challenged by the tobacco companies.
But while the Fairness Doctrine in theory would seem easy to apply, there were many battles at the FCC about its application, costing broadcasters many thousands of dollars in legal fees over whether what they aired really did give all sides of an issue an adequate opportunity to have their say. More importantly, by its very nature, the Doctrine is a burden on the free speech rights of broadcasters by putting the government in a position where it should never be – deciding what speech should or should not be made.
This constitutional question led in part to the FCC’s 4-0 decision in 1987 to abolish the Fairness Doctrine, a decision that was upheld by the DC Circuit even though the court did not reach the constitutional issue. The demise of various extensions of the Doctrine followed, including the political attack rule and the Zapple Doctrine, which required quasi-equal time (if supporters of one candidate were sold ad time by a station, the station had to sell ad time to supporters of opposing candidates). The Zapple Doctrine was declared unconstitutional in 2014 (see our article here). Even the FCC under Democratic administrations have confirmed the view that the Doctrine was unconstitutional (see our article here from 2011 when the rule was formally purged from the rules of the FCC, during the Obama administration).
Arguments for the return of the Doctrine ignore the constitutional concerns that led the FCC to abolish the Doctrine. The reasoning behind the Doctrine, like that behind so much other broadcast content regulation, was upheld by the Supreme Court in 1969 based on the “scarcity doctrine” – the idea that broadcast spectrum is a scarce resource and that broadcasters who use it are required to act as public trustees and provide programming that serve all elements of their communities. While that may have been the case 50 years ago, the concept of spectrum scarcity seems harder to justify in today’s media landscape when there are all sorts of audio and video competitors to radio and TV – many delivered wirelessly to consumers using different parts of the spectrum that were never subject to content regulation (e.g., when a listener streams a webcast or podcast, they may well be using wireless spectrum that is not subject to content regulation but nevertheless delivers content to consumers that is virtually indistinguishable from content delivered by broadcast stations). Even among broadcasters, there has been an explosion in the number of stations and, through digital multicasting available on TV and FM, the number of program choices available to the consumer has vastly increased. Media scarcity seems to be the least of our problems today.
Even from a practical perspective, the Doctrine is difficult to justify. The Fairness Doctrine requires fairness on all controversial issues of public importance. But sometimes, especially on the complicated issues facing the world today, there are far more than two sides to any issue. Who decides which sides get heard and which don’t? On issues of climate change, racial justice, economic fairness, foreign policy and so many other matters, there is a wide spectrum of positions on almost every issue. Do all get to be heard on broadcast stations – even the most radical and far-fetched?
And who would make such decisions as to which sides deserve access to the airwaves? Even a seemingly obvious determination that certain extreme views should not be given broadcast access contains a value judgment that the government should not be in the business of regulating – whether in these extreme circumstances or in the much closer cases that would arise every day. No one would ever suggest that the government should be able to regulate what content goes on the editorial pages of the New York Times or the Washington Times. No one should be able to dictate that the Atlantic and the National Review present both sides of every issue that they cover. In this modern era with so many alternatives to the broadcast medium, why should broadcasters have a different version of the First Amendment applicable to their speech?
The Fairness Doctrine is often advanced as an easy cure-all for political divisions. But any review of the issue shows that its return would raise far more questions than it would solve. It would put government in a position where it should not be – judging a broadcaster’s editorial decisions as to what should and should not be aired. This has never been the role of the government in our country, and it should not be now. The problems of the country are better solved by wider and more effective communications about the issues of the day, not through government control.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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