01 Dec 2002 The Fairness Doctrine: Dead, and Justly So

The Fairness Doctrine isn’t fair and doesn’t work. Furthermore, it most likely is unconstitutional.

Sure, the Fairness Doctrine, which until its 1987 repeal required radio and television broadcasters to cover controversial issues with balancing views, sounds good. So those who want the Federal Communications Commission (FCC) to reinstate it ask: why not broadcast both sides of every issue?

For one thing, very few issues have just two sides.

Take, for example, the issue of permanently repealing the federal estate tax. If a radio station program director allows one of his on-air personalities to editorialize in favor of a permanent repeal, essentially a conservative position, what’s the other side? If politics were as straightforward as Fairness Doctrine proponents like to think, the obvious answer would be opposition to the permanent repeal. However, that position maintains the status quo, which is President George W. Bush’s ten-year temporary estate tax reduction plan. That’s a conservative position as well.

If our mythical program director decides fairness requires broadcasting the liberal position, he’s still stymied. Some liberals want to increase the estate tax. Others are content to let Bush’s temporary reduction expire as scheduled at the end of the decade. Still others want to counter conservative calls for estate tax reduction with an appeal for other tax cuts, figuring that it is politically unviable for liberals to oppose all tax reduction.

What’s a program director to do? The only thing he can do is to stick to bland issues that engender no controversy – to stop discussing the issues people care about most.

In a nutshell, that’s why the FCC decided to repeal the Fairness Doctrine, saying:

“We no longer believe that the Fairness Doctrine, as a matter of policy, serves the public interests. In making this determination, we do not question the interest of the listening and viewing public in obtaining access to diverse and antagonistic sources of information. Rather, we conclude that the Fairness Doctrine is no longer a necessary or appropriate means by which to effectuate this interest. We believe that the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming occasioned by the enforcement of the doctrine unnecessarily restricts the journalistic freedom of broadcasters. Furthermore, we find that the Fairness Doctrine, in operation actually inhibits the presentation of controversial issues of public importance to the detriment of the public and in degradation of the editorial prerogative of broadcast journalists.”1

The FCC wasn’t staking out an extreme position. The U.S. Supreme Court nudged it along. In 1974’s Miami Herald Publishing Co. v. Tornillo (418 U.S. 241), writing for a unanimous court, Chief Justice Warren Burger wrote, “government-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.'”2

In footnotes 11 and 12 to 1984’s FCC v. League of Women Voters of California (468 U.S. 364), which struck down a federal ban on editorializing by noncommercial stations receiving federal funding, the court’s majority decision by William J. Brennan, a celebrated liberal jurist, noted FCC concerns that the Fairness Doctrine was “chilling speech” and said the Supreme Court would be “forced” to revisit the constitutionality of the doctrine if it did have “the net effect of reducing rather than enhancing speech.”3

Citing the same case, the ACLU has pointed out that the federal government may not make its support – in this case, the awarding of a broadcast license – contingent on the surrender of one’s First Amendment, or any other, constitutional rights.4

Much support for reinstating the Fairness Doctrine comes from those who believe talk radio is too “right wing.” They believe reimposition of the Fairness Doctrine will get some conservative talk hosts off the air.

These folks should remind themselves that when the FCC discarded the Fairness Doctrine in 1987, Newt Gingrich and Jesse Helms immediately voted for a bill to reinstate it. Not everyone believes the Fairness Doctrine would help the left.

The best way to minimize the influence of radio hosts of any political persuasion is to rebut them, not silence them.

Thomas Jefferson once wrote: “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”5 Whether promoted by Newt Gingrich or frustrated left-wing activists, the Fairness Doctrine is a bad idea.

Amy Ridenour is President of The National Center for Public Policy Research, a Washington, D.C. think tank. 

Footnotes:1 As cited in “Broadcasting Fairness Doctrine Promised Balanced Coverage,” press release of The Wisdom Fund, July 25, 1997, downloaded from the Internet at http://www.twf.org/News/Y1997/Fairness.html on December 16, 2002.
2 For the text of the decision in Miami Herald Publishing Co. v. Tornillo (418 U.S. 241), go to http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/418/241.html.
3 For the text of the decision in FCC v. League of Women Voters of California (468 U.S. 364), go to http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=468&page=36.
4 American Civil Liberties Union Memorandum of July 16, 1999 on the Franks/Pickering Amendment on Internet Filtering, downloaded from http://www.aclu.org/Cyber-Liberties/Cyber-Liberties.cfm?ID=8972&c=55 on December 16, 2002.
5 Thomas Jefferson, Letter to Dr. James Currie, 1786, downloaded December 16, 2002 from the Electronic Text Center of the University of Virginia Library at http://etext.lib.virginia.edu/etcbin/foleyx-browse?id=Press,%20Freedom%20of.