The Fairness Doctrine

American thought and American politics will be largely at the mercy of those who operate these stations, for publicity is the most powerful weapon that can be wielded in a republic. And when such a weapon is placed in the hands of one person, or a single selfish group is permitted to either tacitly or otherwise acquire ownership or dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.

— Rep. Luther Johnson (D.-Texas), in the debate that preceded the Radio Act of 1927

The radio act of 1927 mandated the Federal Communication Commission’s (FCC) forerunner, the Federal Radio Commission, to grant broadcasting licenses in a manner as to ensure that these licensees served the “public convenience, interest or necessity”. What Representative Johnson understood was the power of propaganda to stifle democracy and the necessity of a well informed general public to nurture it. What most Americans fail to remember is that the American Public owns the airwaves and the protection of these airwaves so that they can be utilized to advance the public good is the mandate of regulatory bodies such as the FCC. The free and unbiased sharing of information is probably a utopian ideal but the effort to promulgate this ideal is the best protection the American public has against the proven effectiveness of organized propaganda.

The FCC is an independent agency of the US government that was created by congress in 1934 to replace the Federal Radio Commission which had previously been charged with oversight of the publicly owned airwaves here in the US. The basic operating principle for the FCC was contained within its charter to regulate radio use “as the public convenience, interest, or necessity requires.” The mandate was necessarily broad to encompass an industry that was growing in both size and importance as radio became the biggest megaphone with which to speak to the American public and there were widespread concerns over the possibility of propaganda being used to advance political positions as was currently underway in much of Europe at the time. From the very beginning, the ideas surrounding the powers of the FCC was aimed at protecting the American public’s right to information and avoidance of any private entities ability to monopolize the airwaves which were publicly owned. It was well recognized that such a monopoly would enable censorship by omission. In other words, if an entity owned all the radio stations it could virtually eliminate the spread of information inimical to its interests whether they be political, financial, or both. One can easily see that that this fear was well grounded in reality as this was largely the methodology that Hitler used to take over Germany just a few years after the formation of the FCC.

Through much of this century the FCC struggled with finding the proper balance between freedom of speech and the idea that government regulation could lead to censorship. It was in this spirit that the FCC came up with a policy formulation first known as the Fairness Doctrine. This doctrine called for broadcasters to show “due regard for the opinion of others.” In 1949 the FCC adopted this doctrine as a formal rule. In 1959 Congress amended the Communications Act of 1934 to formalize this doctrine into law, rewriting Chapter 315 (a) in this act to read as follows: “A broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance.”

The basic premise behind the Fairness Doctrine was built on the fact that the American public owned the airwaves themselves and the FCC, as a regulatory agency of the American public, was in charge of regulating who had licenses to broadcast over these airwaves. In other words, the FCC saw itself as a trustee of a public resource and insisted that licensees who used these airwaves accept public interest obligation in exchange for their usage of the airwaves. The Fairness Doctrine itself, as one of these obligations, was simply meant to insure that a variety of views be presented; not just the views of the ownership of the license to broadcast. The Fairness Doctrine had two main provisions. The first provision stated that a licensee must devote at least a part of their broadcast time to matters of controversial public interest. The second provision stated that the licensee must also air contrasting views concerning those matters but it gave licensees wide leeway as to how that was to be done.

The Fairness Doctrine was one of the two main prongs of an effort to ensure the public’s interests were served. The second prong of this effort were limitations over how many such licenses in a given market area any one entity might hold. By controlling licenses according to these two mandates the FCC was charged with making sure the public’s interest in having the accurate information necessary to be an informed voting populace was served. I will get back to this second prong in my next post.

In actual operation the FCC’s enforcement of the Fairness Doctrine was a decidedly laissez faire approach. Contrary to what Rush Limbaugh or any one of numerous right wing ideologues regularly preaches when the Fairness Doctrine comes up it was not government censorship in any way at all. In practical terms citizen groups or private organizations would petition licensees for fair representation if they detected what they perceived to be an unfair amount of emphasis placed upon one side on an issue. The broadcast entity would then attempt to redress these grievances by apportioning time for these opposing viewpoints to be heard. There was no 50/50 rule proscribing that each licensee or broadcaster had to have equal amounts of liberal and conservative slanted views. There were no FCC censors monitoring the airwaves threatening to remove a station’s license for unequal reporting. If a private organization or citizen’s group was not satisfied with the response of their complaint or if the station itself disagreed with the complaint either was free to petition the FCC to look into the matter. The FCC retained the right of renewing broadcast licenses and licensees accordingly made every effort to placate the presenters of such enquiries. “Reasonable opportunity for presentation of opposing points of view” was the relevant phrase used in arbitrating such issues.

In such instances, the FCC considered prime time vs. less popular time on the air as well as total time allotted to each viewpoint but the main emphasis was on omission of opportunity. In other words under the Fairness Doctrine a station could spend as much as five times more time and effort presenting any viewpoint over another without violating the principle according to the FCC but it could not completely omit on viewpoint in favor of another. In actual practice over the 26 years the Fairness Doctrine was in place there is only one instance of a licensee having the licenses not renewed for violating the Fairness Doctrine for the simple reason that it was a decidedly lax guideline based upon the principle that stations could not practice totalitarian propaganda techniques. It was never intended to guarantee fair and balanced reporting, only as a buffer against unvarnished propaganda on issues that impact the public interest.

Inevitably, such a formalized guideline will run into legal challenges and this is exactly what happened with the Fairness Doctrine after Congress made it law in 1959. In 1969 Red Lion Broadcasting v. FCC made it to the Supreme Court. In this case in a unanimous decision the Supreme Court decided in favor of the FCC and against the idea that the Fairness Doctrine was antithetical to First Amendment free speech rights. It is worth looking at this opinion to understand the issue in a little more detail.

In the first Supreme Court Justice Byron White writing the unanimous opinion of the court addressed the issue of public obligation by broadcasters. In response to the idea that broadcasters were protected under the First Amendment so that they could broadcast whatever they wanted White pointed out that since the airwaves are a limited media owned by the public, it is the public’s right to information that is important:

This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in 326, which forbids FCC interference with "the right [395 U.S. 367, 390] of free speech by means of radio communication." Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. See FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940); FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 361 -362 (1955); 2 Z. Chafee, Government and Mass Communications 546 (1947). It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press v. United States, 326 U.S. 1, 20 (1945); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74 -75 (1964). See Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965). It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.

White later goes on to further explains the courts views on the subject with the following:

It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.

White later discusses the position of the licensee that the widespread availability of broadcasting spectrum invalidates the need for regulatory oversight by the FCC with the following:

Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest.

With Congressional formalization as law and Supreme Court guidance that the Fairness Doctrine was not only Constitutional but necessary to protect the First Amendment rights of the public it is hard to see how this doctrine was struck down. As a public necessity and one of the basic supports for the democratic ideal of an informed populace it strains the imagination how such a guideline could come to be seen as censorship only 20 years later but that is exactly what happened.

In 1980 Ronald Reagan was elected president. Coming into office with an army of anti-regulation free market exponents it was not surprising that Reagan’s appointee as the new head of the FCC, Mark Fowler, was not an exponent of government regulation of the airwaves. In a move repeated in many other branches of government regulatory agencies the fox was indeed put in charge of the henhouse. Fowler had been a broadcast industry attorney who had spent much of his career fighting against the decisions of the FCC and suddenly he was now in charge of the agency. Fowler sneered at the notion that broadcasters bore social responsibilities to ensure democratic discourse. Even though such ideas were supported by numerous Supreme Court decisions and current Congressional laws Fowler suggested they were nonsense. “The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants,” Fowler said. In Fowler’s view television was “just another appliance—it’s a toaster with pictures,” he stated, “we’ve got to look beyond the conventional wisdom that we must somehow regulate this box.” Contrast this view with 60 years worth of careful stewardship of the public airwaves as one of the basic tenets of a democratic society and you can easily see the difference between a businessman and a public servant.


With Fowler’s appointment as the head of the FCC the Fairness Doctrine was a dead letter issue. The FCC no longer enforced compliance or responded to requests to arbitrate complaints. As much as Fowler would have liked to remove the Doctrine statements from the FCC charter this was a little stickier situation since Congress had formally legislated it into the statute and the Supreme Court had ruled that it was not only Constitutional but necessary for the protection of the First Amendment principles. It was up to two Reagan appointees to the DC Circuit court of Appeals to do away with the statute which they promptly did in 1986 with a nice bit of legal sidestepping that never addressed the issue formally. Judge Robert Bork and Judge Antonin Scalia ruled in a 2-1 decision that Congress had not actually made the doctrine into law in 1959. Judge Bork wrote:

“We do not believe that language adopted in 1959 made the Fairness Doctrine a binding statutory obligation,” because, he said, the doctrine was imposed “under,” not “by” the Communications Act of 1934.

According to Bork and Scalia’s twisted interpretation the FCC was not required to enforce the Doctrine but it could if it wanted to. Somehow in their opinion the wording of “under” vs. “by” made it possible for the FCC to decide if it wanted to enforce the Doctrine or not even though previous Supreme Court decisions had ruled otherwise. In early 1987 former Reagan presidential aide and newly appointed FCC commissioner Dennis R. Patrick used this opinion to justify formally revoking the Fairness Doctrine from FCC guidelines. In less than 7 years the Reagan Administration dismantled 60 years worth of carefully crafted decisions by the best legal minds in America to equate broadcasting with toasters.

Less than a year later former FCC commissioner Nicholas Johnson framed the effort to bring back the Fairness Doctrine, “It is a struggle for nothing less than the possession of the First Amendment; who gets to have and express opinions in America.” Even though a law to reinstate the Doctrine passed both houses of Congress that year it was promptly vetoed by Reagan. Another attempt to resurrect the Doctrine ran out of steam in 1991 when Bush senior promised a veto if it got to his desk. Control of the national media by those who have the means to buy broadcast licenses is a valuable commodity it seems. After all, how else will the Republican Party manage to continually convince the very people they are fleecing to vote for them if broadcasters are forced to air viewpoints that point this out.