The Fairness Doctrine Won't Solve Our Problems--but It Can Foster Needed Debate

The entrance to the Federal Communications Commission headquarters in Washington, D.C. (Photo: Rob Pegoraro/Flickr cc)

The Fairness Doctrine Won't Solve Our Problems--but It Can Foster Needed Debate

Why it’s time to explore the connections among the First Amendment, content regulation and democracy.

The long-departed Fairness Doctrine has returned--at least in the minds of many who love or hate it. Arguably the most famous--and most maligned and misunderstood--media policy ever enacted in the United States, its long, strange history is generally not well known. Yet it holds important implications for growing concerns about disinformation, ownership and control of our news and information systems, the rights of audiences and the future of our democracy.

What would later be called the Fairness Doctrine originated in 1949 at the tail end of a media reform movement whose initial goal--going back to the 1930s--was to carve out a noncommercial sector on the nation's airwaves.

Having lost that battle, New Deal policymakers and activists tried to break up and rein in media monopolies with public interest regulations to curb the worst excesses--from nonstop advertising to a lack of public affairs programming--of a profit-driven, oligopolistic broadcast system.

Although many proponents today see the Fairness Doctrine as a high-water mark of enlightened media policy--and wishfully call for its return--most postwar advocates saw it as a consolation prize in place of stronger regulations that checked broadcasters' political power and kept tighter restrictions on editorializing. Nonetheless, the Doctrine did incentivize broadcasters to be socially responsible and offer the public a range of opinion on important issues.

The Fairness Doctrine has often been conflated with the "equal time" rule for political candidates. But its purpose was more expansive--and more progressive--than simply requiring two sides to a debate. It mandated that broadcasters cover issues of public importance in ways that presented opposing perspectives, operating under a view of free speech that privileged an audience's rights to diverse voices and views over broadcasters' narrower First Amendment protections.

Such content regulations were based largely on the "scarcity rationale." The limited availability of radio and television spectrum justified government-enforced public interest rules on those who received exclusive licenses to the public airwaves. More than simply addressing technical interference issues, this arrangement assumed that the tremendous political power wielded over our core media infrastructures by large commercial firms threatened democratic society by potentially skewing the nation's discourse. Then as now, a handful of corporations dominated the entire media system.

While the Fairness Doctrine's overall effectiveness and enforceability are debatable, it encouraged sensitivity toward programming biases and empowered local communities to hold broadcasters accountable.

A media reform coalition--including grass-roots activists, labor unions and New Deal policymakers--was especially concerned about the combination of highly concentrated corporate power within an extremely commercialized media system. Beginning in the mid-1940s, they witnessed what seemed like a gradual purge of left-leaning radio hosts from the airwaves--oftentimes caused by corporate sponsors withdrawing their support--and they feared the social consequences of giving commercially-driven broadcasters free rein. Although they initially criticized the Fairness Doctrine as an insufficiently strong regulation, many eventually came to see it as an important equalizer.

While the Fairness Doctrine's overall effectiveness and enforceability are debatable, it encouraged sensitivity toward programming biases and empowered local communities to hold broadcasters accountable. Activists used the Fairness Doctrine to help combat racist broadcasting, most notably in the WLBT-TV case when a pro-segregationist broadcaster in Jackson, Miss., was ultimately driven off the air in the late 1960s. The Fairness Doctrine also enabled activists to contest advertising for tobacco and other harmful products. From the 1960s into the '80s, consumer advocates like Ralph Nader saw it as an essential means for publicizing causes in the nation's media.

Over the decades, many conservatives also came to value the Fairness Doctrine. Phyllis Schlafly was a major proponent and used the doctrine to gain media coverage for her Anti-Equal Rights Amendment campaign. Conservative activists like Reed Irvine saw it as a tool for including conservative voices within a media landscape that they perceived as predominantly liberal. Even right-wing groups such as Accuracy in Media and the NRA supported it well into the 1980s.

Certainly not all conservatives championed the Doctrine, seeing it instead as a weapon to be used against them. In one exceptional case in 1973, the Federal Communications Commission declined to renew the radio license of outspoken conservative Christian broadcaster Carl McIntire because of Fairness Doctrine violations. Political elites also tried to exploit the Doctrine to punish adversaries and advance their political agendas, as exemplified by the Kennedy, Johnson and Nixon administrations.

But the Doctrine also protected the public rights of audiences to diverse information. In 1969, the Supreme Court unanimously affirmed the Fairness Doctrine's constitutional basis in itsRed Liondecision, determining that "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Privileging public access to a rich marketplace of ideas over broadcasters' rights was significant--rarely have positive freedoms been so clearly articulated in U.S. legal and policy discourse.

By the 1980s, however, the tide had begun to turn against the Fairness Doctrine as fealty to market fundamentalism and conservative ideology were ascendant. Judges Robert Bork and Antonin Scalia weakened it in a 1986 DC Circuit Court decision. In 1987, the FCC officially repealed the Fairness Doctrine--though it wasn't fully removed from the books until 2011. Congress tried to codify the Fairness Doctrine into law, supported even by many conservatives like Newt Gingrich and Jesse Helms. But President Ronald Reagan vetoed their efforts.

Ending the Fairness Doctrine was one key factor leading to an explosion of right-wing radio programming in the 1990s--though sometimes an overstated one. After Rush Limbaugh, whose rise to stardom catalyzed the expansion of right-wing talk radio, campaigned against reinstating the Doctrine--calling it an attempt to "Hush Rush"--conservatives began deploying it as rhetorical code for regulatory overreach, branding any public interest initiative as "a new Fairness Doctrine." Throughout the 2000s, market libertarians invoked it against the most benign and unrelated media policies, including the Internet safeguard known as net neutrality, calling it "a Fairness Doctrine for the Internet"--a ludicrous claim that Donald Trump also made on Twitter.

Over time, even many liberals began distancing themselves from the Fairness Doctrine. Conservatives had so successfully stigmatized the Doctrine that it had become, at best, a distraction. Furthermore, many activists preferred more structural changes--like ensuring diversity of media ownership and control--instead of content-based regulations.

Today the Fairness Doctrine is even less plausible as a ready-made solution for solving modern media problems. For starters, it pertained only to broadcast media, so extending it to cable outlets would require an entirely new regulatory framework. And it's unfathomable to strictly apply it to social media platforms for numerous legal and practical reasons.

But summarily dismissing the Fairness Doctrine is also mistaken. It not only implicitly validates the libertarian contention that government has no legitimate role in regulating media markets to prevent social harms, it also obscures the broader historical context that shows how the Doctrine was a reasonable, if flawed, attempt to ensure media diversity. Early campaigners sought to prevent broadcasting from becoming saturated by reactionary voices that drove profits but hurt democracy. Their aim was to preempt biased and homogenized programming that typically occurs when corporate monopolies dominate highly commercialized media systems.

Arguments over the Fairness Doctrine often serve as proxy debates for larger issues, including the legitimacy of government's affirmative duty to protect positive freedoms. But regulations that promote diversity aren't tantamount to censorship. Other democratic nations--such as Britain with its impartiality rules--have long relied on similar content regulations without sliding into totalitarianism. All democracies must try to counteract forms of "market censorship" that afflict profit-driven systems, favoring some voices while filtering out others.

Today, like the 1940s, we must confront dangerous concentrations of unaccountable media power and attendant disinformation about public health, elections, insurrections and other life and death issues. Although imposing dubious regulatory corrections onto run-amok commercial systems are of limited utility, new public interest obligations for our digital age could be part of the solution. Ultimately, however, publicly owned and democratized alternatives to profit-driven outlets are a more systemic--and more permanent--fix.

If nothing else, recent events should cause us to reexamine our assumptions about the relationships between the First Amendment, content regulation, corporate power and any hope for a democratic future. Revisiting historical debates about the Fairness Doctrine can help us think through these wicked problems.

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