Fairness Doctrine

The fairness doctrine was developed by the Federal Communications Commission (FCC) to ensure fairness and balance in broadcasters’ coverage of controversial public issues. Because radio and television broadcasters enjoy a governmental license to use part of the ‘‘scarce’’ broadcast spectrum, they must act in the public interest. The fairness doctrine is one means by which the FCC attempted historically to serve the public interest. The fairness doctrine existed in some form from 1949 until the late 1980s, when it was repealed by the FCC. It had greatest influence between 1962 and 1976.

The fairness doctrine took specific form in rules such as the ‘‘personal attack’’ rule and the ‘‘political editorializing’’ rules that were challenged in Red Lion Broadcasting Co. v. Federal Communications Commission. Under the personal-attack rule, when a person involved in an issue of public interest was attacked during a broadcast, the station was obligated to give him an opportunity to respond. Under the politicaleditorializing rule, when a political candidate was endorsed in an editorial, his opponent had the right to respond.

In Red Lion, the Supreme Court upheld these rules and the fairness doctrine. The Court rejected claims (1) that the FCC lacked statutory authority to implement the fairness doctrine, and (2) that the doctrine infringed broadcaster’s first amendment rights. Responding to the first amendment challenge, the Court observed:

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.

This view of government’s need to regulate broadcast fairness because of medium scarcity has not weathered well over time. In 1985, the FCC released a report concluding that the fairness doctrine did not promote the public interest, that it ‘‘chilled’’ broadcast speech, and that it was effectively obsolescent. Since then, attempts to reinstate some form of the fairness doctrine have failed politically, with greatest opposition coming from members of the Republican Party.

MICHAEL FINCH

References and Further Reading

• Krattenmaker, Thomas, and Lucas Powe, The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream, Duke Law Journal 1985 (1982): 151.
• Logan, Charles, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, California Law Review 85 (1997): 1687.

Cases and Statutes Cited

• Communications Act of 1934, as amended 47 U.S.C. } 301 et seq.
• Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969)