The Fairness Doctrine and Civil Rights

AP- Nancy Pelosi and members of 111th Congress

Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for the redress of grievances.
~ Proposed Bill of Rights, James Madison 14 Sep 1789

In the mid to late 20th century a great many technological
advancements changed American society. None had greater impact than the advent of Radio and Television, and its widespread use. It created the opportunity for a far greater dissemination of information, from the factually correct and incorrect, to the biased and unbiased, on a scale never before seen in history.

As reported by Time Magazine's Dan Fletcher, in the era surrounding 1949 lawmakers became concerned with the only three media (television and radio) outlets of the day, ABC, CBS, and NBC, using their platforms to express bias in their reporting of the news of the day. In an effort to prevent this, congress in 1954 backed the policy of The Fairness Doctrine. “The Fairness Doctrine, which mandated that broadcast networks devote time to contrasting views on issues of public importance, was meant to level the playing field” (Fletcher). Given the limited amount of information sources available to the public, this was likely a good use of the Fairness Doctrine. The Supreme Court in 1969’s Red Lion Broadcasting Co. v. FCC backed the doctrine, stating that broadcasters had no exclusive right to the airwaves they operated on according to the First Amendment. The Fairness Doctrine would be enforced by the FCC until 1987 when the FCC would repeal it altogether (Fletcher). The FCC based its decision on a conclusion that the Fairness doctrine was not in the best interests of the public and one court case in particular, Syracuse Peace Council vs. FCC, where the Doctrine was finally found to be unconstitutional in the DC District Court in 1989 (Alt Law). The conditions that prompted the FCC’s decisions remain the same today, if anything, the availability of information across the spectrum is even greater than it was in 1987, providing even less justification for its reinstatement.

Since that time, the doctrine would regularly be brought up by congress in an effort to codify it; however, it would not become law. Instead presidents Ronald Regan and George H.W. Bush would threaten veto’s, ending the attempts (Fletcher). The arguments for and against the doctrine vary over time, but fall into two general categories. Those who want to reinstate the doctrine with the stated goal of forcing broadcasters to air opinions from "both" sides of the issues, and those who believe requiring broadcasters to do so, goes against the letter and spirit of the constitution. In the time since the creation of the Fairness Doctrine, the argument has become an ideological one. Democrats push for its reinstatement; Republicans insist upon its unconstitutionality.

Democrats appreciate the doctrine for several reasons; however the greatest appears to be rather specific. As reported by Bethany Stotts for Accuracy in Media: “In his Human Events article, [John] Gizzi recounted his conversation with Pelosi regarding the Pence Bill, [which would have permanently prevented the return of the Fairness Doctrine]

‘So I don’t see it [the Pence bill] coming to the floor,’ Pelosi said.
‘Do you personally support revival of the ‘Fairness Doctrine’? I asked.
’Yes,’ the speaker replied, without hesitation.” (qtd. in Stotts).

Ms. Pelosi is the Democrat Speaker of the House of Representatives and in general sees the doctrine as an opportunity to quiet conservative media, the opposition, which has been critical of Democrat policies for decades, a true thorn in their sides. The argument most commonly used to justify the return of the Doctrine is the equitable hearing of both sides. The reality however, results in threats and intimidation. The most recent examples given for the reinstatement of the doctrine include specific radio personalities, which leads to the conclusion that the doctrine is meant to have specific targets, those with dissenting opinions. Stotts further reports at the time of this article (June 2008) two of the four current FCC commissioners favored the return of the doctrine, it would only take President Obama appointing a third to the commission for the Doctrine to be reinstated without a vote. This is of some concern given the vocal criticism of the White House against specific conservative talk show hosts such as Rush Limbaugh.

The apparent current target of the Fairness Doctrine, conservative talk radio, is attractive to conservative listeners for the simple reason it broadcasts their point of view, as it already exists. It currently provides an opposing viewpoint to that of the current government. Among Republicans, the Fairness Doctrine is seen as forced ideological indoctrination as they believe the rest of the Main Stream Media to be decidedly left leaning. Republicans believe conservative AM talk radio to be one of few sources of broadcast news representative of their beliefs, and are very concerned about losing what they consider to be a sanctuary, as well as a source of news. Republicans see the doctrine as a deliberate attack on their beliefs, both in a constitutional sense, and in a real world - regulate the broadcasters - form of censorship.

There is reason to be concerned that the Fairness Doctrine violates first amendment rights. There are many who believe the concept of government forcing media to offer opinions contrary to that broadcaster’s point of view as being very dangerous territory, regardless of political identification. Peter Kohler in his article “The unfairness of the ‘fairness doctrine’” illustrates how the presence of a federally mandated Fairness Doctrine opens up broadcasters to threats and harassment should they broadcast facts or opinions contrary to the philosophy of the current holders of power, or by political foes. Broadcasters would be threatened with the loss of their licenses should they not offer content with opposing viewpoints (Kohler). Certainly there is historical evidence of this, up to and including the legal case in the District Court of Washington DC, Syracuse Peace Council vs. FCC which was the ultimate demise of the Doctrine (Alt Law).

This brings us to a very important question, is the Internet a form of Broadcast? With the advent of the citizen journalist and internet blogs, a full spectrum of opinion and fact is readily available; however in an environment where radio broadcasts can be regulated, the uncertainty in the definition of what the internet is has become a crucial question. Is the internet a form of broadcast similar to radio, where broadcasters have no rights to the airwaves they broadcast on and therefore subject to regulation? Or is it not?

Currently the internet in the United States is unregulated. However, with the reintroduction of a Fairness Doctrine, would that change? Would internet blogs and other news oriented websites be forced to alter content to “balance the scales”, because of websites accessible by hand held devices and cell phones (today’s hand held transistor radios), now common in America? Is this a form of Broadcast? As with radio, no one owns the wavelengths these broadcasts are made on. A return of the Fairness doctrine could easily open the American public to widespread censorship, where those with the money and influence could suppress any given opinion. The law of unintended consequences is one that must be taken into account when considering reinstatement of this policy.

The potential consequences of the Fairness Doctrine in today’s modern communication age are not easy to pin down. Certainly it would give the Government power over information media. It would open up broadcasters to threats, harassment, lawsuits and potentially the loss of their business regardless of political ideology. What should be of great concern to all Americans is this; could the Fairness Doctrine be used deliberately to hurt any given sector of the information market? The answer is yes. Regardless of ideological perspective, this alone makes the Fairness Doctrine an unethical and unconstitutional use of Federal government power, and creates great potential for misuse.

The Fairness Doctrine was initially introduced as a tool to level the playing field, now it appears again as a tool in quieting opposing views; a direct challenge to the Constitution, our Civil Rights, and the ethical intent of our Founding Fathers who believed that government should be the servant of the people, not the master of them. Regardless of political ideology, we must hold to the ethical principle that all opinions have certain validity, and all people the equal right to express those opinions without regulation. Should government become the regulator of opinion, all Americans will suffer.

Cited Articles:

Alt Law Beta, "SYRACUSE PEACE COUNCIL, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION." Alt Law Beta. February 10, 1989. United States Court of Appeals for the District of Columbia Circuit. 28 Mar 2009 <http://www.altlaw.org/v1/cases/421365>.

Fletcher, Dan. “A Brief History of the Fairness Doctrine." Time 20 Feb 2009 14 Mar 2009 <http://www.time.com/time/nation/article/0,8599,1880786,00.html>.

Kohler, Peter. "The unfairness of the 'fairness doctrine'. (Cover story)." Masthead 2009: 8+. Academic Search Premier. EBSCO. [American Military University], [Charles Town], [WV]. 5 Mar. 2009 <http://search.ebscohost.com.ezproxy.apus.edu/login.aspx?direct=true&db=aph&AN=36468903&site=ehost-live>.

Madison, James. "Madison's Copy of the Proposed "Bill of Rights"." American Treasures of the Library of Congress. 16 Jun 2006. The Library of Congress. 14 Mar 2009 <http://www.loc.gov/exhibits/treasures/trt013.html>. Proposed Articles of Amendment. New York: Thomas Greenleaf, 14 Sep. 1789.

Stotts, Bethany. "Pelosi Supports Return of Fairness Doctrine." Accuracy in Media 26 Jun 2008 14 Mar 2009 <http://www.aim.org/aim-column/pelosi-support-return-of-fairness-doctrine/>.