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
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
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
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
Amy Ridenour is President of
The National Center for Public Policy Research, a Washington,
D.C. think tank. Comments may be sent to [email protected].
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.