In another of his detailed analyses, Aaron Rodriguez dissects the history and legality of this controversial doctrine which may once again appear in the realm of broadcast and perhaps other media. 

1. Synopsis
In 1949, the FCC created the Fairness Doctrine in an attempt to deter broadcasters from using a relatively scarce media resource to monopolize the marketplace of opinion. Today, however, radio frequencies are no longer a scarce media resource. Through newspapers, magazines, and the Internet, information outlets are readily accessible and virtually unlimited. Therefore, the market place of opinion remains diverse and preserved. The Fairness Doctrine has outlived its usefulness, and reviving it in an era when diversity abounds is not only wrongheaded, but it is also unconstitutional as it infringes on the free speech of broadcasters.

2. A Brief Historical Introduction
In the early 1900s, there was no legislation that sufficiently dealt with the power and complexity of “broadcasted” free speech. Apprehensive about such power, Congress passed the Radio Act of 1927, which made the airwaves into a government commodity while creating a new regulatory body called the Federal Radio Commission (FRC) to oversee it.

This new legislation empowered the FRC to grant licensure on the basis of serving the “Public interest, convenience, or necessity." What exactly was the public interest? The meaning was not yet defined by Congress, but the language of the Radio Act provided the FRC with a free hand to create their own. And shortly after, they did exactly that in a released statement: 

"The public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies to all discussion of issues of importance to the public." 

Throughout the 30s, this principle of "fair competition" was more of an underlaid credo than it was an enforced policy. But in 1940, the FCC took a major step backward by promulgating The Mayflower Doctrine. This doctrine stated that the FCC had the authority to revoke broadcasting licenses to stations that “editorialized” or “colored” the news. The principle of fairness now meant something more than "fair competition" and turned into something like ideological neutrality. According to Time Magazine, the Mayflower Doctrine created a visceral reaction in radio industry giants who hammered away at the FCC for an infringement of their free speech. Other left-wing groups, however, like the A.F.L and the C.I.O sided with the FCC arguing that “broadcasting was a public trust and should, therefore, be impartial.”

Nine years later, the FCC "re-examined" the Mayflower Doctrine. They discontinued it and replaced it with a newer and more modern policy called The Fairness Doctrine. This doctrine specified that broadcasters could no longer be penalized for editorializing. Instead, it required radio and television broadcasters to offer “reasonable opportunity for the discussion of conflicting views of public importance.” To follow the tally, the fairness principle went from providing "fair competition" to presenting "ideological neutrality" to affording a "reasonable opportunity" to present the other side.

The FCC knew it overstepped its bounds. And they reversed their 1940 decision for a more improved policy. In 1963, more than a decade later, the FCC elaborated on their "reasonable opportunity" principle by adding a "personal attack rule." This rule specified that those who were attacked over the airwaves must be notified and given a reasonable opportunity to respond. This refinement would soon find itself before the Supreme Court.

In November of 1964, Red Lion Broadcasting aired a 15-minute radio program that criticized a New York journalist. Rev. Hargis claimed that Fred Cook lost his job at a New York newspaper for fabricating a story and subsequently joined a communist-affiliated publication for new employment. Under the attack rule of 1963, Cook demanded free airtime to reply. Red Lion Broadcasting refused to grant free airtime, but offered Cook the same rate given to Reverend Hargis for a reply. Cook refused the offer and brought the matter to the FCC for adjudication. The FCC ruled in Cook’s favor and ordered the station to provide Cook with free airtime to respond to the attacks. Red Lion Broadcasting appealed the decision and in 1969, the case went to the Supreme Court.

In the case known as Red Lion Broadcasting vs. FCC, the Supreme Court gave validity to the Fairness Doctrine and ruled against Red Lion Broadcasting. Justice Byron White stated,

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.

In 1974, a case of similar principles went to the Supreme Court when the Miami Herald newspaper refused to publish a reply to an editorial that was critical a candidate for public office. Ironically, the case was not based upon the FCC’s Fairness Doctrine, but rather upon a Florida statute that granted candidates the right to equal space to respond to criticisms or attacks.

In Miami Herald Publishing Co. vs. Tornillo, the Supreme Court ruled in the favor of the Miami Herald to editorialize without providing space for replies. Chief Justice Burger’s rationale was clear: requiring a newspaper to provide column space and resources for every response deemed necessary would ultimately diminish the extent and variety of public debate.
Justice Burger stated,

Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate . . . It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

In 1985, under the Reagan Administration, the FCC re-examined the Fairness Doctrine and authorized a study to determine its net effect on broadcasters. The study concluded that the doctrine had out-lived its usefulness in serving the public interest. Instead of enriching public debate by providing a diversity of opinions, it instead caused a “chilling effect” on a broadcaster’s ability to discuss controversial issues.

In 1987, the D.C. Circuit validated the FCC’s conclusion and stated,

The conclusion was significant. In the case of Miami Herald Publishing Co. vs. Tornillo, the Supreme Court found that applying “fairness” to the print media “dampens the vigor and limits the variety of public debate.” The FCC used the same rationale when it issued a statement that the Fairness Doctrine “had the net effect of reducing, rather than enhancing, the discussion of controversial issues of public importance.”

The ruling of the Supreme Court of 1974 and the FCC conclusion of 1987 paved the way for discontinuing the Fairness Doctrine. The FCC's final verdict was that government intrusion into the editorializing process of print or broadcast media subdues the extent and variety of public debate and that the “fairness” principle no longer applied due to the explosive growth of information outlets.

A year after the FCC’s decision, a democrat-controlled Congress passed a bill attempting to codify the Fairness Doctrine. By making the FCC policy into law, it would force the FCC to reinstate their internal policy. However, President Reagan vetoed the bill. In 1991, a democrat-controlled Congress again attempted to codify the Fairness Doctrine, but it fell short at the threat of President George H.W. Bush’s threatened veto.

3. A Second Look at the Fairness Doctrine
In the 1920s, the advent of radio broadcasting presented a quandary for the federal government. Because radio frequencies or wavelengths were a scarce public commodity, the government decided to institute fairness policies designed to neutralize the threat of political radicalism or a monopoly of opinion via radio broadcast.

In 1964, the Fairness Doctrine was tested before the Supreme Court. Justice Byron White stated that the scarcity of radio frequencies had obligated the government to put restraints on licensees in order to protect the viewers from an unconditional monopoly. And since the Court still viewed radio frequencies to be relatively scarce in the 60s, the Court ruled in favor of it. However, the Court warned that if the Fairness Doctrine were ever found to intimidate broadcasters to where it had “a net effect of reducing rather than enhancing the volume and quality of coverage”, the constitutional implications would need to be reconsidered.

Interestingly, the Supreme Court reconsidered the doctrine’s application not to radio broadcast, but to the print media. In 1974, Justice Burger stated that government-enforced right of access to newspapers inescapably "dampens the vigor and limits the variety of public debate.”

A lot has changed since 1949. According to the National Association of Broadcasters, when the Fairness Doctrine was first conceived, there were only 2,881 radio stations nationwide. When the Supreme Court ruled in favor of the Fairness Doctrine in 1964, there were only 4,300 radio stations. By 2004, the number of radio stations surged to 13,500. Clearly, the scarcity of radio frequencies is no longer the same concern that it was in 1927. There is no shortage of competing viewpoints in newspapers, television, radio, or the Internet. Justice White’s principle of scarcity no longer validates the use of the Fairness Doctrine.

In fact, there is good reason to believe that scarcity of a public good, as a means to justify a tighter restriction of free speech, was wrongheaded from the start. All economic goods are scarce, some more than others. Using scarcity as a criterion for government intrusion provides a slippery slope that only serves to favor government control. Therefore, Justice Burger’s concern that government intrusion will only damper the vigor and variety of public debate ought keep us focused on the dangers of using government to police ideological fairness.

4. Why Revive the Fairness Doctrine Now?
Just four years ago, Democrat Congresswoman Louise Slaughter introduced the Media Act of 2004 in an attempt to codify the Fairness Doctrine, but it died in the House. In 2007, Republican Congressman Mike Pence introduced the Broadcaster Freedom Act. If passed, this bill would permanently disable the FCC from having the authority to resurrect the Fairness Doctrine. However, not a single House Democrat signed his petition, which suggested to Republicans that there was a renewed interest in reviving the doctrine sometime in the future.

In June of 2008, House Speaker Nancy Pelosi sparked controversy and reinvigorated the issue by expressing a need to resurrect the doctrine while in an interview with the Christian Science Monitor. Speaker Pelosi was cautious not to elaborate too much on the issue, but Congresswoman Louise Slaughter was not so shy in her interview with Bill Moyers in 2004.
When discussing Talk Radio giant Rush Limbaugh, Slaughter expressed that he was "dominating America" and created "a waste of good broadcast time." When it was noted that Limbaugh’s listeners would beg to disagree, Slaughter stated that they didn’t have a choice because there was nothing else to listen to.

This, of course, was patently false. Moyers answered by stating there was a profusion of media outlets available today besides talk radio. Congresswoman Slaughter responded sharply,
Yes. But we don't have all those people lining up to discuss what's going on, what's happening in our country. Frankly, I want every American, every single one, to understand what's happened here. We were able to stop some consolidation last year. But the FCC was intent on simply allowing three or four corporations to own it all.

Slaughter’s response was revealing. When Moyers pointed out there were no shortage of media outlets outside of radio, Slaughter didn’t deny it. When Moyers asked her what her bill proposed to do, she said,

So far, it just reinstates [the fairness doctrine.] But you know, I've been giving some thought to it this week. I will in no way do anything to hurt the first amendment. I'd die for it. I certainly don't want to do anything about censorship or anything. I simply want equal time.

Congresswoman Slaughter’s comment betrays her own misapprehension. The Fairness Doctrine was never intended to enforce “equal time.” To the contrary, the Fairness Doctrine was introduced precisely to do away with equal time. Remember, the Fairness Doctrine corrected the “equal time” clause instituted by the earlier Mayflower Doctrine. Slaughter and liberals like her don't understand that the right to free speech wasn't granted to us to make everyone's voice equally heard. Demanding that the government control broadcasting to enforce equal time would clearly harm our First Amendment guarantee.

Several Supreme Court decisions specified that the scarcity of public goods has obligated the government to restrict licenses to prevent monopolies. But there is no longer a scarcity of radio frequencies, nor is there a demonstrative monopoly by any single broadcasting corporation. Clear Channel, CBS Radio, and Citadel Broadcasting are the three largest conglomerates that have a share in an intense competitive market. Each of these media conglomerates offer radio programming that provides a wide array of ideological views. Therefore, the marketplace of opinions is veritably preserved.

Pelosi and Slaughter may not like the imbalance between conservative and liberal radio programs, but there is little effort by either of them to level out the dominance of liberalism in the print media. Make no mistake about it, re-instituting the Fairness Doctrine is not about fairness. It's about controlling the means to disseminate ideological information. Soon the Fairness Doctrine will be brought to the Supreme Court for a final verdict. And they must decide that the "scarcity" justification used in the 20s to exact fairness principles on broadcast media no longer exists. And therefore they must grant broadcast media with the same Constitutional protections enjoyed by newspapers and magazines.