The Fairness Doctrine, Part I

JB

Senators Durbin and Kerry have recently raised the possibility of resurrecting the Fairness Doctrine. Senators Thune and Coleman have tried a preemptive strike against it. The right wing of the blogosphere is very much in arms about the issue, fearing that the Democrats are going to reinstate it. There is almost no chance that they will do so in the next two years, and even if they did, President Bush has vowed to veto the bill. Nevertheless, if the Democrats win the White House in 2008 there is an outside chance that the Fairness Doctrine might make a comeback, so I thought I'd say something about it.

The Fairness Doctrine is bad public policy and it should not be revived. That does not necessarily mean that it is unconstitutional, as many critics have charged. In fact it is probably not unconstitutional on its face, but it certainly could be unconstitutional as applied in certain circumstances. In this post, I only want to talk about its policy implications, why it is so easy to evade and why it does little to improve the quality of broadcasting. I'll leave the constitutional arguments to Part II of this series. In Part III I'll suggest what Congress might do if it really wanted to reform our broadcasting system. Critics on the right have charged that the recent attempt by Democrats to resurrect the Fairness Doctrine is an attempt to silence conservative talk radio. If that is so, it is doomed to failure, for reasons I shall describe in a moment.

A bit of history: We have been living without the Fairness Doctrine for about twenty years. The FCC, dominated by Reagan appointees in the 1980s, issued a report in 1985 arguing that the Fairness Doctrine was no longer necessary given the increase in media outlets due in part to cable penetration. The FCC also argued that the doctrine chilled speech and was probably unconstitutional, despite the fact that the Supreme Court upheld aspects of it in 1969 in the Red Lion decision. In any case, the FCC eliminated the Fairness Doctrine in 1987. Congress tried to reestablish it by statute several times in the years that followed, but Presidents Reagan and George H.W. Bush vetoed the bills and their vetoes were sustained.

The Fairness Doctrine, which has its roots in the 1940s, should be distinguished from the Equal Time/Equal Opportunities provisions of the Federal Communications Act, which are statutory. They are part of section 315 of the Federal Communications Act. The equal time/equal opportunities rules require that if a licensee gives the use of broadcast facilities to a qualified candidate for public office, it must give equal time and opportunities to all of the candidate's opponents. If the licensee sells the time to a candidate, it must offer time to the other candidates at the same rate; if it gives away time free, it must offer opponents time for free. There are exceptions for bona fide news events and interviews. The purpose of the Equal Time/Equal Access rules are to prevent broadcast stations from becoming effectively propaganda mouthpieces for particular candidates during election time.

The Fairness Doctrine is both broader and narrower in scope. It is narrower in the sense that it does not require that the licensee actually give the microphone to anyone else, as the equal time provision does. Many people who write about the Fairness Doctrine assume that the Fairness Doctrine requires that licensees let strangers use the station's facilities. That is only true under two sub-doctrines-- the so-called personal attack rules and the political editorializing rules. These are narrowly defined and rarely apply. In general, the Fairness Doctrine does not require this, as long as the licensee covers different points of view. As I'll explain shortly, this feature allows licensees to get around the Fairness Doctrine fairly easily.

The Fairness Doctrine is broader in scope because it applies in many more cases than the Equal Time provisions. The doctrine has (or had) two prongs. The first prong requires broadcast licensees to cover important issues of public concern. The second prong requires licensees to cover contrasting points of view fairly. The first prong was as important to the doctrine as the second. Its goal was to ensure that broadcast licensees did not provide only entertainment, but also contributed to public debate. But in doing so, it had to be an honest broker in its coverage. Originally, under the FCC's Mayflower doctrine, licensees were forbidden from editorializing at all. That prohibition was dropped in the late 1940s and the Fairness Doctrine was adopted as a less restrictive alternative. Henceforth licensees could editorialize if they allowed opportunity for discussion of contrasting perspectives.

By the 1980s, the fairness doctrine had long outlived its usefulness. It is possible that it was good public policy during the period in which there were only a limited number of television stations in each community, although I doubt it. The reason I doubt it was that the fairness doctrine in practice was fairly easy for most licensees to evade and mostly caused them bureaucratic problems.

First, licensees mostly decided for themselves what issues were of public concern. This allowed them to limit the ways in which the doctrine would affect them.

Second, licensees were permitted to decide what "both sides" of the relevant issue were and who would represent those sides. Issues are often multidimensional. Since it would not be possible to cover all aspects of a question, the licensee was given considerable range in choosing what the issue was, what the "reasonable" positions were on an issue, and who would present those positions. Licensees could exclude "extremist" positions or could include them to discredit the side they did not like.

To give only one example, when a reporter covered a controversy, the fairness doctrine did not demand anything more than traditional journalistic neutrality/objectivity. Journalists could present contrasting quotes from sources they themselves chose. Thus, a licensee determined to provide a particular message with respect to an issue could easily frame matters and select spokespersons so as to give a slanted portrayal. They could select only a narrow range of views on a topic and they could pick weak or unsympathetic representatives of positions they did not favor.

Perhaps more to the point, most licensees didn't want to cover public issues very much at all. Rather, they wanted to focus on entertainment and sports, and regarded the Fairness Doctrine as mostly a nuisance.

In practice, the Fairness Doctrine did not pose much of a problem for broadcasters who simply wanted to broadcast entertainment and sports, and whose coverage of contemporary events was broadly and blandly mainstream in their tastes, either liberal or conservative. It was more problematic for a handful of station owners who had a decidedly out of the mainstream point of view and who wanted to use their license to broadcast their views to the exclusion of others. The Fairness Doctrine fit mainstream journalistic practices of objectivity (with all their faults and non-objective elements) like a glove, which was not surprising because the Doctrine was modeled on those developing practices.

What about today, though? The increase in number of media outlets meant that advertiser-driven stations could make money by covering smaller niches and thus appeal to only one side of the political spectrum. This is one reason for the rise of conservative talk radio.

The Fairness Doctrine would probably require a change in formats for conservative talk radio. But it would not necessarily require actual fairness. Nor would it necessarily change the demagogic character of talk radio. Rush Limbaugh might have to invite a series of liberal patsies to give their views, which he could bully, make fun of, or talk past. Or he could offer his account of liberal views, which would no doubt be highly amusing to his audience. A radio version of Fox's Hannity and Colmes would clearly have passed muster under the Fairness Doctrine as the FCC enforced it in the old days, because, after all, there's Colmes, isn't there? It's true that Hannity sometimes treats him as a sidekick, and that he's not very liberal, but he does present contrasting points of view.

Now it's true that, under the Fairness Doctrine, someone like Michael Savage couldn't rant on and on without letting someone get a word in edgewise, but since Savage would be allowed to pick his opponents, it is unlikely that the bottom line message of talk radio would change all that much. It would simply be pitched in a way that preserved a fig leaf of fairness given bureaucratic imperatives from the FCC.

As you can see, given how easy it is to get around the requirements of the Fairness Doctrine, the doctrine is not going to do much to cure the bad behavior we see on the airwaves these days. At most it will cause bureaucratic problems for licensees, and require them to hire a few more personnel. Perhaps it will lead to the hiring of a few liberal patsies and punching bags. So think of it as affirmative action for milquetoasts. But what it won't do is improve the quality of talk radio.

In my next installment, I'll discuss the constitutional arguments for and against the fairness doctrine. It turns out that these arguments are trickier than they might at first seem.

UPDATE: Eugene Volokh has more on the implementation problems with the Fairness Doctrine. He also quotes from Powe and Krattenmaker's study, which, I think, offers the best criticisms of the doctrine as it developed before 1987.
Posted 10:45 AM by JB [link]