Can the Fairness Doctrine be Renewed?

Can the Fairness Doctrine be renewed? I do not believe so. The Federal Communications Commission (FCC) had long required that broadcast stations (both radio and television) to tell both sides of issues. The Regan administration stopped the practice of the Fairness Doctrine but Democrats have threatened to bring it back. The Fairness Doctrine was founded in the early days of radio and was never challenged until 1969 in Red Lion Broadcasting v. FCC. The Warren Court upheld the Fairness Doctrine and that precedent would have to be overturned and that will not be an easy task. First, let’s examine what the Court said in Red Lion and secondly, let’s evaluate a similar case decided just five years later (1974) by the Burger Court: Miami-Dade Herald v. Tornillo.

First, let’s look at the logic behind the Red Lion decision. In this case, during a 1964 radio broadcast, WGCB in Pennsylvania had a 15 minute piece criticizing Fred J. Cook and his book: Goldwater: Extremist on the Right. The broadcast essentially labeled Cook as a communist sympathizer. Since this “constituted a personal attack on Cook; Red Lion had failed to meet is obligation under the fairness doctrine to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time.” While Red Lion contested “the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they chose from ever using the frequency.” However, the Court held “Congress unquestionably has the power to grant and deny licenses and eliminate stations” that do not conform to the fairness doctrine. Furthermore “No one has a First Amendment Right to a license or to monopolize a radio frequency; to deny a station licenses because ‘the public interest’ requires it ‘is not a denial of free speech.’” Moreover, the Court held “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” Finally, “In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without government assistance to gain access to those frequencies for expression of their views, we hold the ruling at issue here is authorized by the statute and constitutional.”

Secondly, let’s evaluate the logic behind the Tornillo decision. In this case, the issue at hand was whether a Florida Statute “granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.” The Miami Dade Herald refused to publish a response by Tornillo to an editorial written by his opponent weeks earlier. First, the Court is concerned over the scarcity and monopolizing of the media: “The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper’s being owned by the same interests which own a television station and a radio station are important components of this trend toward concentration of control of outlets to inform the public.” Furthermore “The monopoly of the means of communication allows for little or no critical analysis of the media.” The Court genuinely seems concerned about “The abuses of bias and manipulative reporting.” However, “faced with penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right of access statute, editors might conclude that the safe course is to avoid controversy.” Therefore “electoral coverage may be blunted or reduced.” The Court held strongly that this statute is unconstitutional “Even if a newspaper would face no additional cost” to write opposing views. The Court finally held that “how government regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press” is unfounded.

These two case have similarities. First, it is important to note Tornillo did not cite Red Lion. Secondly, both are concerned about the scarcity and monopolizing of media. However, the press is much more scarce and monopolized than the broadcasting industry but the Court found it did not matter it the press case, but it did matter in the broadcast case. That is truly conflicting and could be used to stop the renewal of the fairness doctrine. Thirdly, the fairness doctrine is discriminatory if it applies to broadcasts, but not the press or blogs. Arguably, there is no better place to tell both sides of issues than in our schools (not just in the news), but that is not what is happening. Discriminatory policies can hardly be held constitutional. Finally, I turn to quote by Justice Thurgood Marshall who wrote the majority opinion in Stanley v. Georgia (an obscenity case – within the confines of one’s home). Marshall said governments “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Isn’t this what the government is trying to do in the fairness doctrine? People can turn to whatever broadcast they want, if they do not like it, they can change the station. The government does not have to dictate what is broadcast.