The Once-and-Future Fairness Doctrine

The Once-and-Future Fairness Doctrine

Sarah B. KentGuest Lecture for

Susan Edens’ Broadcast Journalism

• 1927: Issue broadcast licenses in the public interest• 1949: Include controversial issues of public importance

and do so in a fair manner– “In the Matter of Editorializing by Broadcast

Licensees” announced the Fairness Doctrine– Duty to determine and represent the spectrum of

views– Alert anyone personally attacked in programming and

give them a chance to respond– Broadcasters who endorse political candidates must

offer airtime to other candidates• The Fairness Doctrine was challenged repeatedly over

the years• 1969:  Red Lion Broadcasting v. FCC reached the

Supreme Court and the court ruled unanimously– Broadcasters have First Amendment speech rights– Government owns the spectrum and leases to

broadcasters – The FCC has the right to regulate news content

• First Amendment jurisprudence started to favor speech rights over regulation

• 1987: FCC reconsiders the rule under new jurisprudence and stops enforcing it

• 2011: FCC eliminated the rule to help curb federal clutter• Not the Equal Time rule (equal time to legally qualified

political candidates), which is still in force

A little context: 1927

• German economy collapses• Sacco and Vanzetti are executed• Isadora Duncan is strangled when her

car wheel catches her silk scarf• The first “talkie” is released• The radio waves cease to be regulated

by the Department of Commerce• The Federal Radio Commission

(later the FCC) is created

Radio Act of 1927

• The world/U.S. was a crazy place

• Broadcasters were acting in personal interests much like printers had been– One person using a printer

did not affect others access to printers

– One person using a frequency prohibited anyone else from using it

• Broadcasters’ free speech rights were limited in the public interest

• No one wanted government-run radio stations or programming

• Very few people wanted chaos

• Government licensed the airwaves to broadcasters

• License renewal was contingent on acting according to standards– No

Bolshevik/Communist/Socialists

– No Evolutionists– No Obscenity

After 1927…• 1934: Communications Act

passes; FCC is overseeing telecommunications

• 1941: FCC swings the pendulum of justice– Mayflower wants Yankee’s license– Editorials were personal interests– Personal interests don’t pass the

public interest mandate– Yankee lost his license, Mayflower

got it

• FCC continued to discourage editorials

• Broadcasters avoided debatable issues

• People were uninformed about the issues

• Democracy cannot function optimally with uninformed voters

• 1946: FCC releases the Blue Book – Public interest = Public issues– Urged nonsponsored, local, live

coverage

• Broadcasters don’t respond sufficiently

• 1949: FCC swung the pendulum again with “In the Matter of Editorializing by Broadcast Licensees”

A little context: 1949

• U.S recognizes Israel’s existence• The Lakers are still in Minnesota• Tracy and Hepburn challenge gender roles and

relationship norms• A first-class postage stamp costs 3 cents• George Orwell warns us about 1984 • Milton Berle hosts the first telethon• Coaxial cable brings tv reception to rural areas• Pantomime Quiz Time wins the first Emmy for

Most Popular TV Program• ABC, NBC, and CBS are practically the only

stations anyone can watch

“In the Matter of Editorializing by Broadcast Licensees”

• Licensees had to “afford a reasonable opportunity for the presentation of all responsible positions on matters of sufficient importance”

• Licensees were expected to operate in a “framework of fairness, balance, and reasonable limits”– Duty to determine and represent the spectrum of views– Alert anyone personally attacked in programming and give

them a chance to respond to the attack in other programming

– Broadcasters who endorse political candidates must offer airtime to other candidates • still not – and never will be – the Equal Time rule• Equal Time states that legally qualified political candidates get

equal air time• Equal Time rule still exists

A little context: Fairness/Un-fairness

“I wonder what your basis for comparison is” – Jareth the Goblin King

• First Amendment – the less-than-five-minute-lesson version– State actors– Cannot regulate content

• Time• Place• Manner

– And cannot restrict expression without a good reason

• Duty to determine the spectrum of views on controversial issues

• Duty to represent the spectrum of views• Duty to alert people personally attacked and offer

them air time• Offer airtime to endorsed candidates’ opposition

A little context: 1969

• Police raid Stonewall Inn in Greenwich Village – riots ensue

• Bethel, NY hosts a now-infamous four-day concert

• Steve Martin writes for the Smothers Brothers

• Sesame Street airs for the first time• FCC bans cigarette ads• Warren Court (Loving v. Virginia, Griswold v.

Connecticut, Tinker v. Des Moines SchoolDistrict) hears Red Lion Broadcasting v. FCC

Red Lion Broadcasting v. FCC

• A unanimous Court held the fairness doctrine was constitutional

• Spectrum scarcity already restricted freedom of expression

• Fairness doctrine regulations enhanced rather than infringed the freedoms of speech protected under the First Amendment. – Helped keep discussions of contested issues balanced and

open – Prevented broadcasters from using a monopoly to stifle

discussion

• To the extent content was regulated, it was only regulated in a specific manner – via the limited spectrum

A little context: 1987

• People are terrified of AIDS• No one knows where the Post-Reagan U.S. will

go• Iraqi missiles kill 37 soldiers in the Persian Gulf• The Iran-Contra Affair becomes a Scandal• Miami Herald Publishing Co. v. Tornillo (1974)

has struck down a fairness doctrine for print• FCC v. League of Women Voters (1984) has

ruledthat editorializing cannot be prohibited

• Free market advocates are making namesfor themselves (even in the FCC)

FCC Stops Enforcing the Fairness Doctrine

• Miami Herald Publishing Co. v. Tornillo, 1974– Florida had a law similar to the Fairness Doctrine for

print media– Court held that the law was unconstitutional content

regulation

• FCC v. League of Women Voters, 1984– The Public Broadcasting Act of 1967 allocated federal

funds to noncommercial tv and radio but prohibited editorializing on the stations

– Court held that the law was unconstitutional content regulation

• Free Market Advocacy– People know better than government bureaucrats– Regulations tell people that people are not smart

enough to choose for themselves

A little context: Apples vs. Oranges

• Miami Herald Publishing hinged on the notion that there was no pre-existing block to expression in print media

• FCC v. League of Women Voters was about The Public Broadcasting Act of 1967 telling tv and radio stations they could not express any opinions on controversial matters if they received federal funds

• Free Market Advocacy . . . – Free Market arguments trump any argument

for regulation– It’s expressly premised on the idea that

you have to be stupid to need regulation

The Beautiful Myth of the Free Market

• If people do not like something, they are smart enough to decide for themselves not to support it– If you don’t like the way they treat animals, don’t buy

their meat– If you don’t like the politics they fund, don’t eat there– If you don’t like their employment policies, don’t shop

there– If you don’t like the programming, change the channel

• It’s empowering. You’re not the boss of me. I’m the boss of me.

• Except it’s not about smart and stupid. And it’s not about that kind of power.

The Ugly Truth about the Free Market

• When the government does not regulate industries, those industries do not have to tell the truth.– If they won’t agree with the way we treat animals, prohibit

cameras– If they won’t agree with the politics we fund, use a PAC– If they won’t agree with our employment policies, keep

them private– If they won’t agree with our stance on a controversial

issue, present it as uncontroverted fact with no opposition

• In 1987, the FCC stopped enforcing the Fairness Doctrine

• In 1988, Rush Limbaugh got a radio show• In 2003, Al Franken published a collection of Fox

News’ greatest misses in Lies and the Lying Liars Who Tell Them

Free Market-4:Fairness Doctrine-0

• Mark S. Fowler, Free Market Advocate, FCC Chair– Broadcasters have no unique role in democracy– Owning a station doesn’t make a person a community

trustee, it makes them a market participant (i.e., It’s all about the money, money, money)

– Televisions are “just a toaster with pictures”– Have to assign frequencies

• Corporate convenience has to be protected• Public good is the public’s responsibility

• Dennis R. Patrick, Free Market Advocate, replaces Fowler– Scalia and Bork hold the Fairness Doctrine is

regulation, not law– FCC Chair can - and does - unilaterally stop enforcing it

Rematch 1: Still No Victory

• Syracuse Peace Council v. FCC, 1989, Federal Appeals Court– A broadcast station repeatedly ran spots for a proposed

nuclear plant– The Peace Council requested the FCC enforce the Fairness

Doctrine and require them to also include the arguments against the plant

– FCC ruled the Fairness Doctrine was not in the public interest and violated the First Amendment so they would not apply it

– Federal Appeals court noted the FCC reasoning left something to be desired, but upheld the FCC decision for lack of egregious error

• The court only looked at the FCC decision to not apply it• The court remained expressly silent on the First

Amendment issue

Rematch 2: Still No Victory

• Arkansas AFL-CIO v. FCC, 1993, Federal Appeals Court– AFL-CIO requested the FCC enforce the

Fairness Doctrine and require KARK to broadcast both sides of a ballot issue

– FCC ruled they didn’t have to enforce the Fairness Doctrine

– Federal Appeals court agreed

• The court only looked at the FCC decision to not apply it

• The court and FCC ignored the First Amendment issue

A little context: 2011

• Arab Spring Starts and Women Can Vote in Saudi Arabia (in 2015)

• A Royal Wedding Joins Kate Middleton and Prince William

• Rupert Murdoch – enough said• Seal Team 6 Wins• Gabrielle Giffords is Shot• DoJ stops enforcing DoMA• Occupy Wall Street Expands• Obama is Cleaning House

Executive Order 13563 on Improving Regulation and Regulatory Review

• Rules are supposed to “protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation”

• Communicate; stop making redundant and/or inconsistent rules

• Be flexible and give people options• Science and technology are our friends• Look at old laws and fix them if they are

“outmoded, ineffective, insufficient, or excessively burdensome”

A little context: history repeating

• The world/U.S. is still a crazy place, and probably always will be

• Broadcasters act in personal interests, much like most people

• Democracy still functions best when voters are informed

• Free Market advocates still think people can inform themselves

• Power and information are still resources that are held by only certain people and/or groups

• Groups that have power and information still tryto keep it for themselves for the most part

Misinformation Abounds• In 1999, 1/5 Gallup poll respondents said

earth was at the center of the universe• In 2009, 49 Bush supporters were given

evidence that Bin Laden/Afghanistan (not Hussein/Iraq) were behind 9/11 - 48 of them left more certain of the Iraq/Hussein connection to the attack

• In 2010, a majority of tea partiers agreed they got a bigger tax refund, but held firm that Obama raised their taxes

• In 2010, over 75% of Pew respondents thought Public School teachers could not read the Bible

• Last August, 1/3 of Louisiana republicans said Obama was most at fault for the mishandling of the aftermath of Hurricane Katrina’s landfall

So, life’s not fair….

… but maybe media can be• The future of the Fairness Doctrine as a

regulation is bleak• The future of the practice of Fair

broadcasting is up to you• “Fantasia can arise anew, from your

dreams and wishes, Bastian.”