The Fairness Doctrine did not arise with the re-birth of AM talk radio. The Federal Communications Commission (FCC) adopted the Fairness Doctrine as a formal rule in 1949 in its "Report on Editorializing by Broadcast Licensees." 13 F.C.C. 1246 (1949). In 1959, Congress amended the Communications Act of 1934 to formalize the Fairness Doctrine into law. Congress rewrote 315(a) to read: "A broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance." In essence, the Fairness Doctrine had two components. First, it required that each broadcast licensee carry some coverage of controversial issues of public importance. Second, it required what was commonly known as a "reasonable balance" in the coverage of those issues in a station's overall programming.
The U.S. Supreme Court addressed the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The Court noted that the FCC had imposed the Fairness Doctrine on broadcasters for many years, which required that broadcasters present public issues and that the broadcasters give "fair coverage" to each side of those issues. The Court rooted its reasoning in what some refer to as the "Scarcity Doctrine," stating that "[ b]ecause 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." The Court, however, cautioned that the Fairness Doctrine should be reconsidered if it ever began to restrain speech.
The Supreme Court distinguished between print and broadcast media in Miami Herald v. Tornillo, 418 U.S. 241 (1974). There, the Court held that a state-imposed right of reply to personal attack violated the First Amendment, and that a government-enforced right of access dampened the vigor and limited the variety of public debate.
The Supreme Court held in FCC v. League of Women Voters of Calif., 468 U.S. 364 (1984) that Congress could not forbid non-profit stations which received grants from the Corporation for Public Broadcasting from editorializing. The Court struck down the Public Broadcasting Act of 1967's ban on editorializing as offensive to the First Amendment because it was not narrowly tailored. Interestingly, the Court noted that its "Scarcity Doctrine" from Red Lion Broadcasting had been critiqued.
In 1985 the FCC, under Chairman Mark S. Fowler, began repealing parts of the Fairness Doctrine, stating that it harmed the public interest and violated the First Amendment. (Report on the Fairness Doctrine, 102 F.C.C.2d 145 (1985)). In 1986 Judges Robert Bork and Antonin Scalia concluded that the Fairness Doctrine applied to teletext, but was not a binding statutory obligation and thus the FCC was not required to apply it. Telecomms. Research and Action Ctr. v. FCC, 801 F.2d 501 (D.C. Cir. 1986). In June of 1987, Congress responded by attempting to write the Fairness Doctrine into law, but President Reagan vetoed the legislation. The FCC abolished the Fairness Doctrine after the D.C. Circuit decided Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1987). The FCC stated that "the intrusion by government into the content of programming occasioned by the enforcement of the fairness doctrine restricts the journalistic freedom of broadcasters and actually inhibits the presentation of controversial issues of public concern to the detriment of the public and the degradation of the editorial prerogative of the broadcast journalist."
In 1991 Congress once again tried to write the Fairness Doctrine into law, but President George H.W. Bush vetoed the legislation.
More at:
https://fedsoc.org/commentary/publications/fairness-doctrine
Robert Bork and Antonin Scalia
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