Should the FCC’s Fairness Doctrine be Reinstated?

Donald Elliott (George Mason University) and Allison Perlman (UC Irvine) debate the impact of the FCC Fairness Doctrine on polarization.
Image by Mr. Doomits via Shutterstock

The Role of the FCC’s Fairness Doctrine in Today’s Polarized Landscape

By E. Donald Elliott and Allison PerlmanIf you enjoy this piece, you can read more Political Pen Pals debates here.


Bring Back a New and Improved Fairness Doctrine

By E. Donald Elliott – Distinguished Adjunct Professor, Antonin Scalia Law School, George Mason University

From 1949 to 1987, the Federal Communications Commission had a rule called the Fairness Doctrine. It provided that for broadcasting license renewals by radio and TV stations, the FCC would consider whether a licensee had covered both sides of controversial public issues. The Fairness Doctrine is often confused with one of its subparts, the equal time rule, but the Fairness Doctrine never required broadcasters to give equal time to every side of every issue. Rather, it merely required broadcasters devote some of their airtime to discussing controversial matters of public interest and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views. It could be done through news segments, public affairs shows, or editorials.

The FCC’s Old Fairness Doctrine didn’t work very well. Though rarely applied, it put the government in the awkward, and arguably unconstitutional position of policing the content of speech. Despite these First Amendment concerns, in 1969, a unanimous Supreme Court upheld one aspect of the Fairness Doctrine, the equal time provision. This held that if a broadcaster gave free airtime to one political candidate, it had to extend the same privilege to his or her opponent. The Court based its holding on the scarcity of the available broadcast spectrum. Nonetheless, in 1987, the FCC unanimously abolished the Fairness Doctrine based on First Amendment concerns.

The then-chair of the FCC, Daniel Patrick, stated, “We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception.” That misses the point that electronic media are different from the print press because they exercise power by virtue of a government license to use the then-limited electronic spectrum. Today, however, the scarcity factor is less important because of the internet.

Media’s Role in the Rise of Political Polarization

Unfortunately, however, most people prefer to hear only opinions with which they agree. Hearing views with which we disagree is unpleasant because it creates “cognitive dissonance,” whereas hearing what we already believe to be true feeds our desire for “confirmation bias.” I am reminded of this aspect of human nature every time I try to listen to CNN or MSNBC and my wife starts yelling talking points from Fox News back at the TV.

Despite substantial First Amendment concerns, and the fact that the FCC’s Old Fairness Doctrine never worked well in practice, we should bring back a new and improved Fairness Doctrine. It should be a statement of national policy that journalists, both print and electronic, should cover both sides of controversial issues. Political polarization has been attributed to the loss of the end of the Fairness Doctrine, so we should remind all journalists that they play an important role in our system of government. They inform the voting public, but they can only perform this essential civic function if arguments, both pro and con, are widely disseminated. That’s really what the Fairness Doctrine was about — not “fairness” but the journalist’s duty to inform the public accurately and fully.

A New Fairness Doctrine

Unlike under the FCC’s Old Fairness Doctrine, where government regulated the content of speech by declining to renew licenses, my proposed New Fairness Doctrine, which is essentially an aspirational declaration of national policy in favor of even-handedness and fairness to both sides of the argument, would not raise First Amendment issues.

There are many such declarations of national policy in U.S. law that have no coercive enforcement mechanism. Confucius, who also headed his country’s government, thought it was wrong for governments to try to manage the populace with threats of punishment. According to “The Wisdom of Confucius Book 2,” this was because it would undermine the public’s “sense of shame.” He felt this was more pervasive and potent than government enforcement could ever be.

A good example of a declaration of national policy without a coercive enforcement mechanism is the section of the National Environmental Policy Act of 1969. It declares “[t]he Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.” One of the main purposes of our environmental laws was to change our shared attitudes toward the environment. That objective is gradually being accomplished as many businesses now act to protect the environment in realms such as climate change, where they have no legal obligation to do so.

Addressing Media Prejudice Through the Legal System

The concept that one function of law is to instill values is an old one. In “Democracy in America,” Alexis de Tocqueville observed that because Americans come from all over the world and lack a common culture, our legal system plays a prominent role in affirming the values that we share as Americans.

The prevailing legal theory holds that the purpose of government regulation through law is to correct “market failures.” In his brilliant 2012 Storrs Lecture, Harvard Law professor Cass Sunstein argues that cognitive failures should take their rightful place alongside other market failures as grounds for regulation. In fact, all law is intended to compensate for shortcomings in human nature.

As I have written elsewhere, “If we were perfectly adapted by biology to live in our current environments, there would be no need for law or other social-cultural tools. … [L]aw amounts to a kind of evolutionary prosthetic – that is, … law is useful to societies precisely to compensate for those areas in which [evolutionary] biology does not suit us to live in our current environment.” That is also an old idea dressed up in modern garb. Augustine and Aquinas both thought that law was necessary because human beings had fallen from God’s grace. Madison famously wrote in “Federalist 51” that “If men were angels, no government would be necessary.”

Our cognitive shortcomings as human beings make most of us only want to hear things that reinforce our prejudices. However, the “better angels of our nature should remind all journalists that, like teachers and judges, they have a civic duty to ensure that the voters hear both sides. Journalists may find it more to their liking to write one-sided polemics, but for the good of the country, voters need to consider both sides of public issues. That disconnect between private motives and public needs should be addressed by my new and improved Fairness Doctrine.


Misconceptions Of The Fairness Doctrine Focus On Journalists Rather Than Broadcasters

By Allison Perlman – Associate Professor of History and Film and Media Studies, University of California Irvine

In “Bring Back a New and Improved Fairness Doctrine,” Donald Elliott proposes what he refers to as a “New Fairness Doctrine.” This doctrine takes the form of a statement of national policy that would exhort journalists to cover both sides of controversial topics. Unlike the Fairness Doctrine in effect from 1949 to 1987, this new Fairness Doctrine would take advantage of the expressive force of the law to articulate a shared belief in the necessity for fairness and balance in reporting. This statement would not have the coercive power of a Federal Communications Commission regulation. Therefore, for Elliot, this means that it would avoid the troubling First Amendment concerns raised by the original Fairness Doctrine. Additionally, it accounts for how the conditions that legitimated the Fairness Doctrine – the scarcity of the broadcast spectrum – no longer applies in the digital age. This new Fairness Doctrine would address what Elliott defines as the original rule’s primary purpose: “the journalist’s duty to inform the public accurately and fully.”

Focusing on Broadcasters

The Fairness Doctrine, however, was a regulation that targeted broadcasters, not journalists. When the FCC adopted it in 1949, the commissioners replaced the Mayflower Rule, adopted in 1941, which had prohibited broadcasters from editorializing over the air. As Victor Pickard has outlined, the Mayflower Rule addressed a widespread concern about the power of broadcasters to mold public opinion to mirror their own political commitments. When the FCC held hearings in 1948 to reconsider the Mayflower Rule, some witnesses urged the commission to retain this prohibition against editorializing, fearing that in its absence commercial stations would use the airwaves to inculcate political opinion sympathetic to the interests of the broadcasting industry and its sponsors. Others, most notably the National Association of Broadcasters, encouraged the repeal of the rule altogether, insisting that it violated the speech rights of stations by dictating what sort of content they could air. A third position advocated for a requirement to provide a range of opinion on controversial topics that could be inclusive of, but not limited to, the views of stations themselves. This latter position was taken up by the FCC as its Fairness Doctrine; stations would have an affirmative obligation to address controversial topics and to include diverse views on the controversy. In other words, the Fairness Doctrine was created not to address the practices of journalists but the power of media companies.

While the Fairness Doctrine was intended to enable the circulation of diverse viewpoints and to prohibit licensees from using their stations as bully pulpits for their political beliefs, this did not always occur in practice. The commission often deferred to broadcasters to determine what constituted a controversial topic, how it ought to be addressed, and who responsibly could speak to it. Licensees were “to exercise their best judgment and good sense in determining what subjects should be considered, the particular format of the programs to be devoted to each subject, the different shades of opinion to be presented, and the spokesmen for each point of view. The FCC reiterated in a 1974 order that it had “no intention of becoming involved in the selection of issues to be discussed, nor do we expect a broadcaster to cover each and every important issue which may arise in his community.” As I have argued elsewhere, the enforcement of the Fairness Doctrine was uneven and particularly targeted the rule’s second prong: the requirement to cover both sides of a controversial topic. The lack of attention to the first prong and the affirmative obligation to address controversial issues enabled the Fairness Doctrine’s unintended consequence of having a “chilling effect” on the discussion of exigent issues on the air.

Deregulation of the Media

The repeal of the Fairness Doctrine in 1987 similarly hinged not on the commission’s faith in journalists, but rather its belief that private companies best serve the public interest when they are unfettered by government regulation. Its removal was part-and-parcel of the deregulation of broadcasting in the 1980s by the FCC. The commission also, for example, extended the term of broadcast licenses, diminished station obligations to local communities, and transformed license renewal into a pro forma process. While the commission gestured to a diversified media landscape to justify these shifts, they also were consistent with Reagan-era hostility to the administrative state.

Accordingly, Elliott’s prescription for a new Fairness Doctrine strikes me as misdirecting its attention to journalists and away from media companies. The problem of political polarization that motivates Elliott’s prescription for a national statement on journalism is serious and urgent but, like the motivation for the original Fairness Doctrine, is partially the result of the political economy of our current media system. It is a problem of unregulated social media platforms whose economic models prioritize viewer engagement, not exposure to diverse perspectives, and accordingly encourage echo chambers and filter bubbles; of the collapse of funding models for journalism and the disinvestment in investigative reporting; of intensifying media consolidation and the concomitant evisceration of local journalism; and of black-boxed algorithms that push particular kinds of content to users. Consequently, a new Fairness Doctrine, in the form of a statement targeting journalistic standards, is an inappropriate tool to address these issues.

Furthermore, as Yochai Benkler, Hal Roberts, and Robert Faris have argued persuasively, a critical challenge of our contemporary media environment is not just the calcification of political opinion across the ideological spectrum, but a devastating epistemic crisis over what counts as a fact. The exigent issue, in other words, is not disagreement over politics but a collapse of consensus on what is true, augmented by the deliberate circulation of disinformation. While the FCC’s news distortion rule deems the deliberate distortion, slanting, or staging of the news a violation of the public interest, this rule only has applied to broadcasters. The commission set an exceptionally high bar to finding a licensee culpable for this action. Its history is an inauspicious one for dealing with the issues of our contemporary moment.

Impact of the First Amendment

I agree with Elliott that a resuscitation of the old Fairness Doctrine would not do much to address these problems. Perhaps what we can reclaim from the rule’s history is the understanding of speech rights that inspired it. When the Supreme Court upheld the Fairness Doctrine in its Red Lion decision – which specifically addressed the Personal Attack Rule, or the requirement to provide an individual an opportunity to respond when attacked in a broadcast – it pointed to the scarcity of the broadcast spectrum to legitimate this breach of the editorial freedoms of broadcasters. However, the Court also affirmed an interventionist interpretation of the First Amendment that proclaimed, in the words of Justice White, it “is the right of viewers and listeners, not the right of the broadcasters, which is paramount.” The Court identified in the First Amendment an affirmative obligation of the state to assure the conditions under which the public could gain access to all the ideas and perspectives necessary to participate in democratic self-governance. This view of the First Amendment, advocated by Alexander Meiklejohn and Jerome Barron, similarly informed federal court decisions over campaign finance laws and FCC policies, including but not limited to the Fairness Doctrine, to promote diversity of perspective on the air.

This understanding of the First Amendment defines speech rights not as the inviolable right of individuals, but as the collective right of the public. It recognizes that First Amendment cases often are contests between competing rights claims, and that to privilege someone’s right to speak can mean diminishing others’ rights to participate in public debate and democratic self-governance. To learn from the Fairness Doctrine is to recover this view of speech rights and to re-see a bright line between the financial interests of media companies and the public interest of media consumers, and to imagine state action as an appropriate vehicle to police it.


If you liked this post, you can read more of our Encouraging Bipartisanship series here

E. Donald Elliott
Distinguished Adjunct Professor, Antonin Scalia Law School, George Mason University | Website | + posts

E. Donald Elliott has been a professor at Yale Law School since 1981, and now also teaches part-time as a Distinguished Adjunct Professor at the Antonin Scalia Law School. Elliott has advised six presidential campaigns and teaches and writes in fields as diverse as administrative and constitutional law, civil procedure, and energy and environment. He is the author or co-author of over 80 articles and eight books and writes regularly on popular legal topics for The American Spectator. Elliott also has practical experience as the head of the environmental practice groups at four large international law firms. He served as assistant administrator and general counsel of the EPA, 1989-1991. 

Allison Perlman
Associate Professor of History and Film and Media Studies, University of California Irvine | Website | + posts

Allison Perlman is associate professor of History and Film and Media Studies at the University of California Irvine. She is the author of "Public Interests: Media Advocacy and Struggles Over US Television" (Rutgers UP, 2016). Her other publications include book chapters and journal articles on US media regulation and public media history.

 

Leave a Comment

%d bloggers like this:
Donate!