- Grant Hillyer
Reforming Regulations of Communications: How the Fairness Doctrine Is Affected
The Fairness Doctrine is an often misunderstood piece of legislation. It came from the 1927 Radio Act, in which Congress dictated that the Federal Communications Commission (FCC) should only give broadcasting licenses when doing so served the public interest. In 1949, the FCC revisited this legislation and interpreted it to mean that licensees should include discussions of matters of public importance in their broadcasts, and that they should do so in a fair manner.
It issued a revised set of standards which included the Fairness Doctrine. The new regulations required that all television and radio shows holding FCC-issued broadcasts licenses had to devote some time on their show to controversial issues of public importance and that each side of the debate should be presented.. This meant shows had to determine what the spectrum of views were on issues, and who could best present the views to the audience. The Fairness Doctrine required broadcasters to alert anyone who would be personally attacked on their program, and allow them a time to respond. It also made sure that if broadcasters endorsed a political candidate, they would have the opposing candidate on to have a chance to make their case.
These regulations were born out of the circumstances of the time. In 1949, legislators were concerned that the three major companies of the time, NBC, ABC, and CBS, would misuse their stranglehold on TV broadcasting to influence public opinion. The companies didn’t have major competitors, and unlike today, there was not an open Internet where information was easily accessible. So the Fairness Doctrine was born out of a proactive necessity in a way. Legislators decided to get ahead of the potential problem of the broadcasters using their competitive advantage to present biased news, correctly discerning that competition for airtime was not immediately forthcoming. The Fairness Doctrine was challenged in court on the grounds it violated the First Amendment, but the Supreme Court in the 1969 case Red Lion Broadcasting v FCC ruled that it was constitutional, when channels were limited.
Years later, in the Supreme Court’s 1984 decision on FCC v. League of Women Voters of California, the justices wrote “were it to be shown by the [FCC] that the fairness doctrine '[has] the net effect of reducing rather than enhancing' speech, we would then be forced to reconsider the constitutional basis of our decision in that case (Red Lion).” So even though the court did not rule on constitutionality of the Fairness Doctrine following FCC v. League of Women Voters of California, the text in their decision shows they would be open to hearing cases about it again, provided new circumstances.
In 1987, the Reagan administration abolished the Fairness Doctrine. The FCC Commissioner at the time, Dennis Patrick, claimed that due to an increase in the amount of media voices in the market that the Fairness Doctrine was unconstitutional. He argued it restricted free speech by dictating how the media had to cover the news, and it was no longer necessary since competitors to the major three networks now existed. Reagan supported this view, arguing that the best way to avoid a biased media was to allow for competition among broadcasters and not via government regulation.
Now, as President Trump attempts to reform Section 230 of the Communications Decency Act of 1996, the Fairness Doctrine might be revived. On May 28 of 2020, Trump issued an executive order which called on the Department of Justice to “assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination.” Senator Josh Hawley (R-MO) has attempted to pass legislation similar to the executive order which would have the Federal Trade Commission (FTC) validate if big tech companies use algorithms and content-removal practices that are “politically neutral” and do not discriminate against conservatives. He has likely made it a FTC issue since the FTC has broad powers over consumer protections, and current FCC chairman Ajit Pai has made it clear he doesn’t wish to enforce regulations or go after large companies.
Both President Trump and Senator Hawley have been critics of social media companies, claiming sites like Twitter and Facebook unfairly remove conservative content, while liberals have argued that conservatives actually get more leeway to post what they want since they drive interaction. So creating an Internet-age Fairness Doctrine could be a middle ground for politicians, even though it might logistically be a nightmare for social media companies if they have to begin to regulate content to ensure all viewpoints get some sort of equal exposure. However, it could be argued that these actions are unconstitutional, since they would be the government requiring private entities to abridge their speech. Plus, the Fairness Doctrine in the 1950s and 1960s largely survived due to the Supreme Court viewing it necessary due to a lack of channels and access to information. For all the faults of the Internet, lack of access to different points of view is not one of its flaws.
The Fairness Doctrine is also a favorite policy of the left. Many Democrats, including Speaker of the House Nancy Pelosi and former Democratic presidential nominee John Kerry have been open to the idea of reinstating the Fairness Doctrine. They lament the rise of Fox News and conservative talk radio and have often posited that the Fairness Doctrine would have served as a counterbalance to the outward bias such platforms have towards the Republican Party. However, President Clinton and President Obama did little to strengthen the Fairness Doctrine. President Clinton in fact signed the Telecommunications Act of 1996. This allows for media-cross ownership, allowing for single media companies to own multiple media outlets, something Democrats now criticize. And there has been little traction in Congress on the issue despite lots of talk. Vice President Joe Biden’s view on the Fairness Doctrine is unknown publicly.
However, it is unlikely that the Fairness Doctrine would have stopped the rise of Fox News and the right-wing media bubble. With the explosion in the amount of new broadcasters, around 1,300 TV stations in 1987 and 10,000 radio stations, it’s unlikely the Fairness Doctrine would have survived an inevitable challenge in the courts. There was a growing consensus among conservatives that the Fairness Doctrine was unconstitutional, which built its way up to the FCC commissioner before the Supreme Court had to weigh in, though the Court had previously signaled it was willing to revisit the Fairness Doctrine if the FCC did not.
It is unlikely we see the Fairness Doctrine get re-introduced anytime soon, at least not in its original conception. However, it is possible with the spread of disinformation on social media and the lack of regulation around social media companies that the Fairness Doctrine can provide some sort of blueprint for future regulation. This could be especially true if Democrats take control of the Senate and presidency and are allowed to appoint an FCC or FTC chairman who will take a more hardline stance against Facebook and Twitter. Forcing social media companies like those two to take down misinformation could be the first step towards a more regulated internet, and probably easier to enforce logistically than forcing them to take the complicated steps of changing their algorithms.