A Final Farewell to the Fairness Doctrine?

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Victor Pickard is an assistant professor in the Annenberg School for Communication at the University of Pennsylvania. He studies the history of media policy.

The Fairness Doctrine, one of the most famous and controversial media policies ever debated, suffered a final death-blow recently when the Federal Communications Commission (FCC) permanently struck it from the books.  Often mistaken for the “equal time” rule for broadcasting political candidates, the doctrine’s purpose was more progressive than requiring two sides to a debate.  It stipulated a two-part mandate that broadcasters must cover controversial issues of public importance, and do so in a way that represented contrasting views.

While the Fairness Doctrine’s effectiveness is debatable, it encouraged broadcasters to be mindful of programming biases.  Now that it’s officially erased from the rules, we can pause to consider the decades-long saga of this oft-maligned and misunderstood doctrine.  For its history reflects a number of surprising ironies in our nation’s approach to media policy.

Few people realize that the Fairness Doctrine resulted from “deregulation.”  In 1949, despite public pressure for more aggressive media regulations, an earlier ban on broadcasters’ political editorializing was lifted.  The Fairness Doctrine was a concession to widely held concerns that giving commercial broadcasters so much political power would lead to unchecked partisanship and one-sided arguments.

The doctrine’s legitimacy was unanimously affirmed by the Supreme Court in its 1969 “Red Lion” decision, which determined, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”  The First Amendment’s purpose, the Court argued, was to preserve a vibrant marketplace of ideas rather than defend broadcasters’ monopolization of the nation’s discourse.

The Fairness Doctrine was championed by both the left and right over the years.  Even as Ronald Reagan’s FCC repealed the doctrine in 1987, many conservatives argued for codifying it into law.  Earlier that same year, a congressional bill that would legislate the Fairness Doctrine passed by a large margin with significant conservative backing—including from luminaries like then-Representative Newt Gingrich—but Reagan vetoed it.  An attempt at passing a similar bill in 1991 withered in response to George H.W. Bush’s veto threat.

In more recent years, though largely abandoned by even its most ardent supporters, the Fairness Doctrine came to symbolize governmental overreach.  Market libertarians invoked it to taint even the most benign and unrelated media policies, like the Internet safeguard known as network neutrality.  As a useful bogeyman, it likely will remain alive and well in conservative activists’ imaginations and political rhetoric for years to come.

There are already signs that the manufactured threat of the Fairness Doctrine will continue to haunt us.  Alarmist talk of a “stealth” or “backdoor” Fairness Doctrine erupts whenever the FCC mentions concerns about the lack of diversity in our media.  Our nation’s history of red-baiting and other fear mongering tactics suggests that a specter’s nonexistence does not prevent its invocation being used as a cynical ploy to whip up a reliable activist bloc.

Although the move to officially kill the Fairness Doctrine was done ostensibly to remove unnecessary regulations, it validates the contention that government has no legitimate role in regulating media markets. In a thirty-year retreat from constraining corporate power over media, the FCC has mandated increasingly fewer obligations that broadcasters must fulfill to maintain their immense monopoly privileges. This latest round of deregulation—or rather, de facto regulation by oligopolistic markets—provides yet more evidence of the gradual shrinkage of government advocacy on the public’s behalf.  Nonetheless, the FCC should not abdicate responsibility for dealing with many of the media problems facing us today, including lack of diversity and the loss of actual journalism in our media.  

Perhaps the Fairness Doctrine’s removal should be seen as a shrewd maneuver that puts to rest what had become an annoying distraction.  Indeed, many media reformers have long seen the Fairness Doctrine as an imperfect solution to a structural problem—namely, that a highly concentrated, commercialized media system had little incentive to protect the public interest.  Despite the promises of new digital media, much of our news discourse remains impoverished.  A more effective strategy to ensure diverse voices would be to bring our media in line with global norms by adequately funding a robust and independent public media system.

In the final analysis, while abolishing the Fairness Doctrine took a powerful arrow out of conservatives’ rhetorical quiver, it does so at the cost of enshrining a narrative that media are governed best by market forces.  And while it is likely that market libertarians will continue to condemn the FCC and Congress for perceived over-regulation, they should be pleased that their vision has been mainstreamed.  For the rest of us, the outlook is less rosy.