Fairness Doctrine

The Fairness Doctrine, from its inception in the 1940s to its demise in the 1980s, epitomizes American broadcast law in flux. In adopting the broadcast policy, the Federal Communications Commission (FCC) of the United States intended broadcast licensees to make reasonable effort to discuss controversial issues and to do it fairly by affording equal treatment to conflicting viewpoints. But the doctrine was abolished in 1987 by the Reagan administration, which thought it had outlived its usefulness.

Nearly every democratic media system considers impartiality and balancing the sine qua non of its broadcasting law and regulation. Yet few countries impose impartial and balanced programming upon their broadcasters the way the United States did with the Fairness Doctrine. Perhaps Israel is the only nation that has directly borrowed from the US broadcasting rule, but the Israeli Fairness Doctrine is not identical to its American model, and should be instructive to those interested in the international and comparative approaches to the Fairness Doctrine.

The US Fairness Doctrine has evolved through the policy statements and rules of the FCC. In 1949, the FCC officially announced the doctrine:

Broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints (Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1251 [1949]).

When revising the Communications Act’s Equal Time Rule for political candidates in 1959, Congress noted the obligation of a broadcaster “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance” (47 U.S.C. § 315(a) [1981]). Courts and the FCC read into this statutory language the Fairness Doctrine as a legal obligation for broadcasters.

When challenged in the late 1960s, the Fairness Doctrine was upheld by the US Supreme Court, along with its corollary rules on personal attacks and political editorials. When the public interest requires, the Court held, the FCC may direct the licensees to “present those views and voices which are representative of the community, and which would otherwise be barred from the airwaves” (Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389 [1969]). The Court noted spectrum scarcity and the broadcast licensees’ fiduciary duty to the public.

In the 1980s, however, the FCC started questioning the Fairness Doctrine. Given cable and other new electronic technologies, the FCC wondered about the doctrine’s scarcity rationale. A federal appeals court in 1986 declared that the doctrine was not a statutory requirement but an administrative policy, and one year later the FCC repealed the doctrine. It argued that broadcasters suffered from the doctrine’s “chilling effect” and that the scarcity issue was no longer valid. In 2000, the DC Circuit Court of Appeals ordered the FCC to abolish the Fairness Doctrine’s component rules on personal attacks and political editorials. The Court found no justification for retention of the doctrine’s corollary rules, for it had already repealed the doctrine.

Congress has tried unsuccessfully to reinstate the Fairness Doctrine since its abolition in 1987. President Ronald Reagan and his successor, George H. W. Bush, vetoed legislation that would codify the doctrine. Most recently, in 2005, two bills – the Fairness and Accountability in Broadcasting Act and the Media Ownership Reform Act – were introduced to Congress. Neither bill has made progress.

The theoretical and conceptual foundation of the US Fairness Doctrine is recognized in broadcasting law and regulation internationally. This is no surprise. Whether or not free speech jurisprudence is libertarian, the broadcasting media are more tightly regulated than the print media. Fairness in broadcast programming is mandated or recommended by way of right of reply or impartiality/balance requirement. A case in point is the European Union Directive, which provides for the right of reply for any natural or legal person when television broadcasting damages the person’s reputation. The right of reply under the EU Directive parallels the personal attack rule of the US Fairness Doctrine.

Broadcasters in Europe have a general duty to present news and issues in an impartial, objective, and neutral way. The impartiality requirement especially is accepted in most western European countries. The UK Broadcasting Act, for example, states: “(b) that any news given (in whatever form) in its programmes is presented with due accuracy and impartiality; (c) that due impartiality is preserved on the part of persons providing the programmes as respects matters of political or industrial controversy or relating to current public policy”.

In a number of European nations, the right of reply is also accepted to insure balance and impartiality in broadcasting. If a program questions the reputation of an individual or institution, the BBC Producers’ Guidelines stipulates, it is presumed that those criticized have a fair opportunity to respond. On the other hand, the impartiality doctrine in European countries does not allow broadcasters to editorialize public issues. This stands in sharp contrast with the US Fairness Doctrine. American broadcasters could express their views on public controversies if they provided others with the opportunity to counter their opinions.

The Israeli Fairness Doctrine traces its origin to the US Fairness Doctrine. Nonetheless, its underlying principles relate more to the European concept of impartiality than to the American notion of fairness. The Broadcasting Law and the Second Authority for Radio and Television Law mandate a fair representation of ideas, but proscribe editorializing. Nor do they provide for discussion of controversial issues as part of programming requirements. Rather, broadcasters should present different views that are “prevalent” in Israeli society.

The right of reply is recognized statutorily (i.e., Second Authority for Radio and Television Law) and administratively (i.e., Telecommunications Regulations). It is also included in an internal broadcasting guideline (i.e., Broadcasting Authority Regulations). Besides, Israeli courts accept it in incorporating the personal attack rule of the US Fairness Doctrine into Israeli law. Most significantly, the Israeli Fairness Doctrine is thriving while its US progenitor has died. In tweaking the American doctrine to their legal system, Israelis have turned to the European principle of impartiality and pluralism.

References:

1. Carmi, G. (2005). Comparative notions of fairness: Comparative perspectives on the fairness doctrine with special emphasis on Israel and the United States. Virginia Sports and Entertainment Law Journal, 4, 275 –308.
2. Geller, H. (1973). The fairness doctrine in broadcasting: Problems and suggested courses of action. Santa Monica, CA: Rand.
3. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
4. Robertson, G., & Nicol, A. (2002). Media law, 4th edn. London: Penguin.
5. Schejter, A. (1999). The fairness doctrine is dead and living in Israel. Federal Communications Law Journal, 51, 281–300.
6. Simmons, S. (1998). The fairness doctrine and the media. Berkeley: University of California Press.
7. Ugland, E. (2005). Recent developments: The fairness doctrine redux: Media bias and the rights of broadcasters. Minnesota Journal of Law, Science and Technology, 7, 301–313.