The Fairness Doctrine and Free Speech

Call, write or e-mail your Representative or Senator and urge them to support “A bill to prevent the Federal Communications Commission from repromulgating the fairness doctrine.” (S. 1748 and H.R. 2905)

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” - The First Amendment to the US Constitution.

I would like to think that the above amendment to our Constitution was placed before all others because it is the most fundamental right to a free and open society. In truth, it was the third in a list of proposed amendments submitted by Madison on June 8, 1789. The first addressed the number of representatives per person, it was never ratified. The second addressed a legislator’s ability to affect his own compensation for service. This was not ratified until 1992. There was minimal debate over this amendment when it was presented before congress.

Although the First Amendment only mention “the press”, I think this is because they could not foresee the advent of the electronic media. Had the other media outlets existed, I am sure they would have either been incorporated, whether enumerated, or by use of a word that encompassed them all. For example: … or abridging the freedom of speech, or the media; or the right …

The fairness doctrine began as general policy by the FCC in 1949, and was applied on a case by case basis until it became an FCC rule in 1967. In 1969, its constitutionality was upheld by the Supreme Court in Red Lion Broadcasting Co. v FCC, 395 U.S. 367 based on a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) allowing for the regulation of radio stations based on the limited nature of the public airwave spectrum. It did not apply to print media. In 1974, Chief Justice Warren Burger writing for a unanimous court in Miami Herald Publishing Co. v. Tornillo (418 U.S. 241) questioned whether “government-enforced right of access inescapably dampens the vigor and limits the variety of public debate".

In 1984, the Court found that as communications technologies expanded, the argument that the scarcity of the public airwaves was no longer a valid argument, and that the doctrine was “chilling speech.” They further stated that if the doctrine had "the net effect of reducing rather than enhancing speech,” they would have to revisit the constitutionality of the doctrine. (FCC v. League of Women Voters, 468 U.S. 364)

In 1985, the FCC began to stop enforcing the doctrine, in 1986 and 1987, the Supreme court found in favor of the FCC’s decisions. They found that the doctrine was not mandated by congress and that the FCC did not have to continue to enforce it.

The FCC officially abolished the rule in 1987 stating, "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 importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists." They further implied that due to the plethora of available media, the doctrine was perceived to be unconstitutional.

There is talk in the halls of Congress of resurrecting this ill conceived doctrine. US Representative Mike Pence(R) from Indiana’s 6th District, proposed an amendment to H.R. 2829 (Financial Services and General Government Appropriations Act, 2008) to prevent the FCC from spending money to implement the Fairness Doctrine. This amendment passed by an overwhelming majority. All of the Republicans who voted, and nearly half of the voting Democrats voted in favor of the amendment. H.R. 2829 has passed the house, but has not yet been voted on in the Senate, hopefully this amendment will survive.

With a 309 to 115, vote in favor of preventing the FCC from enforcing the so called Fairness Doctrine, why would Representative Pence and 111 cosponsors feel the need to submit H.R. 2905? Why would Senator Norm Coleman (R-MN) and 18 cosponsors feel the need to submit S1748? The answer is actually quite simple, the amendment to the 2008 spending bill does nothing. The spending bill covers a finite period that exists solely within the timeframe of the current administration. The current FCC chairman is not likely to impose the fairness doctrine and any legislative effort to enforce this doctrine during this administration is likely to face a veto. It is a possible Democratic successor to President Bush that the proposed legislation is aimed at.

Those legislators who voted for the amendment, but who will not support the legislation, will sit by and watch as an FCC under Democratic controlled Executive and Legislative branches reinstitute this doctrine. All the while pointing to their vote for the amendment to H.R. 2829 as proof that they “really don’t support this, but, hey, what are we supposed to do?”