1. The Once-and-Future
Fairness Doctrine
Sarah B. Kent
Guest Lecture for
Susan Edens’ Broadcast
Journalism

2. • 1927: Issue broadcast licenses in the public interest
• 1949: Include controversial issues of public importance and do
so in a fair manner
– “In the Matter of Editorializing by Broadcast Licensees”
announced the Fairness Doctrine
– Duty to determine and represent the spectrum of views
– Alert anyone personally attacked in programming and give
them a chance to respond
– Broadcasters who endorse political candidates must offer
airtime to other candidates
• The Fairness Doctrine was challenged repeatedly over the years
• 1969: Red Lion Broadcasting v. FCC reached the Supreme
Court and the court ruled unanimously
– Broadcasters have First Amendment speech rights
– Government owns the spectrum and leases to broadcasters
– The FCC has the right to regulate news content

3. A little context: 1927
• German economy collapses
• Sacco and Vanzetti are executed
• Isadora Duncan is strangled when her
car wheel catches her silk scarf
• The first “talkie” is released
• The radio waves cease to be regulated
by the Department of Commerce
• The Federal Radio Commission
(later the FCC) is created

4. Radio Act of 1927
• The world/U.S. was a
crazy place
• Broadcasters were
acting in personal
interests much like
printers had been
– One person using a
printer did not affect
others access to printers
– One person using a
frequency prohibited
anyone else from using
• No one wanted
government-run radio
stations or
programming
• Very few people
wanted chaos
• Government licensed
the airwaves to
broadcasters
• License renewal was
contingent on acting

5. After 1927…
• 1934: Communications
Act passes; FCC is
overseeing
telecommunications
• 1941: FCC swings the
pendulum of justice
– Mayflower wants Yankee’s
license
– Editorials were personal
interests
– Personal interests don’t
pass the public interest
mandate
– Yankee lost his license,
Mayflower got it
• People were uninformed
about the issues
• Democracy cannot
function optimally with
uninformed voters
• 1946: FCC releases the
Blue Book
– Public interest = Public
issues
– Urged nonsponsored, local,
live coverage
• Broadcasters don’t
respond sufficiently
• 1949: FCC swung the

6. A little context: 1949
• U.S recognizes Israel’s existence
• The Lakers are still in Minnesota
• Tracy and Hepburn challenge gender roles and
relationship norms
• A first-class postage stamp costs 3 cents
• George Orwell warns us about 1984
• Milton Berle hosts the first telethon
• Coaxial cable brings tv reception to rural areas
• Pantomime Quiz Time wins the first Emmy for
Most Popular TV Program
• ABC, NBC, and CBS are practically the only
stations anyone can watch

7. “In the Matter of Editorializing by
Broadcast Licensees”
• Licensees had to “afford a reasonable
opportunity for the presentation of all
responsible positions on matters of sufficient
importance”
• Licensees were expected to operate in a
“framework of fairness, balance, and reasonable
limits”
– Duty to determine and represent the spectrum of
views
– Alert anyone personally attacked in programming
and give them a chance to respond to the attack in
other programming

8. A little context: Fairness/Unfairness

9. “I wonder what your basis for
comparison is” – Jareth the Goblin
King
• First Amendment – the less-than-five-minutelesson version
– State actors
– Cannot regulate content
• Time
• Place
• Manner
– And cannot restrict expression without a good
reason
• Duty to determine the spectrum of views on
controversial issues
• Duty to represent the spectrum of views

10. A little context: 1969
• Police raid Stonewall Inn in Greenwich
Village – riots ensue
• Bethel, NY hosts a now-infamous four-day
concert
• Steve Martin writes for the Smothers
Brothers
• Sesame Street airs for the first time
• FCC bans cigarette ads
• Warren Court (Loving v. Virginia, Griswold v.

11. Red Lion Broadcasting v. FCC
• A unanimous Court held the fairness doctrine
was constitutional
• Spectrum scarcity already restricted freedom
of expression
• Fairness doctrine regulations enhanced
rather than infringed the freedoms of speech
protected under the First Amendment.
– Helped keep discussions of contested issues
balanced and open
– Prevented broadcasters from using a monopoly

12. A little context: 1987
• People are terrified of AIDS
• No one knows where the Post-Reagan U.S.
will go
• Iraqi missiles kill 37 soldiers in the Persian
Gulf
• The Iran-Contra Affair becomes a Scandal
• Miami Herald Publishing Co. v. Tornillo
(1974)
has struck down a fairness doctrine for print
• FCC v. League of Women Voters (1984) has

13. FCC Stops Enforcing the Fairness
Doctrine
• Miami Herald Publishing Co. v. Tornillo, 1974
– Florida had a law similar to the Fairness Doctrine
for print media
– Court held that the law was unconstitutional
content regulation
• FCC v. League of Women Voters, 1984
– The Public Broadcasting Act of 1967 allocated
federal funds to noncommercial tv and radio but
prohibited editorializing on the stations
– Court held that the law was unconstitutional
content regulation

14. A little context: Apples vs.
Oranges
• Miami Herald Publishing hinged on the
notion that there was no pre-existing block to
expression in print media
• FCC v. League of Women Voters was about
The Public Broadcasting Act of 1967 telling tv
and radio stations they could not express any
opinions on controversial matters if they
received federal funds
• Free Market Advocacy . . .
– Free Market arguments trump any argument

15. The Beautiful Myth of the Free
Market
• If people do not like something, they are
smart enough to decide for themselves not to
support it
– If you don’t like the way they treat animals, don’t
buy their meat
– If you don’t like the politics they fund, don’t eat
there
– If you don’t like their employment policies, don’t
shop there
– If you don’t like the programming, change the
channel

16. The Ugly Truth about the Free
Market
• When the government does not regulate
industries, those industries do not have to tell
the truth.
– If they won’t agree with the way we treat animals,
prohibit cameras
– If they won’t agree with the politics we fund, use
a PAC
– If they won’t agree with our employment policies,
keep them private
– If they won’t agree with our stance on a
controversial issue, present it as uncontroverted
fact with no opposition

17. Free Market-4:Fairness
Doctrine-0
• Mark S. Fowler, Free Market Advocate, FCC
Chair
– Broadcasters have no unique role in democracy
– Owning a station doesn’t make a person a
community trustee, it makes them a market
participant (i.e., It’s all about the money, money,
money)
– Televisions are “just a toaster with pictures”
– Have to assign frequencies
• Corporate convenience has to be protected
• Public good is the public’s responsibility
• Dennis R. Patrick, Free Market Advocate,

18. Rematch 1: Still No Victory
• Syracuse Peace Council v. FCC, 1989,
Federal Appeals Court
– A broadcast station repeatedly ran spots for a
proposed nuclear plant
– The Peace Council requested the FCC enforce
the Fairness Doctrine and require them to also
include the arguments against the plant
– FCC ruled the Fairness Doctrine was not in the
public interest and violated the First Amendment
so they would not apply it
– Federal Appeals court noted the FCC reasoning

19. Rematch 2: Still No Victory
• Arkansas AFL-CIO v. FCC, 1993, Federal
Appeals Court
– AFL-CIO requested the FCC enforce the
Fairness Doctrine and require KARK to
broadcast both sides of a ballot issue
– FCC ruled they didn’t have to enforce the
Fairness Doctrine
– Federal Appeals court agreed
• The court only looked at the FCC decision to
not apply it

20. A little context: 2011
• Arab Spring Starts and Women Can Vote in
Saudi Arabia (in 2015)
• A Royal Wedding Joins Kate Middleton and
Prince William
• Rupert Murdoch – enough said
• Seal Team 6 Wins
• Gabrielle Giffords is Shot
• DoJ stops enforcing DoMA
• Occupy Wall Street Expands

21. Executive Order 13563 on
Improving Regulation and
Regulatory Review
• Rules are supposed to “protect public health,
welfare, safety, and our environment while
promoting economic growth, innovation,
competitiveness, and job creation”
• Communicate; stop making redundant and/or
inconsistent rules
• Be flexible and give people options
• Science and technology are our friends
• Look at old laws and fix them if they are
“outmoded, ineffective, insufficient, or

22. A little context: history repeating
• The world/U.S. is still a crazy place, and
probably always will be
• Broadcasters act in personal interests, much
like most people
• Democracy still functions best when voters
are informed
• Free Market advocates still think people can
inform themselves
• Power and information are still resources that
are

23. Misinformation Abounds
• In 1999, 1/5 Gallup poll
respondents said earth was at
the center of the universe
• In 2009, 49 Bush supporters
were given evidence that Bin
Laden/Afghanistan (not
Hussein/Iraq) were behind 9/11 48 of them left more certain of
the Iraq/Hussein connection to
the attack
• In 2010, a majority of tea partiers
agreed
they got a bigger tax refund, but
held firm
that Obama raised their taxes

24. So, life’s not fair….
… but maybe media can be
• The future of the Fairness Doctrine as a
regulation is bleak
• The future of the practice of Fair
broadcasting is up to you
• “Fantasia can arise anew, from your dreams
and wishes, Bastian.”