Revisiting The Fairness Doctrine Issue in 1975

     A doctrine that requires broadcasters to present important public issues “fairly” sounds, on the face of it, like a simple and straightforward affair, about as controversial as “Little House on the Prairie” and almost as American.  It is now a controversial topic in Congress here in 2009.  But  the FCC’s Fairness Doctrine had, thirty-four years ago, become an explosive issue.  Arthur Taylor, then president of CBS, called it ” a potentially destructive tool.”  Others called it an affront to the First Amendment.

     On the other hand, the Committee for Economic Development, a prestigious business-supported research group, came out strongly in favor of the Fairness Doctrine, and the then chairman of the FCC, Richard Wiley, argued that elimination of it would be “the worst single thing to happen in the whole history of journalism.”

     So the debate was on.  And it was a hot one, sharply dividing people who usually agree with each other.  Broadcasters were pitted against broadcasters, liberals against liberals, and conservatives against conservatives.

     The problem with the doctrine was that, while everybody was in favor of being “fair,” few people could agree on what fairness meant in practice or how it should be achieved and guaranteed.  It did not lend itself to precision and was hard to enforce.  It lead to a high volume of litigation and a low volume of public understanding.

     The root of the controversy, however, was rather simple:  to what extent should the federal government exercise control over the way news and public issues were presented on radio and television?  It all boiled down pretty much to a question of whom do you trust or, at least, whom do you distrust less, the government or the networks.

     Those who favored the doctrine feared that the network would abuse their predominant and privileged postition in the nation’s news flow.  Therefore, they said, broadcasting must be checked by limited federal supervision.  Those who opposed the doctrine feared that federal supervision could easily become unreasonable censorship.  They found the networks quite capable of fulfilling their public-interest responsibilities without government regulation.  The past debate over the Fairness Doctrine could have affected the nature of broadcasting for years afterward.  Just as it could today.

     Though the Fairness Doctrine essentially is a philosophical issue, it derived from a technological fact back then:  there were a limited number of frequencies on which radio and TV programs could be broadcast over the air.  While there was no practical limit to the number of people who can exercise their right of free speech by publishing newspapers and magazines, only a relatively few could transmit over the airwaves.

     A series of laws beginning with the Radio Act of 1927 had developed the idea that, since some people necessarily must be denied the right to use the airwaves, the few who are permitted to use them must be prohibited from monopolizing the viewpoints expressed.  In return for the privilege of using the airwaves, broadcasters must adhere to standards of “public convenience, interest or necessity” and broadcast a variety of viewpoints in addition to their own.  The public’s right to be informed thus justified limits on the broadcaster’s right to free speech.  Through its power to issue broadcast licenses, the FCC was supposed to ensure that broadcasters live up to these obligations.

     The Fairness Doctrine itself was laid down in a 1949 FCC report that was later upheld in Congress and the courts.  It decreed that a broadcaster must spend a reasonable amount of time discussing controversial issues of public importance, and do so in a way that  fairly reflects opposing points of view.  It permitted the broadcaster to take as strong an editorial stand as he desires–as long as he also reasonably presented the opinions of those with contrary positions.

     By and large, the courts and the FCC have strengthened the Fairness Doctrine.  Most rulings have been favorable.  But that hasn’t deterred an increasingly vocal group of critics, particularly NBC and CBS, who argued that broadcasters should have the same unfettered First Amendment rights as newspapers and magazines.  They pointed out that broadcasting was no longer the restricted medium it once was.  The nation’s broadcasting outlets outnumbered daily newspapers.

     Foes of the doctrine claimed that even without specific government pressure, the potential had been enough to inhibit broadcasters, especially at local stations, from putting hard-hitting public-affairs programs on the air.  There was a consciousness of government, an anxiety about it, that robbed TV executives of the same quality of jounalistic zest and readiness to take initiatives displayed by newspaper executives.  In return for the limited benefits of the Fairness Doctrine broadcasters suffered the imposition of blandness, timidity and don’t-rock-the-fear of government on the nation’s radio and TV stations.

    Proponents of the Fairness Doctrine have not been quite as visible as its opponents, but their views were no less firmly held.  Exclusive rights to use broadcast frequencies, they pointed out, remained a government-conferred privilege, and public-interest criteria remained the only means to determine who should be granted that privilege.

     Fairness Doctrine supporters worried that television had a much stronger economic motivation, because of advertiser preferences, to broadcast bland entertainment and sport shows than to present controversial public-affairs programs.  They thought the Fairness Doctrine was the only existing assurance that the networks would responsibly discharge their responsibilities regrading news and public affairs.

     The doctrine provided an important guarantee of access to the airwaves by contrary and minority opinions, its adherents argued.  It was one big stick for them.

     Clearly, the notion of the federal government as overseer of the nation’s radio and TV news and public-affiars programming was an ominous one.  The power of the major broadcasters was so awesome that the thought of their exercising it totally unchecked was hard to accept.  Though the exercise of federal power was relatively visible and under continual outside scrutiny, network power was exercised largely invisibly.

     Opinions differed, but it seemed to many that the Fairness Doctrine didn’t need to have an inhibiting effect on the honest pursuit of news and public affairs by radio and TV stations.  Some observers regarded the doctrine as a useful reminder to broadcasters of their public accountability as beneficiaries of federally sanctioned monopolies.  From that point of view, it would appear to be a small price to pay for a mechanism that guaranteed to outsiders at least a modicum of acces to the nation’s airwaves.

     From another point of view, any infringement of the First Amendment rights of any newsman seemed a very high price to pay for what may be a doubtful benefit.  The Fairness Doctrine, from this angle, appeared to contain at least the seed of government control of the news.

     Keep the Fairness Doctrine or dump it?  There were in 1975, as there are today, problems–and dangers–either way.  Americans will eventually have to decide which course seems less risky.