APU Legal Studies Original

A Loss of Objectivity: Why I Miss the Fairness Doctrine

By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies

Today, the American news media is different than what it was in the 1980s. Journalism is far different for a multitude of reasons, including technology and culture.

People old enough to remember an era where the eight o’clock news was the central point of the evening for their families notice the sharp difference between that experience and today. Now, viewers can choose between less objective commentators such as Rachel Maddow and Tucker Carlson.

Maddow and Carlson’s shows are popular for a reason; they crystalize political positions and are entertaining. However, Maddow and Carlson are not true, impartial journalists, like Walter Cronkite, Dan Rather and Tom Brokaw.

One of the major turning points that has brought journalism in America to where it is today is the abrogation of the fairness doctrine. This abrogation occurred during the Reagan administration.

Related link: A New York Case Tests the Limits of Freedom of Religion

What Is the Fairness Doctrine?

The fairness doctrine was a Federal Communication Commission (FCC) policy that attempted to ensure that “broadcast stations’ coverage of controversial issues was balanced and fair.” The policy was developed over a long period of time.

The fairness doctrine required that news stations operate with two basic elements:

1. Broadcasters must use their airtime to discuss issues that are of public interest and in controversy.

2. News outlets are obligated to present opposing views on controversial subjects, rather than one single viewpoint that conforms to political party lines. The fairness doctrine did not dictate precisely how it should be executed. In addition, it did not require equal time for opposing views, just that an opposing view be presented. 

The fairness doctrine sounds great on paper. Its goals are to ensure a robust public discussion and to abide by the most important tenets of journalism, including ethics and fair coverage.

The Supreme Court upheld the fairness doctrine in a famous case, Red Lion Broadcasting Co. v. Federal Communications Commission. It involved the Red Lion Broadcasting Company that operated a Pennsylvania radio station, WGCB.

According to Open Jurist, “On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis. Hargis had a show called ‘Christian Crusade’ series. In this show, he discussed a book by Fred J. Cook entitled ‘Goldwater—Extremist on the Right’; Hargis attacked Cook on air saying Cook had been fired by a newspaper for making false charges against city officials; that Cook worked for a Communist-affiliated publication; that he had attacked J. Edgar Hoover and the Central Intelligence Agency; and that the book he wrote on Goldwater was nothing by smear and meant to destroy Barry Goldwater as a political candidate.”

When Cook heard of the broadcast, he demanded some reply time based on the fairness doctrine. WGCB refused, stating that Hargis bought time on air to broadcast his show and Cook could pay for the same broadcast time.

However, the FCC ruled that Cook had a right to reply for free and that WGCB failed to meet its obligation under the fairness doctrine. The case went all the way to the Supreme Court and the Supreme Court’s decision upheld the fair doctrine, stating that the case did not infringe on the right for free speech as codified in the First Amendment:

“We need not deal with the argument that even if there is no longer a technological scarcity of frequencies limiting the number of broadcasters, there nevertheless is an economic scarcity in the sense that the Commission could or does limit entry to the broadcasting market on economic grounds and license no more stations than the market will support. Hence, it is said, the fairness doctrine or its equivalent is essential to satisfy the claims of those excluded and of the public generally. A related argument, which we also put aside, is that quite apart from scarcity of frequencies, technological or economic, Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views presented to the public through time sharing, fairness doctrines, or other devices which limit or dissipate the power of those who sit astride the channels of communication with the general public.”

Related link: The Supreme Court Defines Its Jurisdiction in WWII Art Case

The Problems of the Fairness Doctrine

While the fairness doctrine looks great on paper, it has certain problems. The fairness doctrine could be weaponized by political groups, and it has been used as a weapon several times.

For instance, the Kennedy administration utilized the fairness doctrine as a political weapon. According to the Cato Institute, “In 1963, JFK negotiated the Nuclear Test Ban Treaty with the Soviet Union. He planned to make it the centerpiece of his re‐​election bid. The Radio Right attacked it ceaselessly during the summer of ’63. This mattered, because Kennedy needed two‐​thirds of the Senate for treaty ratification.

So the White House secretly organized a front organization—the Citizens Committee for a Nuclear Test Ban—to threaten stations that aired conservative criticisms of the treaty with Fairness Doctrine complaints unless they were given free response time. The plan was a success, hundreds of hours of free pro‐​treaty airtime was secured, and the treaty passed by a comfortable margin.”

What We Have Lost by Abandoning the Fairness Doctrine

Ultimately, we are paying a price for the disappearance of the fairness doctrine. There are fewer great journalists in the sense of Bob Woodward and Carl Bernstein.

In the New York City area, for example, you can choose between WNYC’s Brian Lehrer from the left or WABC’s Mark Levin on the right. Both journalists are very similar in many ways; they are amazing personalities who know the power of radio.

However, their shows are echo chambers that are meant first and foremost to validate the listeners’ existing opinions, however prejudiced and partisan those opinions may be. Last month, Francis Fukuyama of Stanford University published a book, “Liberalism and Its Discontents.” It discusses the current attack by the right and the left on classical liberalism and the need to have a freedom of speech that protects the free exchange of ideas in the public arena.

This free exchange of ideas will help the public to make more informed decisions. We need more of that.

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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