The Return of the ‘Fairness Doctrine’

Bureaucrats are incapable of enriching public discourse

By Peyton R. Miller

The idea that the government can penalize or terminate a broadcaster for airing opinions it considers unfair might seem repugnant to American ideals. This was the reality for several decades beginning in the late 1940s, however, when the Federal Communications Commission enforced what is known as the “Fairness Doctrine.”

Since President Obama’s inauguration, several prominent Democrats, including former President Clinton and Senators Tom Harkin (D-Iowa) and Debbie Stabenow (D-Michigan), have voiced support for the reinstatement of this policy, which required broadcast license holders to “afford reasonable opportunity for the discussion of conflicting views” on “issues of public importance.” Such language immediately evokes constitutional concerns because of its potential implications with respect to freedom of the press, and many have charged that those promoting the doctrine are more interested in undermining the success of conservative talk radio than fostering meaningful debate.

Apart from these arguments, few would dispute that a vigorous exchange of ideas can play a positive role in a democratic society, but evidence suggests this policy would do more harm than good.

The FCC adopted the Fairness Doctrine in 1949 largely because of the relatively small size of the broadcast media. As Jon Sinton, founder of the left-wing Air America network and opponent of the Fairness Doctrine, notes in a recent Wall Street Journal article, most cities outside of New York, Chicago, and Los Angeles had only a few radio stations, and FCC policymakers were concerned that wealthy special interests might dominate the airwaves with one-sided news analysis and editorializing. 

The days of such limited news sources, of course, are long gone: the American media has expanded dramatically since 1949, thanks in large part to the proliferation of cable television and the internet, and it seems unlikely that a single special interest could indoctrinate the public by dominating the majority of news sources.

Even if the Fairness Doctrine effectively accomplished its stated goal of reducing media bias, it is probably no longer necessary given the tremendous variety of media available to every consumer. But the notion that the Fairness Doctrine actually broadened and diversified political debate is charitable, and there is substantial evidence to suggest that the opposite is true.

As Sinton’s article explains, the policy was created at a time when Nazi propagandist Joseph Goebbels’ use of radio to brainwash the German public remained fresh in the minds of federal regulators. Though such dangerous demagoguery has never come to dominate American airwaves, the power invested in FCC bureaucrats by the Fairness Doctrine actually facilitated thought control. As Adam Thierer of the Heritage Foundation explains in a 1993 article, both the Kennedy and Nixon administrations routinely used the policy to bully media opponents into submission.

This presumably unintended consequence is one extreme illustration of the fact that the subjective nature of “fairness” suggests that such a policy cannot be enforced by rule of law. It must be implemented on a case-by-case basis by political appointees who harbor their own ideological convictions, as would any normal person, at best, and a blatantly political agenda at worst. Such bureaucrats have the wherewithal to determine not only what set of views suffices as representative of a “fair” debate on a particular issue, but also which issues are debatable: it is not hard to imagine that left-wing bureaucrats would treat global warming as an obvious fact rather than a legitimate topic of scientific debate, or that conservative regulators would reject as laughable the notion that 9/11 was an “inside job.” The fact that a debate on either of these topics might seem reasonable to one group and outlandish to another reveals the absurdity of a universal standard of fairness. Even if there were an efficient mechanism whereby the majority of citizens could determine what constitutes fairness on a case-by-case basis, this approach would eliminate the right of ideological minorities to advocate their views, and it would be impossible to agree on how many people must share a particular opinion for it to be officially recognized.

According to Chief Justice Warren Burger, speaking for a unanimous court in 1974, “Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.” Though this particular statement was made in reference to print media, it is logical to assume that the extra effort required of broadcasters to ensure presentation of a wide spectrum of opinions as well as the potential penalties for programming that could be considered biased would discourage broadcast journalists from covering debatable issues. In many cases, this is exactly what happened: the Museum of Broadcast Communications notes the “chilling effect” of the Fairness Doctrine, whereby some journalists avoided discussion of controversial topics. Such behavior was precisely the opposite of the lively debate the FCC hoped to achieve.

In addition to its impracticality, the Fairness Doctrine ignores the fact that people tend to pay attention to opinionated journalism to reinforce their own convictions rather than to increase their knowledge of controversial subjects. This explains why liberals subscribe to The Nation, why conservatives prefer National Review, and why you are likely to get a few curious glances if seen reading the latter on Harvard’s campus. To highlight just one example, an August 2008 Rasmussen poll found that 87 percent of Fox News viewers intended to vote for John McCain, whereas those who watched CNN or MSNBC favored Barack Obama by two-to-one. It is theoretically possible that wealthy conservative interests have systematically excluded liberals from talk radio, but more likely is that there are simply many conservative listeners and thus a large market for conservative opinions. Mr. Sinton explains that he never considered advocating the revival of the Fairness Doctrine; he created Air America because of his belief that “at least half the American audience was underserved by conservative talk radio,” meaning there was an untapped market for liberal opinions, constituted by liberal listeners, from which he could profit. Even if it were possible for the Fairness Doctrine to be enforced in a universally acceptable way, people’s preference for hearing agreeable opinions would severely limit its usefulness.

In 1985, the FCC issued its Fairness Report, which explained that the Fairness Doctrine was no longer having its intended effect, and it was repealed two years later. Congress twice tried to reinstitute the policy legislatively, but both attempts were vetoed by Presidents Reagan and George H. W. Bush. Despite a few recent Democratic expressions of support for the Fairness Doctrine, White House Press Secretary Robert Gibbs has reported that the president opposes its return.

There is no need for the Fairness Doctrine. It cannot conceivably be “fair,” and would not do much good even if everyone agreed that it was properly implemented. Credit President Obama for opposing it, and let us as conservatives continue to do so.