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Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.
Byron Raymond White
United States Supreme Court Associate Justice
Today, we live in a world where the content of broadcast television and radio, as well as cable, is largely unregulated. From a free speech prospective, this should be a good thing. However, a perusal of the airwaves shows that the vast majority of television programming is about as far as one can get from a wide ranging discussion of controversial issues of public import.
The Federal Communications Commission ( FCC ) announced a policy in 1949 that came to be known as the Fairness Doctrine. Its intent was to require broadcasters to make “reasonable provision for the discussion of controversial issues of public importance,” and “to make sufficient time available for full discussion thereof.”
This rule flowed directly and naturally from the 1927 Congressional mandate that the Federal Radio Commission ( FRC ), the predecessor of the FCC, only license a radio broadcaster when such a license was in the “public convenience, interest or necessity.”
The public interest standard was not some new-fangled concept of the 1920s. Indeed, in one form or another it had been around for centuries. In the 1600’s, Lord Chief Justice Hale noted that when private property is “affected with a public interest, it ceases to be juris privati [ private property ] only.”
Lord Chief Justice Hale’s public interest concept from the common law had found its way into American statutes by the 1840s, when it was first used to regulate warehouses, railroads, and public utilities. In passing on the constitutionality of such a law in an 1876 opinion, Munn v. Illinois, the Supreme Court expanded upon the concept, stating that:
Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control.
The Court’s proclamation easily translates to the world of broadcast radio and television—indeed, it translates easily to any form of mass communication. Thus, it was not surprising that once the airwaves could be possessed and marketed, the public interest standard would be chosen to regulate them.
While Congress did adopt the public interest standard in 1927 to regulate broadcasters, it left it to the FRC and its successor, the FCC, to define what constituted the “public convenience, interest or necessity.” The Fairness Doctrine would become one of many policies and regulations that the Commission adopted to further define that standard. The Fairness Doctrine, though, was one of the most prominent. And, it had already begun to take shape in 1929 when the FRC held that:
Insofar as a program consists of discussion of public questions, public interest requires ample play for the free and fair competition of opposing views and the Commission believes that the principle applies not only to addresses by political candidates but to all discussion of issues of importance to the public.
The Commission codified its sentiment from the 1929 case in a 1949 report entitled, Editorializing by Broadcast Licensees, which provided that:
Broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints.
Thus, the Fairness Doctrine was born.
The Fairness Doctrine could be viewed as a manifestation, and, perhaps, a culmination, of progressive policies from the 1920s, which had led to the use of the public interest doctrine in the first place. Indeed, as an early Congressional proponent of broadcast regulation stated, “the right of the public to service is superior to the right of any individual to [ broadcast ].”
It is difficult to argue with the proposition that opening the airwaves to the viewpoints of all is in the public interest. However, the so-called right to listen, perhaps derived from the right to assemble or as an analogue of the right to free speech, was in direct tension with another right—that is, the broadcasters’ right to free speech—along with the broadcasters’ right to freedom of the press.
The Supreme Court has never expressly declared that there is a constitutional right to listen, although it has come very close. In Pacific Gas & Electric Co. v. Public Utilities Commission of California, the Court held that “the First Amendment protects the public’s right to receive information.” Such a concept also logically flows from a right to assemble, as the point of assembly is to listen. And, a right to listen concept was certainly on the mind of the FCC in 1946 when it observed that:
Broadcasting stations are licensed to serve the public and not for the purpose of furthering the private or selfish interests of individuals or groups of individuals. *** In a sense a broadcasting station may be regarded as a sort of mouthpiece on the air for the community it serves, over which its public events of general interest, its political campaigns, its election results, its athletic contests, its orchestras and artists, and discussion of public issues may be broadcast.
It was the public’s right to be presented with a variety of ideas that was paramount—and it was the government’s obligation to ensure that the use of the airwaves met that right.
Eventually, though, changing legal views on the Fairness Doctrine would have the broadcaster’s rights to freedom of speech and the press win out over the public’s right to listen.
The constitutionality of the Fairness Doctrine largely went unchallenged for a number of years after its introduction. Then, in 1967, the Supreme Court was provided an opportunity to review the Doctrine’s constitutionality.
In Red Lion Broadcasting Co. v. FCC, Red Lion, the owner of a Pennsylvania radio station, aired an episode of a radio program called Christian Crusade. That particular episode railed personal attacks against the author of a book, Goldwater – Extremist on the Right. After the station refused to give free reply time to the book’s author ( as required by the Fairness Doctrine ), the FCC found that Red Lion had violated the Fairness Doctrine and ordered it to provide the author with free reply time.
Before discussing the constitutionality of the Fairness Doctrine, the Court found that Congress had ratified the Doctrine, in part, in a 1959 amendment to the Communications Act of 1934. That amendment announced that the phrase public interest required broadcasters to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
Having found that the Doctrine had, in part, been statutorily ratified, the Court proceeded to analyze the policy concerns surrounding the Doctrine. Chief among these was the scarcity problem, which was one of the primary concerns behind the initial adoption of the public necessity standard. The Court encapsulated the issue as follows:
Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.
Thus, because only a few broadcasters could exist, it was the broadcaster’s right to freedom of speech and the press that had to be subservient to the public’s right “to receive suitable access to social, political, esthetic, moral, and other ideas and experiences”—that is, the right to listen. The Fairness Doctrine was therefore constitutional.
The result of the case, however, was not a vindication of the right to listen. While the derided author was permitted his free reply, the majority of stations that had carried the Christian Crusade series dropped it. Thus, the fear of litigation had chilled at least one viewpoint, as some had worried would be the result of the Fairness Doctrine all along.
In addition, some actors misused the Doctrine to their advantage. The misuse of the Doctrine reached its zenith during the Nixon years, when administration officials used it to increase operating costs for unfriendly broadcasters, including television stations the Washington Post owned.
While the Court consistently defended the Fairness Doctrine during the mid-twentieth century, in 1974 it laid the jurisprudence that would ultimately lead to its demise. In Miami Herald Publishing Co. v. Tornillo, the Court reviewed a Florida law that imposed a fairness doctrine on newspapers. Prior to that law, no legislation had ever mandated that newspapers give equal opportunity to contrary viewpoints. The Court found there was no reason to start.
Instead, it resoundingly held that the government could not regulate which viewpoints were presented in print media. The publisher’s right to freedom of speech and the press won out over the public’s right to listen to a variety of viewpoints.
The basis of Red Lion—that the airwaves were scarce—fell to the onward march of technology with the proliferation of radio and cable stations beginning in the late 1970’s. As the scarcity justification fell, so did the Fairness Doctrine.
In 1985, the FCC largely abandoned the Doctrine in its Fairness Report. It concluded that Fairness Doctrine no longer served the public interest. In fact, the Commission found that the Doctrine now operated to inhibit presentation of controversial issues, while also questioning whether the Doctrine comported with the First Amendment. Finally, the Commission found that as a result of the explosive increase in information sources, the Doctrine was no longer necessary to ensure that the public had access to a marketplace of ideas.
The fact that the Reagan administration had ushered in a wide ranging era of deregulation had much to do with the FCC’s move. Broadcasters’ dislike of the Doctrine since its inception did not help either. Proponents of the Doctrine, such as the Media Access Project and the United Church of Christ, were quickly loosing ground.
Then, in 1987, the D.C. Circuit Court in Meredith Broadcasting v. FCC held that the FCC’s determination that the Doctrine was no longer in the public interest was reasonable, even though it did not approve of the FCC’s constitutional findings. Shortly thereafter, the FCC declared the Doctrine officially dead.
That determination was also upheld by the D.C. Circuit Court in Syracuse Peace Council v. FCC.
Instead, most programming is taken up with determining who can eat the most bugs or who can shout vitriolic, partisan statements the loudest. Any viewpoint that is not the far left or the far right is given little time. There are, of course, exceptions to this rule, such as the Newshour and Meet the Press. But they seem to become fewer and more far between as each day passes.
Today, we live in a world where the content of broadcast television and radio, as well as cable, is largely unregulated. From a free speech prospective, this should be a good thing. However, a perusal of the airwaves shows that the vast majority of television programming is about as far as one can get from a wide-ranging discussion of controversial issues of public import.
Instead, most programming is taken up with determining who can eat the most bugs or who can shout vitriolic, partisan statements the loudest. Any viewpoint that is not the far left or the far right is given little time. There are, of course, exceptions to this rule, such as PBS’ Newshour and historically, at least, NBC News’ Meet the Press. But they seem to become fewer and more far between as each day passes.
However, is the current state of broadcast, satellite and cable media really an effect of the downfall of the Doctrine, or are other more insidious forces at work? The latter choice is probably the correct response. As Supreme Court Justice Brennan opined in his 1973 dissent in Columbia Broadcasting System, Inc. v. Democratic National Committee:
Under the Fairness Doctrine, the broadcaster is required to present only “representative community views and voices on controversial issues” of public importance. Thus, by definition, the Fairness Doctrine tends to perpetuate coverage of those “views and voices” that are already established, while failing to provide for exposure of the public to those “views and voices” that are novel, unorthodox, or unrepresentative of prevailing opinion.
Moreover, if one were to really try to present all viewpoints available, the airwaves would become the unintelligible garble that the Communications Act of 1934 initially sought to avoid. And, it is simply untenable to put the federal government in charge of determining what is a controversial issue and whose viewpoints should be presented regarding such issues. It should make one very uneasy indeed when the government controls the content of the airwaves.
Fairness Doctrine advocates answered these critiques by noting that the FCC always gave broadcasters wide latitude in deciding what a controversial issue was and when a contrary viewpoint needed to be presented. To prove their proposition, the advocates pointed to the fact that only a handful of Fairness Doctrine violations were ever adjudicated.
But this is no answer to the Doctrine’s critiques. That the FCC rarely enforced the Doctrine demonstrates the difficulty in regulating speech based on viewpoint. And, it is to concede that the Doctrine never really made much of a difference, except to increase litigation costs for broadcasters.
That the Doctrine was not a potent force is borne out in another observation: it was easy to avoid. Under FCC enforcement, any pretense of a counterpoint satisfied the Doctrine. For example, a clearly partisan host could characterize himself as the opposing side. Also, a broadcaster might simply choose not to present contentious issues. As Dan Rather, former managing editor of the CBS Evening News, testified before the FCC:
Not only the station manager but the newspeople as well were very much aware of this Government presence looking over their shoulders. . . . . [ There were ] newsroom conversations about what the FCC implications of broadcasting a particular report would be.
Bill Monroe, a former moderator of Meet the Press, likewise testified that television station managers “were a little afraid of government . . . [ and ] conscious of government looking over their shoulder.”
Therefore, the end of the Fairness Doctrine is probably not the cause of broadcast media’s failure to present a variety of viewpoints on controversial issues.