January 8, 2019

I have been surprised by how many times this morning somebody, including my wife, has asked me whether the networks have to give equal time to the Democrats to respond to President Donald Trump’s primetime speech tonight (As of this writing, NBC, CBS, Fox News, Fox Business Network, CNN and ABC said they will air the Democrats response.) The answer is, “No, they don’t have to.”

First, the idea of “equal time” is born out of the regulation that has to do with political advertising. Simply put, if a broadcast station sells ad time or offers free time to a candidate for an office, it has to offer similar access to other qualified candidates. The equal time rule still exists today, but the Fairness Doctrine does not.

The Federal Communications Commission abolished The Fairness Doctrine in 1987. The regulation stretched back to the Radio Act of 1927 that mandated broadcast license holder “serve the public interest.” In 1949, The FCC introduced the fairness doctrine regulation just as the FCC was issuing broadcast licenses, and when three TV networks (NBC, ABC and CBS) ruled the television airwaves. The government said it wanted to promote a “basic standard of fairness” for what was being broadcast. Congress worried that without regulation, the networks could set their own agenda and no other voices would be heard. Congress kept the concept of the Fairness Doctrine in the 1959 Communications Act.

When I started in broadcasting in the 1970s, the FCC considered, in fact, said, the Fairness Doctrine was the “single most important requirement of operation in the public interest — the sine qua non for grant of a renewal of license.” Stations would keep track of the number of minutes and seconds they dedicated to controversial issues to be sure they could document that they had given equal time to opposing voices. It was ingrained in broadcast journalists like me to “get the other side” of the story, even if the other side was a knucklehead. Today we might call it “false balance,” but it was the law then.

In 1959, senators had a lot to say about regulating “fairness.” The Senate report supporting enforced fairness included this passage:

“Broadcast frequencies are limited, and, therefore, they have been necessarily considered a public trust. Every licensee who is fortunate in obtaining a license is mandated to operate in the public interest, and has assumed the obligation of presenting important public questions fairly and without bias.”

U.S. Senator Hugh Scott of Pennsylvania wrote, “It is intended to encompass all legitimate areas of public importance which are controversial,” not just politics.

The Supreme Court danced some fancy moves to keep The Fairness Doctrine intact. In 1969, the court ruled in a case Red Lion Broadcasting Co. v. FCC in which a journalist named Fred Cook sued a Christian radio program that attacked him. Since it involved a journalist, I will quote Justice Byron White who laid out the case:

A book by Fred J. Cook titled “Goldwater — Extremist on the Right” was discussed by Rev. Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a “book to smear and destroy Barry Goldwater.”

The journalist wanted equal time to respond. The FCC agreed. A lower court agreed. The Supreme Court didn’t. That court said the airwaves are controlled exclusively by the broadcaster. The court, in that ruling, said the Fairness Doctrine lines up just fine with the First Amendment.

Just before the Supreme Court issued its ruling, the FCC revised its provision of fairness to address personal attacks. The new regulation said:

“When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack, and (3) an offer of a reasonable opportunity to respond over the licensee’s facilities.

“The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign, and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) of this section shall be applicable to editorials of the licensee).”

Justice White wrote that all of this regulation enhanced free speech.

But just five years later, the Supreme Court signaled that the Fairness Doctrine may have some cracks. In Miami Herald Publishing Co. v. Tornillo, the court said the doctrine “inescapably dampens the vigor and limits the variety of public debate.” That case did not involve an FCC regulated broadcaster. It was a newspaper that had published a couple of editorials criticizing Pat Tornillo, a candidate for the Florida legislature. Tornillo wanted the Herald to publish his responses; the paper refused. A Florida statute then required newspapers to publish responses to criticisms. The court said the law was unconstitutional. So we were left with this hard-to-justify difference in how much right you have to demand equal time on the air and in print. If one was not a violation of a free speech right, why was the other?

The FCC enforced the Fairness Doctrine right up to Ronald Reagan’s second term, but other things were happening.

In 1985, the FCC said the Fairness Doctrine was having “a chilling effect” on freedom of speech. Cable TV was finding its voice, and talk radio was boiling with criticism for Reagan. Another important (and less acknowledged) thing was going on. In the late 1980s, it became easier for broadcasters to transmit signals via satellite, which made it easier for national syndicators to distribute programs. Radio stations found it cheaper to pipe in a syndicated program than to hire local talent.

In 1987, the FCC repealed most of the Fairness Doctrine. In 2011, all of the doctrine’s provisions died. 

Many times since, members of Congress, mostly Democrats, have tried to revive the doctrine, which would require conservative talk radio, for example, to provide equal voices to Rush Limbaugh. (Conservatives called it the “Hush Rush” bill.)

Here are the key talking points about why conservatives oppose the Fairness Doctrine as laid out by The Heritage Foundation.

Remember, cable TV content is not regulated as over-the-air broadcasts are because cable does not use the “public” airwaves.

So tonight, TV stations, radio stations and cable networks can make whatever decision they wish about whether to provide equal time to the Democrats. The legal considerations are different from the ethical considerations, of course.

I got a note from Andrew Jay Schwartzman at the Georgetown University Law Center who said:

“Outside of the personal attack scenario, the Fairness Doctrine never would have required broadcasters to afford time to any particular speaker. Broadcasters could comply by presenting any opposing viewpoint, either by inviting someone with an opposing point of view or by having their own reporters or commentators to present counterarguments. In that sense, it is quite likely that, even without giving time to (Nancy) Pelosi and (Chuck) Schumer, the broadcasters probably will do whatever the Fairness Doctrine might have required in their overall programming over the next several days.”

It is interesting that in 2007, Congress was considering the Comprehensive Immigration Reform Act. The bill would have built 300 miles of vehicle barriers along the Mexican border, along with 15 camera and radar towers, and would have hired 20,000 border agents. It would also have made it easier for undocumented immigrants to become citizens. Talk radio went wall to wall attacking the plan, which died in the U.S. Senate. Talk radio hosts took credit for its death.

That was the last time anybody made a serious effort to reinstate The Fairness Doctrine. It was Mississippi Senator Trent Lott (R) who said memorably, “Talk radio is running America. We have to do something about that problem.”

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