Fairness Doctrine: History and Constitutional Issues
Prepared for Members and Committees of Congress
The Fairness Doctrine was a policy of the Federal Communications Commission (FCC or
Commission) that required broadcast licensees to cover issues of public importance and to do so
in a fair manner. Issues of public importance were not limited to political campaigns. Nuclear
plant construction, workers’ rights, and other issues of focus for a particular community could
gain the status of an issue that broadcasters were required to cover. Therefore, the Fairness
Doctrine was distinct from the so-called “equal time” rule, which requires broadcasters to grant
equal time to qualified candidates for public office, because the Fairness Doctrine applied to a
much broader range of topics.
In 1987, after a period of study, the FCC repealed the Fairness Doctrine. The FCC found that the
doctrine likely violated the free speech rights of broadcasters, led to less speech about issues of
public importance over broadcast airwaves, and was no longer required because of the increase in
competition among mass media. The repeal of the doctrine did not end the debate among
lawmakers, scholars, and others about its constitutionality and impact on the availability of
diverse information to the public.
The debate in Congress regarding whether to reinstate the doctrine continues today. In the 109th
Congress, bills such as H.R. 3302 were introduced to reinstate the Fairness Doctrine. However, in th
the 110 Congress, the proposed legislation related to the Fairness Doctrine would have
prohibited the FCC from reinstating it. In the Consolidated Appropriations Act of 2008, Congress
forbade the FCC to use any of the funds appropriated to it under the act to reinstate the Fairness
Doctrine. This prohibition continues, temporarily, under the continuing resolution now in effect.
Once the restriction on spending is lifted, the FCC will be free to reinstate the Fairness Doctrine if
the agency so chooses. Congress also may introduce legislation to reinstate the doctrine.
Any attempt to reinstate the Fairness Doctrine likely would be met with a constitutional
challenge. Those opposing the doctrine would argue that it violates their First Amendment rights.
In 1969, the Supreme Court upheld the constitutionality of the Fairness Doctrine, but applied a
lower standard of scrutiny to the First Amendment rights of broadcasters than it applies to other
media. Since that decision, the Supreme Court’s reasoning for applying a lower constitutional
standard to broadcasters’ speech has been questioned. Furthermore, when repealing the doctrine,
the FCC found that, as the law stood in 1987, the Fairness Doctrine violated the First Amendment
even when applying the lower standard of scrutiny to the doctrine. No reviewing court has
examined the validity of the agency’s findings on the constitutional issue. Therefore, whether a
newly instituted Fairness Doctrine would survive constitutional scrutiny remains an open
Introduc tion ..................................................................................................................................... 1
The Fairness Doctrine.....................................................................................................................1
Foundations of the Fairness Doctrine........................................................................................1
Enforcement of the Fairness Doctrine.......................................................................................3
Red Lion Broadcasting Co., Inc. v. FCC...................................................................................4
Repeal by the FCC....................................................................................................................5
Application of the Fairness Doctrine to Broadcast Licensees...................................................8
Standard of Scrutiny...........................................................................................................8
The Constitutionality of the Fairness Doctrine as Applied to Broadcast Licensees.........10
Application of the Fairness Doctrine to Cable and Satellite Providers...................................12
Continuing Congressional Debate.................................................................................................13
H.R. 501, Fairness and Accountability in Broadcasting Act.............................................13
H.R. 3302, Media Ownership Reform Act of 2005..........................................................13 th
H.R. 2905, S. 1742, S. 1748, Broadcaster Freedom Act of 2007......................................13
H.R. 2829, Making appropriations for Financial Services and General
Government for the fiscal year ending September 30, 2008, and for other
purposes ......................................................................................................................... 13
H.R. 2764, Consolidated Appropriations Act, 2008, P.L. 110-161...................................14
Author Contact Information..........................................................................................................14
For over 30 years, the Federal Communications Commission required broadcast licensees to
present controversial issues of public importance and to do so in a manner that was fair and
balanced. This requirement came to be known as the “Fairness Doctrine.” In practice, it required
broadcasters to identify issues of public importance, decide to cover those issues, and then to
afford the best representatives of the opposing views on the issue the opportunity to present their
case to the community.
Many broadcasters complained that the Fairness Doctrine was overly burdensome and inhibited
their ability to cover issues of public importance. Those in favor of the doctrine believed that it
ensured vibrant discussion over the public airwaves. After a number of proceedings examining
the effects of the Fairness Doctrine on broadcasters, the FCC abolished the doctrine in 1987. The
FCC reasoned that increased competition in the marketplace, First Amendment concerns, and
evidence that the Fairness Doctrine actually chilled speech rather than facilitating it justified
abandoning the policy.
Discussion continues amongst scholars and lawmakers regarding the Fairness Doctrine’s
effectiveness, constitutionality, and reinstatement. Some believe the Fairness Doctrine should be
resurrected to promote public discourse, while others believe the doctrine should never be th
reinstated because it inhibits the free exchange of ideas. For example, as recently as the 109
Congress, bills were introduced in Congress to reinstate the Fairness Doctrine. On the other hand, th
in the 110 Congress, there were a number of bills introduced that would have prevented the FCC
from reinstating the Fairness Doctrine.
This report will discuss the history of the Fairness Doctrine, enforcement of the doctrine by the
FCC, abolition of it by the FCC, efforts to effect and to prevent its reinstatement, and potential
constitutional issues with reinstating the doctrine as applied to broadcasters and as applied to
satellite and cable television providers. It will be updated as warranted.
Early communications legislation established the American system for broadcasting, in which 1
licenses to broadcast are granted to private individuals (or corporations). Those without a license 2
are not permitted to broadcast. This scheme prevents interference from competing broadcasters.
It also guarantees that some speakers who wish to communicate via broadcast airwaves cannot do
Recognizing that this structure prevented many who would wish to communicate via broadcast
from doing so, and that individuals who were able to obtain a license had control over the content
See The Radio Act of 1927, P.L. 69-632, ch. 169, 44 Stat. 1162 (1927).
2 47 U.S.C. § 301.
the stations broadcast, Congress required that broadcast licenses may be granted only when the 3
licenses serve the public interest. The FCC is charged with enforcing this provision by
considering the public interest when granting licenses to broadcasters, renewing them, and 4
modifying them. Furthermore, the FCC is required “from time to time, as public convenience,
interest or necessity requires” to promulgate “such rules and regulations and prescribe such
restrictions and conditions ... as may be necessary to carry out the provisions of” the 5
Communications Act. The Supreme Court has noted that these provisions provide the FCC with 6
an expansive mandate to ensure that broadcast stations operate in the public interest.
In the spirit of this broad mandate, the FCC favored granting and renewing licenses to broadcast
stations that presented more than one viewpoint in their programming. This preference evolved
over time. In 1949, finding its authority in the public interest obligations imposed upon
broadcasters by the Communications Act, the FCC issued a report entitled “In the Matter of 7
Editorializing by Broadcast Licensees.” The report affirmatively established the duty of
broadcast licensees to cover controversial issues of public importance in a fair and balanced 8
manner. The obligation is known as the Fairness Doctrine.
The Fairness Doctrine consisted of two basic requirements:
(1) that every licensee devote a reasonable portion of broadcast time to the discussion and
consideration of controversial issues of public importance; and
(2) that in doing so, [the broadcaster must be] fair – that is, [the broadcaster] must
affirmatively endeavor to make ... facilities available for the expression of contrasting 9
viewpoints held by responsible elements with respect to the controversial issues presented.
These obligations were not satisfied by simply granting air time to those who requested it in order 10
to respond to an issue previously discussed during the broadcaster’s regular programming.
Broadcasters instead had the affirmative duty to determine what the appropriate opposing 11
viewpoints were on these controversial issues, and who was best suited to present them. If
sponsored programming was not an option, the broadcasters had to provide it at their own 12
Further requirements of the Fairness Doctrine were eventually codified into regulation. The
personal attack rule stated that when personal attacks were made on individuals involved in
public issues, the broadcaster had to, within one week of the broadcast, notify the person
47 U.S.C. § 307.
4 47 U.S.C. §§ 307, 309.
5 47 U.S.C. § 303.
6 National Broadcasting Co. v. U.S., 319 U.S. 190, 219 (1943).
7 13 FCC Rept. 1246 (1949) [hereinafter “Report on Editorializing”].
9 Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg.
10 Report on Editorializing, 13 FCC at 1249.
12 This obligation is widely referred to as the Cullman Doctrine, because it originated in the FCC decision Cullman
Broadcasting Co., 40 FCC 576 (1976).
attacked, provide him with a copy of the broadcast (either script or tape), and allow him an 13
opportunity to respond over the broadcaster’s facilities. The political editorial rule required that
when a broadcaster endorsed a particular political candidate, the broadcaster was required to
provide the other qualified candidates for the same office (or their representatives) the 14
opportunity to respond over the broadcaster’s facilities.
Congress amended Section 315 of the Communications Act in 1959 to include what seemed to be 15
a tacit approval of the FCC’s Fairness Doctrine. Section 315 imposes the requirement upon
broadcasters to grant equal broadcasting time to political candidates with certain exceptions. The
amendment pertaining to the Fairness Doctrine states the following:
Nothing in the foregoing sentence [creating exemptions from the equal time requirements]
shall be construed as relieving broadcasters, in connection with the presentation of
newscasts, news interviews, news documentaries, and on-the-spot, from the obligation
imposed upon them under this chapter to operate in the public interest and to afford
reasonable opportunity for the discussion of conflicting views on issues of public
In its report on the amendment, the House explained that this provision “is a restatement of the
basic policy of the ‘standard of fairness’ which is imposed on broadcasters under the 16
Communications Act of 1934.” Debate arose in subsequent years over whether this addition to
Section 315 codified the Fairness Doctrine, or merely stated Congress’s intent to avoid
interference with the FCC’s enforcement of the Fairness Doctrine. This debate will be addressed
in full in the section of this report addressing the repeal of the Fairness Doctrine.
In reviewing particular broadcasts for potential violations of the Fairness Doctrine, the FCC
looked to whether the licensee had acted “reasonably and in good faith to present a fair cross-17
section of opinion on the controversial issue.” The FCC emphasized that harmless errors and
honest mistakes were not actionable and that the merits of the actual competing viewpoints
presented were not under review by the agency. By way of example, in the course of enforcing
the doctrine, the FCC found that the establishment of a National Fair Employment Practices
Commission was an issue of public importance that triggered Fairness Doctrine obligations, as
were issues such as the potential institution of pay TV, a nutritionist giving advice about diet and 18
health, programs describing socialist forms of government, etc. Consequences for failure to
comply with the Fairness Doctrine could have ranged anywhere from a requirement that time be
granted to unaired viewpoints, to punishment as severe as a loss of license or a substantial 19
demerit in a comparative renewal proceeding.
47 C.F.R. §§ 73.123, 73.300, 73.598, 73.679.
15 47 U.S.C. § 315; 47 C.F.R. § 73.1910 (1985).
16 H.Rept. 86-1069, 86th Cong., 1st sess., August 27, 1959 at 5.
17 Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg.
19 See In the Matter of Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning
Alternatives to the General Fairness Doctrine Obligations of Broadcast Licensees, 2 FCC Rcd 5272 (1987).
In Red Lion Broadcasting Co., Inc. v. Federal Communications Commission (Red Lion), decided
in 1969, the Supreme Court took up two questions related to the Fairness Doctrine. First, the
Court addressed whether the FCC had the authority to create and to enforce the Fairness 20
Doctrine. Second, the Court examined whether requiring broadcasters to cover issues of public
importance and to present opposing views on those issues fairly violated the broadcasters’ First
Amendment rights to free speech.
Specifically at issue in Red Lion were the personal attack and political editorial rules noted above.
Two separate cases had been consolidated for review by the Supreme Court. In the first case, the
Red Lion Broadcasting Company (a Pennsylvania radio station) had broadcast a program in
which Reverend Billy James Hargis described author Fred J. Cook as having been fired for
making false charges against city officials, having worked for a Communist-affiliated publication, 21
having defended Alger Hiss, and having attacked J. Edgar Hoover. Cook heard the broadcast
and demanded reply time, but the station refused. The FCC found that the station had failed to
meet its obligations under the Fairness Doctrine, a decision that was upheld on appeal to the
Court of Appeals for the D.C. Circuit. The broadcast station appealed to the Supreme Court. The
second case was a direct challenge to the constitutionality of the political editorial and personal
attack regulation. The regulations were held to be unconstitutional under the First Amendment by
the Seventh Circuit Court of Appeals and the FCC appealed.
The Supreme Court found that the FCC was within its authority to implement the regulations at 22
issue in the second case and to issue the decision in Red Lion. In the estimation of the Court, the
agency was implementing the policy of Congress “rather than embarking on a frolic of its own.”
The Court traced the history of the Fairness Doctrine, noting that broadcast spectrum was
originally unregulated and the result was chaos. The Court found that Congress decided that the
best solution was to take control of access to the broadcast spectrum and regulate its allocation in
a manner consistent with the public interest. Congress granted the power to choose broadcast
licensees to the FCC and instructed the agency to consider the public interest when exercising
In order to exercise that authority, the Supreme Court noted that the FCC needed to determine
what broadcasting in the public interest meant. From its inception, the FCC (and its predecessor
agency, the Federal Radio Commission) held the view that the “public interest requires ample
play for the free and fair competition of opposing views, and the Commission believes that the 23
principle applies ... to all discussion of issues of importance to the public.” Enforcement of this
general policy continued until the FCC issued its report “In the Matter of Editorializing by
Broadcast Licensees” in 1949, which set out the basic requirements of the Fairness Doctrine as it 24
would exist throughout its life. Then in 1959, Congress chose to include in its amendment to
Section 315 of the Communications Act of 1934 a specific ratification of the Fairness Doctrine. In
395 U.S. 367 (1969).
21 Id. at 371-373.
22 Id. at 375-386.
23 Great Lakes Broadcasting Co., 3 F.R.C. Ann. Rep. 32, 33 (1929), rev’d on other grounds, 37 F.2d 993, cert.
dismissed, 281 U.S. 706 (1930).
24 Report on Editorializing, 13 FCC at 1246 - 1270.
light of this evidence, the Supreme Court held that the Fairness Doctrine was a legitimate exercise
of the FCC’s congressionally delegated authority.
The broadcasters also argued that the Fairness Doctrine impinged upon their First Amendment
right to freedom of speech. They contended that it was their right to broadcast whatever they
chose and to exclude whom they wished from their frequencies. The Supreme Court rejected this
argument for a number of reasons, but the most often cited has come to be known as the scarcity
rationale. The Court said:
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 25
The Supreme Court, therefore, upheld the constitutionality of the Fairness Doctrine and the
personal attack/political editorial regulation. However, the history of the doctrine would not end
In the 1980s, the FCC began to question the continued necessity of the Fairness Doctrine. As a
result, the Commission undertook to examine its application of the Fairness Doctrine, the
doctrine’s effects on broadcasters, and the constitutionality of the doctrine in light of 26
developments in First Amendment law. In 1985, the FCC released an order addressing three
main questions related to the Fairness Doctrine: (1) whether the doctrine was constitutionally
permissible under then-current marketplace conditions and First Amendment Jurisprudence; (2)
whether the doctrine actually chilled rather than encouraged free speech; and, (3) whether the
doctrine was codified into law by either Section 315 or the general public interest standard in the 27
The Commission acknowledged that the Supreme Court had upheld the constitutionality of the
Fairness Doctrine in Red Lion, but determined nonetheless that the constitutionality of the 28
Fairness Doctrine had become suspect. The Commission looked to the development of First
Amendment law following the Red Lion decision and determined that the evolution of free speech
in mass communications cases along with developments in broadcast technology potentially 29
undermined the constitutionality of the Fairness Doctrine. The FCC recognized, however, that it
is the province of the courts to pass upon the constitutionality of its policies and declined to pass
on the constitutionality of the doctrine.
Id. at 390 (citations omitted).
26 General Fairness Doctrine Obligations of Broadcast Licensees, Report, 50 Fed. Reg. 35418 (1985).
28 Id. at 35420.
The Commission examined the effect of its enforcement of the Fairness Doctrine upon 30
broadcasters and came to the conclusion that the doctrine chilled speech substantially. The
Commission noted that enforcement actions usually occurred under the second prong of the
Fairness Doctrine. In other words, broadcasters most often were determined to have violated the
doctrine by failing to provide all valid opposing viewpoints air time on a given issue.
Broadcasters rarely faced enforcement for failing to address issues of public importance in the
first place. As a result, broadcasters could avoid the expense of defending enforcement actions by
simply refusing to cover issues of public importance. As evidence, the Commission noted
instances cited in the comments of planned coverage of issues of public importance being 31
jettisoned for fear of Fairness Doctrine lawsuits, as well as refusals on the part of broadcasters
to carry certain paid programming that they feared would trigger their Fairness Doctrine 32
The Commission could not determine, however, whether the Fairness Doctrine had been codified 33
by Congress in Section 315 of the Communications Act. The agency observed that the
legislative language was ambiguous as to whether Congress had intended to approve the 34
Commission’s authority to enforce the doctrine or to create a new statutory requirement.
Evidence culled from the legislative history also was of little help in determining the intent of 35
Section 315. Furthermore, pending before Congress at the time were bills related to the Fairness
Doctrine. Accordingly, the FCC declined to repeal the doctrine in 1985, and chose to wait for 36
further guidance from Congress on the issue. Despite declining to repeal the doctrine, the
agency made clear its belief that the most effective way to encourage the free exchange of ideas
over broadcast was to have an open and unregulated marketplace of ideas.
In 1986, the U.S. Court of Appeals for the District of Columbia held that Congress had not 37
codified the Fairness Doctrine. Section 315, according to the court, “ratified the Commission’s
longstanding position that the public interest standard authorize[d] the Fairness Doctrine,” but did
Id. at 35422.
31 For example, the Commission cited a Southern California radio station that decided not to air a series on religious
cults despite having already invested resources in its preparation. The decision, according to the radio station, was
based upon the assessment of costs related to a potential Fairness Doctrine challenge. Id. at 35427.
32 Specifically, the Commission cited comments from organizations such at the Glass Packaging Institute and the
National Rifle Association. These commenters had documented difficulty in placing advertisements related to ballot
measures due to Fairness Doctrine concerns. Id. at 35429.
33 Id. at 35453.
34 Id. at 35448.
35 Id. at 35449. The Senate Committee Report provided that
In recommending this legislation, the committee does not diminish or affect in any way Federal
Communications Commission policy or existing law which holds that a licensee’s statutory
obligation to serve the public interest is to include the broad-encompassing duty of providing a fair thst
cross-section of opinion ... S.Rep.No. 562, 86 Cong., 1 Sess. at 13 (1959).
This language appears to suggest that Congress did not intend to codify the Fairness Doctrine. However, in debate on
the floor, some Members indicated their belief that the Fairness Doctrine amendment would codify the doctrine. One
Member said, for example, that the Fairness Doctrine amendment “was the one condition we could write into the law to
make sure the Federal Communications Commission would give the matter the right interpretation.” 105 Cong. Rec.
36 50 Fed. Reg. at 35453.
37 Telecommunications Research and Action Center v. Federal Communications Commission, 801 F.2d 501, 516
(1986); cert. denied, 482 U.S. 919 (1987).
not “create [or] impose any obligation” on the Commission to enforce the Fairness Doctrine.38
The Supreme Court declined to review this case.
Following this decision, Congress directed the FCC to examine alternatives to the Fairness 39
Doctrine and to submit a report to Congress on the subject. The FCC opened a proceeding
seeking public comment on alternative means of administration and enforcement of the Fairness 40
Doctrine. Alternatives were analyzed including abandoning a case-by-case enforcement
approach, replacing the doctrine with open access time for all members of the public, doing away 41
with the personal attack rule, and eliminating certain other aspects of the doctrine. The
Commission rejected each of these alternatives for various reasons. This, however, was not the
proceeding in which the Commission repealed the Fairness Doctrine.
The repeal of the doctrine occurred later in 1987. In a complaint against the television station
WTVH Syracuse, NY, the FCC declined to sanction the broadcast station for a violation of the
Fairness Doctrine, because the agency determined that the Fairness Doctrine violated the First 42
Amendment. The FCC repeated its findings from its 1985 report and argued that the scarcity
rationale underpinning the Supreme Court’s Red Lion decision was no longer valid. The agency
also noted that
the doctrine’s affirmative use of government power to expand broadcast debate would seem
to raise a striking paradox, for freedom of speech has traditionally implied an absence of
governmental supervision or control. Throughout most of our history, the principal function
of the First Amendment has been to protect the free marketplace of ideas by precluding 43
The Fairness Doctrine, on the other hand, requires the government to make subjective judgments
regarding which issues are of public importance and which points of view on those issues are
significant enough to require broadcasters to cover them. The Commission expressed discomfort
with its role in the editorial decisions being made by broadcasters and posited that such 44
government involvement in these decisions ran contrary to the First Amendment.
The Commission noted that many of the regulations it applies to broadcasters would be
unconstitutional if applied to print media. The Commission also recognized, however, that speech
restrictions placed upon broadcasters were subject to a lesser degree of constitutional scrutiny
than restrictions placed on print media. The agency therefore conducted its analysis of the
constitutionality of the Fairness Doctrine under the standard set forth in Red Lion and examined
39 Making Continuing Appropriations for Fiscal Year 1987, P.L. 99-500. See also, Conference Report to Accompany
H.J.Res. 738, H.Rept. 99-1005. 99th Cong., 2d Sess. (1986).
40 Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning Alternatives to the General
Fairness Doctrine Obligations of Broadcast Licensees in MM Docket No. 97-26, 2 FCC Rcd 1532 (1987).
41 In the Matter of Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning Alternatives to
the General Fairness Doctrine Obligations of Broadcast Licensees. 2 FCC Rcd 5272 (1987).
42 In re Complaint of Syracuse Peach Council against Television Station WTVH Syracuse, New York, 2 FCC Rcd 5043
43 Id. at 5056.
44 Id. at 5044.
whether the Fairness Doctrine was “narrowly tailored to achieve a substantial government 45
The Fairness Doctrine was promulgated and enforced by the Commission in order to serve the
public interest in access to an open and robust marketplace of ideas. The Commission had
determined that the doctrine chilled the speech of broadcasters and inhibited free and open debate
on the public airwaves. In the Commission’s estimation, therefore, the Fairness Doctrine actually
disserved the public interest and did not advance the substantial government interest in ensuring 46
public access to diverse debate on the airwaves. The Commission further argued that the
Supreme Court should reconsider its application of a lower degree of First Amendment protection
to broadcasters and that the First Amendment should protect media equally regardless of their 47
delivery method. This case was appealed to the D.C. Circuit Court of Appeals. The court upheld 48
the order of the FCC, but did not reach the constitutional issue.
Because of the FCC ruling determining that the Fairness Doctrine violated the First Amendment,
it is likely that any reinstatement of the doctrine, either by Congress or by the FCC, would be met
by a court challenge on First Amendment grounds. Such a challenge may reach the Supreme
Court of the United States, inviting the Court to reconsider Red Lion. In reviewing the
constitutionality of the Fairness Doctrine as applied to broadcast licensees, the Court would likely
be faced with two questions: (1) what standard of constitutional scrutiny to apply, and (2) whether
the Fairness Doctrine withstands the chosen level of scrutiny.
Government restrictions upon speech that are dependent upon the content of that speech are
normally accorded strict scrutiny, the highest level of constitutional analysis and the most difficult 49
for a law to survive. The Fairness Doctrine is a content-based restriction on speech because it
requires a government agent, the FCC, to examine the speech of private actors and to make
subjective judgments regarding the fairness of the speech. In most circumstances, such a
restriction would be reviewed under strict scrutiny, which requires the government to prove that
the law is necessary to achieve a compelling government interest, and that the law is the least 50
restrictive means of achieving that interest. The Supreme Court has struck down laws similar to 51
the Fairness Doctrine when applying strict scrutiny. It seems, therefore, that if the Supreme
Court were to apply strict scrutiny to the Fairness Doctrine the doctrine would be struck down.
Id. at 5049.
47 Id. at 5058.
48 Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1988).
49 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1986).
51 See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (invalidating a Florida law that required
In Red Lion, however, the Supreme Court determined that restrictions on the speech of
broadcasters should be accorded a lesser standard of constitutional scrutiny, known as 52
intermediate scrutiny. Intermediate scrutiny requires the government to prove that the restriction
on speech advances a substantial government interest and that the law is narrowly tailored
(though not necessarily the least restrictive alternative) to achieve that interest. The Supreme
Court reasoned that the scarcity of broadcast spectrum and the need to assure public access to a
variety of viewpoints over the broadcast spectrum provided a basis for applying intermediate 53
scrutiny in these circumstances.
The FCC argued in its 1987 decision that the scarcity rationale was no longer applicable.54 The
agency noted an increase in the number of broadcast stations since the Red Lion decision. The
agency also noted the increase in information sources and viewpoints available to the public via
cable and satellite channels. Today, a party arguing against the scarcity rationale could take note
of the dramatic increase in the ease of the communication of ideas via the Internet. It could be
argued that these technological advances render the scarcity rationale obsolete.
The Supreme Court has had the opportunity to address this argument repeatedly and has 55
consistently reaffirmed the validity of the scarcity rationale. Despite the increased number of
broadcast outlets and the increase in methods of mass information delivery (including cable,
satellite, and the Internet), the fact remains, according to the Court, that not every individual who 56
wishes to operate a broadcast station may do so. The Supreme Court also has said that broadcast 57
content is unique in American media. It is free over the air to anyone with a television or a radio
within range of a signal. Broadcast, therefore, is distinct from cable, satellite, and the Internet,
which are all services for which consumers must pay. Another possible reason the court may be
disinclined to repudiate the scarcity rationale is the increased consolidation in ownership of media 58
outlets, including broadcast stations. If many of the broadcast stations across the country are
owned by the same few large corporations, the argument that there exists an increased number of
information sources in the broadcast marketplace may be more difficult for the Court to accept.
It is possible that, in light of the proliferation of different types of media outlets since Red Lion,
the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to
restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely
begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine.
Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when
newspapers to allow individuals space to reply to attacks made against them in the publication).
52 Red Lion, 395 U.S. at 386.
53 Id.; Columbia Broadcasting System Inc. v. Democratic National Committee, 412 U.S. 94, 101 (1973) (holding that
[broadcast] frequencies are a scarce resource).
54 In re Complaint of Syracuse Peace Council, 2 FCC Rcd at 5048.
55 See e.g. FCC v. League of Women Voters, 468 U.S. 364 (1984) (striking down a ban on editorializing by non-
commercial broadcasters); FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (upholding regulations of indecent content
56 CBS v. FCC, 412 U.S. at 101.
57 FCC v. Pacifica Foundation, 438 U.S. at 748-749 (noting that broadcast stations have established a uniquely
pervasive presence in the lives of all Americans).
58 See, Free Press, Who Owns the Media? http://www.freepress.net/resources/ownership.
applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review 59
under strict scrutiny.
It is also possible that the Supreme Court will maintain the scarcity rationale for applying a lower
standard of scrutiny to restrictions on broadcasters’ speech and will continue to apply
intermediate scrutiny to the Fairness Doctrine.
Assuming that the Supreme Court would continue to apply intermediate scrutiny to government
restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness
Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness 60
Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The
Court also may choose to analyze a newly established Fairness Doctrine in light of evidence
regarding its effects on speech that has developed since the Red Lion decision. To do so, it would
have to answer two questions: (1) whether the Fairness Doctrine advances a substantial
government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.
The government has a well-established substantial interest in ensuring access of the public to a 61
diversity of viewpoints and information sources in a robust marketplace of ideas. If the Supreme
Court determines that the Fairness Doctrine chills speech rather than encourages a robust
exchange of ideas, it is likely that the Court would conclude that the Fairness Doctrine does not
advance the government’s interest in a well-informed citizenry and is unconstitutional. If,
however, the Court finds that the Fairness Doctrine continues to advance a substantial
government interest, the Court would move on to the next step in the constitutional analysis.
The Fairness Doctrine was originally promulgated under the FCC’s authority to grant licenses to 62
broadcasters that serve the public interest. The public interest standard in the Communications 63
Act necessarily implicates the First Amendment. The Fairness Doctrine was intended to advance
the government interest in ensuring the presence of a diversity of viewpoints over broadcast
stations and to prevent broadcasters from monopolizing the airwaves with their personal 64
interests. Under this theory, the public’s right to receive information would be protected from
any tendency on the part of broadcasters only to communicate information of which they
approved or agreed. Citing this reasoning, the Supreme Court, in Red Lion, upheld the
constitutionality of the Fairness Doctrine.
See FCC v. Pacifica, 438 U.S. at 748 (noting that the First amendment protects publishers from being required to
print replies, but provides broadcasters with no such protections); Miami v. Tornillo, 418 U.S. at 241 (invalidating a
law that required newspapers to allow individuals to respond to personal attacks).
60 Black’s Law Dictionary 661 (2d Pocket ed. 2001).
61 Associated Press v. United States, 326 U.S. 1, 20 (1945); New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
62 In the Matter of Editorializing by Broadcast Licensees, 13 FCC 1246 (1949).
63 FCC v. League of Women Voters, 468 U.S. at 377.
64 See Report on Editorializing, 13 FCC at 1246.
Opponents of the Fairness Doctrine have argued that the doctrine actually inhibits the free
exchange of ideas over the broadcast airwaves. The Red Lion Court noted in particular that, at the 65
time the decision was rendered, there was no evidence that the Fairness Doctrine chilled speech.
The Court observed that, if such a theory were proven true, the FCC was not powerless to insist
that broadcasters give coverage to issues of public importance.
In its 1985 report and 1987 decision repealing the doctrine, the FCC cited numerous instances in
which broadcasters claimed to have refused to air certain pieces or cover issues for fear of 66
Fairness Doctrine enforcement. The agency further noted that the cost of defending Fairness
Doctrine complaints could amount to significant sums of money and manpower, and could deter 67
coverage of issues of public importance even further. The FCC also noted the disparity between
enforcement of the first prong of the doctrine (which requires coverage of issues of public
importance) and the second prong (which requires significant views on those issues to be given 68
fair coverage). The agency explained that its own difficulty in enforcing the first prong arose
because it received far fewer complaints regarding the failure to cover an important issue.
Therefore, broadcasters could avoid enforcement actions for violations of the Fairness Doctrine
by simply not covering the issue of public importance at all. The FCC may not be able to rectify
this enforcement disparity in a cost-efficient manner, because any solution would require the
agency to monitor the programming of all broadcasters at all times and to know which issues are
of most importance to which communities. Such constant and far-reaching oversight may be
beyond the capacity of any agency.
However, unlike other regulations on broadcaster speech that have been struck down, the Fairness 69
Doctrine requires that speech be answered with more speech. This aspect of the doctrine has
been cited approvingly by the Supreme Court. The Fairness Doctrine does not single out any one 70
point of view as objectionable or off-limits. Instead, it requires that all significant points of view
on issues of public importance receive broadcast time. This is a tenet at the core of the First
Amendment, and it could be argued that the doctrine achieved its goal of raising the level of
debate on the broadcast airwaves, despite the FCC’s findings in the 1980s.
If the Supreme Court is persuaded by the argument that the Fairness Doctrine chills speech rather
than encourages a robust exchange of ideas, the Court may find that the doctrine does not
advance the government’s interest in a well-informed citizenry. If the Court finds the doctrine
does not advance that substantial government interest, the Court will strike it down as
unconstitutional. If, however, the Court is persuaded by the argument it accepted in Red Lion (that
the Fairness Doctrine advances the substantial government interest in a robust marketplace of
ideas), the Court would move on to the next step in the constitutional analysis.
Red Lion, 395 U.S. at 393-394.
66 General Fairness Doctrine Obligations of Broadcast Licensees, Report, 50 Fed. Reg. at 35418; In re Complaint of
Syracuse Peach Council against Television Station WTVH Syracuse, New York, 2 FCC Rcd. at 5043.
67 General Fairness Doctrine Obligations of Broadcast Licensees, Report, 50 Fed. Reg. at 35418.
68 Id. at 35422.
69 See FCC v. League of Women Voters, 468 U.S. at 372.
70 See Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.
Reg. at 10416.
The next question the Court would address is whether the Fairness Doctrine would be narrowly
tailored to achieve the government’s interest. Under the previous enforcement regime the FCC 71
examined each potential violation of the Fairness Doctrine on a case-by-case basis. This tactic 72
led to a measure of flexibility in penalties for violators and in the evolution of the doctrine. Such
flexibility enabled the Commission to be more responsive in its enforcement and to tailor each
enforcement proceeding to the facts at issue in each case. In upholding the previous regime, the
Supreme Court noted that it did not approve of each and every application of the Fairness
Doctrine, but, because of the chosen method of enforcement, such approval was not required to 73
uphold the doctrine in general. If this enforcement regime is chosen once again, it is likely that
the Court will follow its reasoning in Red Lion and deem the doctrine to be narrowly tailored.
However, other methods of enforcement that are less well tailored are conceivable, and have been 74
considered by the FCC. Whether the Fairness Doctrine as newly established would be narrowly
tailored will therefore depend upon the enforcement regime chosen by Congress or the FCC.
It does not appear that the Fairness Doctrine may be applied constitutionally to cable or satellite
service providers. The Supreme Court has held that content-based restrictions on the speech of 75
cable and satellite providers are subject to strict scrutiny. Strict scrutiny requires that the
restriction at issue advance a compelling government interest and that the restriction be the least
restrictive means of achieving that interest.
Content-based regulations of speech in the print media are accorded strict scrutiny. The Supreme
Court has recognized that regulations similar to the Fairness Doctrine, when applied to the print 76
media, are not constitutional. If regulations similar to the Fairness Doctrine could not withstand
strict scrutiny when applied to the print media, it appears unlikely that similar regulations would
withstand such scrutiny when applied to cable or satellite providers.
In the Matter of Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning Alternatives to
the General Fairness Doctrine Obligations of Broadcast Licensees, 2 FCC Rcd 5272 (1987).
72 Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. at
73 Red Lion, 395 U.S. at 396.
74 See In the Matter of Inquiry into Section 73.1910 of the Commission’s Rules and Regulations Concerning
Alternatives to the General Fairness Doctrine Obligations of Broadcast Licensees, 2 FCC Rcd at 5272.
75 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
76 See FCC v. Pacifica, 438 U.S. at 748 (noting that the First amendment protects publishers from being required to
print replies, but provides broadcasters with no such protections); Miami v. Tornillo, 418 U.S. at 241 (invalidating a
law that required newspapers to allow individuals to respond to personal attacks).
Since the repeal of the Fairness Doctrine, debate among legislators regarding whether to reinstate
the doctrine has continued. Below are the bills related to the Fairness Doctrine that were
introduced in the two most recent Congresses.
H.R. 501 proposed to amend the Communications Act of 1934 to codify a public interest standard
for broadcasters that approximated the requirements of the Fairness Doctrine. Under the bill,
broadcasters would have been required to “cover issues of importance in their local communities
in a fair manner, taking into account the diverse interests and viewpoints in the local community.”
Broadcasters also would have been directed to hold two public hearings a year to determine
which issues were of greatest concern to their communities of license. Failure to comply with the
standards set forth in the bill could have resulted in the revocation of a broadcaster’s license, as
well as other remedies provided by the Communications Act. The bill was not enacted.
This bill would have amended Section 315 of the Communications Act to require broadcasters to
“afford reasonable opportunity for the discussion of conflicting views on issues of public
importance.” The bill also provided that enforcement of the new provision should be consistent
with the policies of the Commission that were in effect prior to the repeal of the Fairness
Doctrine. The bill was not enacted.
The Broadcaster Freedom Act of 2007 would have deprived the FCC the authority to reinstate or
re-promulgate the Fairness Doctrine. These bills were not enacted.
This bill provided that none of the funds appropriated to the FCC could be used by the agency to
implement the Fairness Doctrine, or any other regulation of similar substance. The bill was not
The 2008 Consolidated Appropriations Act prevents the FCC from using any of the funds
appropriated to the agency under the act to implement the Fairness Doctrine or any similar
The FCC is currently receiving funds under a continuing appropriations resolution. The resolution
will continue to fund the agency until the budget for FY2009 is passed or until March 6, 2009,
whichever occurs first. Under the resolution, the FCC must continue to abide by all of the terms
and conditions placed upon its receipt of funds under the Consolidated Appropriations Act of 77
2008. Therefore, the FCC may not, at this time, use any of its appropriated funds to implement
the Fairness Doctrine.
Kathleen Ann Ruane
Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, P.L. 110-329.