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Don’t Fear Fairness Doctrine1

Nicholas Johnson

Gazette, March 13, 2009, p. A4

For reasons difficult to fathom, some Republicans fear a born-again Fairness Doctrine.2

For example, Richard Jacobson, willing to3 assert his opposition to “fairness,” writes in the March 1 Gazette that Fairness Doctrine advocates are4 “liberals” who “seek to stifle free speech” [see below for a reprint of his column].

For the last 30 years, Washington’s Republicans — and Democrats — have been working the horses hard as they drove their buggy toward the mirage of the promised land of their dreams: “marketplace deregulation.” Now they’ve taken that buggy over the inevitable cliff, and the resulting global economic collapse is only one of the costly consequences.

Loss of common-sense media regulation is another.

Iowa’s Herbert Hoover, that great lefty radical, was the secretary of commerce who was asked by the radio industry to please regulate it. Out of Hoover’s “radio conferences” of the 1920s came the broadcasters’ recommendations, enacted as the Radio Act of 1927.

Broadcasters recognized they were being licensed to profit from public property, the airwaves, and that the privilege carried with it a public responsibility.5 From the beginning, an evolving Fairness Doctrine has been considered a central feature of that responsibility. For 30 years, its application was seldom if ever questioned by the public, broadcasters, FCC, courts or Congress.6

When challenged in the Supreme Court in 1969, the court shocked broadcasters by unanimously upholding the doctrine’s constitutionality. (Lower courts subsequently ruled the Federal Communications Commission had the authority to repeal it. The FCC’s deregulation revolution swept away the Fairness Doctrine.)

Misunderstandings about the Fairness Doctrine abound.

There are many reasons it couldn’t have been used to censor, let alone cancel, Rush Limbaugh. For starters, it didn’t apply to talk show hosts — or any other programmers. They’re not licensed by the FCC. It was only a requirement for overthe-air radio and TV stations’ overall programming.

It didn’t apply to cable-only channels, and certainly not newspapers.

It did not require “fairness.”

It did not require equal time — disparities of 10-to1 might be acceptable.

It did not give any individual a right to air time.7

The FCC didn’t monitor programming for violations. It depended on citizen complaints.8 Few, if any, stations have ever lost a license or suffered serious sanction for a mere fairness violation.

All it forbid, in effect, was the private use of this licensed, community resource as an unrelieved mouthpiece of one-sided propaganda.

In fact, it would be virtually impossible for responsible journalists to violate the Fairness Doctrine. It simply required what they would do anyway: report on at least some “controversial issues of public importance” and, when doing so, present a sampling of views.9

That would be required by editors of papers, and news directors of stations — and their owners. Why? It boosts audience numbers and advertising revenues.

The Fairness Doctrine: It’s not just a good idea, it ought to be the law — again.
Nicholas Johnson is a former FCC Commissioner who now teaches at the University of Iowa College of Law.


1. The title as submitted was "Fairness Doctrine Enhances Free Speech" -- a substantively different point (as developed by the Supreme Court in the Red Lion case), but admitedly one I did not take the space to lay out in the piece.

2. The next clause, as submitted (but deleted from the published version) was "-- notwithstanding past support for it from the likes of Phyllis Schlafly and the late Reed Irvine."

3. "boldly" was deleted from "willing to boldly assert . . .."

4. "simply" was deleted from "advocates are simply 'liberals' . . .."

5. The words "to serve their communities of license" were deleted following "public responsibility."

6. As submitted, the next paragraph began with the following sentence, which contained a rather significant historical fact: "In 1959, when Congress did address the issue, it essentially wrote it into the Act." In its evaluation of whether the Communications Act authorized a Fairness Doctrine the Court looked to (a) the long history of FCC's application of the Doctrine (i.e., the commissioners and staff apparently felt it was consistent with, and authorized by, the Act), (b) the equally long history of Congress' acquiescence in the Commission doing so (when addressing FCC actions during Congressional appropriations and budge hearings, legislation and general oversight of the agency), and (c) finally, of course, the 1959 amendments to the Act to which this sentence refers.

7. The following sentence was deleted: "It didn’t require, or forbid, any particular program, subject matter or format." While the list of what the Fairness Doctrine didn't do is admittedly long, the principle of wide broadcaster discretion is forcefully illustrated by these three aspects of broadcaster freedom.

8. The following sentence was deleted: "All complaints were first sent to stations for response and virtually all were dismissed." Although, on the one hand, this is a mere detail of administrative procedure, it also rather well illustrates what an industry-controlled paper tiger the FCC was when it came to Fairness Doctrine enforcement -- a further reason why it's difficult to imagine where the Doctrine's opponents are able to find the energy they bring to their arguments.

9. Deleted from the beginning of the next paragraph/sentence was, "Even if this were not required by the Society of Professional Journalists Code of Ethics . . .."

Fairness Doctrine Abridges Speech

Richard Jacobson

Gazette, March 1, 2009, p. A9

There they go again.

Liberals who can’t compete in and don’t trust the radio marketplace seek to stifle free speech.

This time it’s Sen. Tom Harkin, D-Iowa, once more threatening to impose the so-called Fairness Doctrine on the airwaves.

I would like to ask where liberal thought is being restricted? The vast majority of Iowa’s and the nation’s newspapers lean decidedly left. The newsweeklies have morphed into just one more version of the Nation. The three major television networks, CNN, MSNBC, PBS, academia and Hollywood all make sure that liberalism is championed while conservative thought is derided, diminished or dismissed entirely.

Ask a liberal about Fox News and sit back and watch the fireworks erupt.

Here’s a simple test: Keep a pen and paper handy and spend a couple of weeks watching CNN and Fox and count the number of liberal and conservative voices on each. I’ve done this exercise frequently. You might be surprised by what you discover. Fox truly does have a more balanced blend of competing voices and it’s not even a close contest.

That pretty much leaves the Wall Street Journal editorial pages and talk radio to provide a real balance to the nation’s political discourse.

That’s why I believe Harkin is being disingenuous. He knows his bloviating about this topic is just so much claptrap. What he really wants is to shut down any contrary opinion to what Newsweek calls “conventional wisdom,” i.e., standard, boilerplate liberalism.

One sees this reflex on the left all the time. Here in Iowa City, there was recent news about the overwhelming disparity at the college of law regarding political affiliation.

Color me “shocked, shocked” to read such an item. And just try and bring in a conservative speaker on campus and witness the real tolerance exhibited by the left. Let’s have diversity in all things save for right-thinking (pun intended). “We need to get your mind right, Luke.” I worked in broadcast journalism for many years, primarily in the Los Angeles market. News copy would come in from a source such as the Associated Press or a service such as CBS. The copy would go out on the airwaves unedited and one could hear the same stories up and down the dial, all with the same em phasis and bias.

Just the other day, I heard the same news copy on radio describing the Israeli election. Likud Party candidate Benjamin Netanyahu was described as “hard-line.” As for rival Tzipi Livni, well I guess she must have no-line. Actually the subtle reference is that of course her “line” is the reasonable one.

This isn’t what I was taught in J-school. A good story must try and accurately reflect both sides. Try and get competing quotes. Let the audience/ reader decide.

Back to the issue at hand, Harkin’s push for censorship — excuse me, the restoration of the Fairness Doctrine. Why does the left so fear the marketplace?

I worked in Southern California as a news anchor on a station carrying one-time talk king (and card-carrying liberal) Michael Jackson. Over time, his ratings eroded and he eventually lost his position at a large talker. Perhaps he is still out there somewhere but the point is the market, not ideology, determined his fate in LA.

Let the audience — not Harkin — decide.

My suggestion for fairminded liberals is this: Go back and read the first article of the Bill of Rights. I know the left loves to see gray in all things, but I don’t believe the words could be any clearer: “Congress shall pass NO LAW abridging the freedom of speech.” For a true democracy to flourish, Harkin, learn it, love it and live those words.
Richard Jacobson of Coralville spent 25 years in broadcast journalism, working in the Des Moines, Quad Cities and Los Angeles markets. His articles and book reviews have been published in the Los Angeles Times, Los Angeles Daily News and Orange County Register.