The (Un)Fairness Doctrine: An Assault on Free Speech on the Airways

Congressman Dennis Kucinich has introduced a bill that would reimposed the "Fairness Doctrine" which would require radio and television broadcasters to present controversial subjects in a "fair and balanced manner." On the surface, the move seems reasonable. But if Kucinich were to succeed in reimposing the Fairness Doctrine, the effect would be to throttle free speech on the airways. And that might be what Kucinich has in mind.

The Fairness Doctrine was first imposed by the FCC in 1949 under the notion that since the broadcast spectrum was so limited, federal regulation was required to assure "fairness" and "balance" and to prevent a few from monopolizing the airways. At the time of the enactment of the Fairness Doctrine, there were only 2,881 radio and 98 television stations in the United States. By 1989, though, there were over 10,000 radio stations and close to 1,400 television stations. Cable television and satellite and Internet radio has added greatly to broadcast choices. It would be impossible for a few people to monopolize opinion on the airways.

The Fairness Doctrine's constitutionality was adjudicated and upheld by the U.S. Supreme Court in a landmark 1969 case, Red Lion Broadcasting v. FCC (395 U.S. 367). Although the Court then ruled that the Fairness Doctrine did not violate a broadcaster's First Amendment rights, the Court cautioned that if the doctrine ever began to restrain speech, then the rule's constitutionality should be reconsidered. And, in fact, in another case.(Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241)., the Supreme Court ruled that the Fairness Doctrine "inescapably dampens the vigor and limits the variety of public debate." Finally, in 1984, the Supreme Court concluded that the scarcity rationale underlying the Fairness Doctrine was flawed and that the Fairness Doctrine was limiting the breadth of public debate (FCC v. League of Women Voters, 468 U.S. 364).