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Alex Potts
FCC and the Fairness Doctrine
(Information For the Public Good)
The Fairness Doctrine was introduced in 1949 and it required the
holders of the broadcast licenses to present different sides of
controversial issues of public importance and to do so in honest,
equitable and balanced ways. But the fairness doctrine raised
several constitutional and practical questions. For some the very
existence of such a doctrine was a violation of the First
Amendment since it regulates Freedom of Speech. There is also
the problem of how to define what is honest, equitable and
balanced.
Scholars such as Timothy J. Brennan and Donald P.
Mullally point out that the incorporation of the Fairness Doctrine
was the most important event to change the perception of FCC
and its policy makingrole. The Doctrine heralded a new effort by
the FCC to protect the average person's rights to freedom of
speech, but from the critics point of view it at the same time
violated the freedom of others . Translating the Fairness Doctrine
into practice proved to be highly controversial, complex and full of
constitutional and moral dilemmas. The Doctrine was eventually
deemed to be unconstitutional by the Supreme Court.
Although we are no longer under the influence of the
Fairness Doctrine, the question remains, is the Fairness Doctrine
needed to create a more balanced coverage of important issues,
or does it do more harm than good. I have come to the belief that
the idea and intent behind the Fairness Doctrine were good, but
the design of it was poor. The possibilities of different
interpretations of the Doctrine were clearly not thought through,
and as a result the FCC and the Courts had to decide issues on a
case by case basis. If the Doctrine had been more specific in
how the rules worked then I believe that there is a good chance
that it would still be in practice today. My proposition is to
reinstitute the Fairness Doctrine, but with a clear cut outline that is
easily understood by both the people and the broadcasters. With
the specifics in place, the Doctrine could work as intended, and
would help to bring about an era where people can have sources
of information that allows them to think for themselves, rather than
having a media company do the thinking for you.
Alex Potts
Professor Haq
Draft I
Was the Fairness Doctrine Implemented by the FCC
Constitutional or Was it a Violation of the Rights of
the Media?
The Fairness Doctrine was implemented by the FCC in
1949 with its intent being to obligate licensees (primarily in
television) to represent a variety of opinions in their public affairs
programming. There were two specific requirements to the
Doctrine. The first was that each station was under an obligation
to cover controversial issues of public importance. The second
was a requirement that if a broadcaster only covered one side of
an issue, differing points of view would somehow have to be
aired. Although it looks fairly simple at a glance, the Fairness
Doctrine was anything but, and part of this complexity led to its
abandonment in 1987 even though two sections of the doctrine
that were added later remained after it was abandoned. Although
the main goal of the Fairness Doctrine was to provide the public
with the right to speak and the right to hear, it's forms of
distributive justice were often open to interpretation, and it's
effects on the marketplace were more of a hindrance than an
asset.
The parts of the doctrine that were upheld even after it was
abolished are well covered in Robert W. Leweke's article titled
"Rules Without A Home: FCC Enforcement Of The Personal
Attack And Political Editorial Rules" he brings to light how even
though the Fairness Doctrine was abolished in 1987, the personal
attack rule, and the political editorial rules were enforced through
the 1990's. According to Leweke, "The personal attack rule
evolved into a remedy from personal attacks that resulted from
broadcaster compliance with the fairness doctrine" (559) (expand
the quote or paraphrase further because otherwise it is not very
clear The good thing with the rule was that unlike the Fairness
Doctrine, it offered specific guidelines for broadcaster compliance,
and contained certain exemptions such as political figures, or
foreign groups. The political editorial rule was slightly
different. "Whereas the personal attack rule was intended to
protect anyone attacked on the air, the editorial rule applied to
editorials supporting or opposing candidates for office" (561)
As Donald P. Mullally explains in his article "The Fairness
Doctrine: Benefits and Costs.":
. "The commission up until it adopted the fairness rules
had few remedies. It could for example, direct compliance; it
could grant short term renewals only; finally, it could revoke the
stations license on the grounds that it was not operating in the
public interest. With the adoption of the new fairness rules and
their sanction by the U.S. Supreme Court, the FCC can now
impose "forfeitures" or fines on stations that violate the rules"
(580). With the rules firmly in place, the FCC now had a firmer
source of authority and a clearer guideline for both the people to
understand, and the broadcasters to follow, but the doctrine itself
was still very vague, and the people and broadcasters were still
correct in complaining that one or the other's rights were being
violated.
The right to speak and hear a variety of views is one of the
pillars of the Fairness Doctrine so argues Timothy J. Brennan and
other scholars. Brennan points out that the station owner has no
inalienable right to provide whatever programming that they
desire under the doctrine because they have a responsibility to
the public (424). The owners only rights stem from their rights as
a person or citizens. The station owners potential desires are put
aside in the argument for the inalienable right to freedom of
expression by the greater public. Brennan cites three arguments
by Lichtenburg to back his claim: Lichtenburg (1987) traces the
association of freedom of expression with the need for individuals
to think for themselves in order to be fully human, Scanlon (1979)
argues that a legitimate government would have to be one
founded by agreement among rational, autonomous individuals,
and that such individuals would not set up a government that
prevented them from making up their own minds about political
issues, the third argument derived from Mill, and then offered by
Rawls (1971), is that freedom of speech is necessary if "political
affairs are to be conducted in a rationale fashion," with citizens "in
a position to assess how proposals affect their well being and
which policies advance their conception of good" (424) Although
this idea is correct, it is also greatly flawed as Donald P. Mullaly
points out.
In an article called "The Fairness Doctrine, Benefits and
Costs," Mullally asks "Does the fairness doctrine restrict the
constitutional rights of broadcasters freedom of speech?" His
article accurately sums up the double edged sword that is the
fairness doctrine, and although he recognizes that it is beyond the
scope of his article to examine the amendment issues regarding
the electronic media, he does go on to say "We are restricting the
freedom of the broadcaster when we burden him with an
obligation triggered by his statement or the statement he allows to
be broadcast, but if we do not place this burden upon him, we
allow the broadcaster himself to restrict the freedom of others to
express their opinions" (582). Although it wasn't officially worded
this way, the FCC sided in the favor of the greater public,
sacrificing the rights of the broadcaster for the majority, but so
many claims began to arise of unfair coverage that the FCC had
to lay down specific guidelines for a complaint to be valid.
One of the problems outlined is that since now that the
people were clearly favored over the broadcaster when it came to
individual rights, there were very few specific guidelines to explain
what qualified as a violation and what the broadcasters could still
have protection in doing. In an article by the Harvard Law
Review titled "The Fairness Doctrine And Claims Of Systematic
Imbalance In Television News Broadcasting" the unlisted author
address a specific case where guidelines were clearly set by the
courts. The case was The American Security Council Education
Foundation v. The FCC, and what the case produced was a 6-3
split decision by the District of Columbia Board of
Appeals. Judge Tamm who wrote the report for the court noted
the delicate balance between the rights of the broadcaster, and
the rights of the public to be informed. He went on to say "A key
element of this balance is the requirement that the complainant
present prima facie evidence of a fairness violation before the
broadcaster will be required to respond." He agreed with the
FCC that the fairness doctrine is issue oriented, and therefore a
complaint had to focus on a particular and well defined issue on
which the coverage was allegedly imbalanced. He went on to
clarify that ordering broadcaster response to complaints based on
amorphous issues would "unduly burden broadcasters without a
countervailing benefit to the publics right to be informed."
(1032) This case clarified that if the fairness doctrine was to be
subject to "umbrella issues," then there would have to be a clear
connection between the component parts. An umbrella issue
is containsdistinct and identifiable sub-issues. The basis of the
complaint against ASCEF's was that they had grouped issues
such as the SALT I Treaty (Strategic Arms Limitation Treaty,)
detente with the Soviet Union, the Vietnam War, and President
Nixon's 1972 rapprochement with China all under the heading of
"National Security." Because there was no clear cut connection
between these issues, they lost their appeal, and the Fairness
Doctrine now had a better definition of what counted as a valid
complaint. Although the area of regular broadcasts was
becoming more clear in it's guidelines and regulations, there was
a rising possibility of the Fairness Doctrine spreading to the realm
of advertising.
In a California Law Review article titled "And Now A Word
Against Our Sponsor: Extending The FCC's Fairness Doctrine To
Advertising," the author/author's (unknown) explain the FCC's
debate on whether or not to spread the authority of the Fairness
Doctrine to include the realm of advertising. The review
recognizes that although the FCC rarely considered the content of
commercial messages in determining whether licensees were
meeting their obligation to present balanced coverage of
conflicting views, a number of recent complaints and court
decisions have forced the FCC to reconsider its position on
commercial messages. Although the FCC contemplated the
thought of imposing the doctrine on broadcasters, they decided
against it due to the ramifications that it would have on the market
for both licensees and advertisers, as well as the foreseeable
difficulties in regulating yet another sector of media
(1418). Advocacy groups in favor of the doctrine appealed the
decision, but the FCC stood firm. In rulings like this there is often
confusion over the exact methodology of distributive justice, that
is, how do courts decide what is right when there is no clear cut
definition in the first amendment, and one groups rights will be
violated no matter which path is taken?
One clear problem in distributive justice was pointed out in
a California Law Review titled "The Problem of Issue in the
Administration of the Fairness Doctrine" is FCC’s reliance on
complaints made by consumers. t "Rather than screen television
and radio broadcasting itself to assure compliance, the FCC relies
on complaints from the public about a particular licensees
broadcasts (547) The article goes on to examine the difficulties
of both the public and the FCC to define what qualifies as an
issue, when a complaint is brought to the attention of the
commission. Because there are no clear guidelines, far too many
cases are brought up. "Almost all of this increased activity has
concerned the second part of the doctrine, requiring a licensee
who has aired views on one side of an issue to air contrasting
views. Resolution of these complaints has centered on two key
questions: What issues have been raised in a broadcast? Are
these issues controversial and of public importance? (548) The
law review points out that what one person considers fair and
equal coverage may be viewed as extremely biased from another
just as one could consider something controversial while another
might not, so the rulings by the FCC are open to interpretation,
and far from concrete.
In a 1981 article in the California Review written by authors
unknown, there is again a recognition that the doctrine allows for
a level of government intrusion that is seen as impermissible by
many. On the other hand though, the scarcity of the broadcast
spectrum (the invisible broadcast waves over which transmissions
are sent) limits the number of speakers who can exercise their
right to free speech over the airwaves. The article examines the
double edged sword that is the fairness doctrine in regards to
distributive justice when it lays out the ramifications for the
doctrines abolishment. "If Congress does abolish the fairness
doctrine, an individual or group that favors government
regulations of broadcast content would be likely to bring an action
requesting judicial reimposition of such regulation. This lawsuit
would be predicated on an asserted right of the public to obtain
diverse viewpoints over the airwaves on controversial issues of
public importance, a right asserted to prevail over the general
constitutional mandate against content-based regulation of
speech." (557) The Law Review points out that such a suit could
come from either part of the fairness doctrine. An individual or
group could demand that a station provide programming on an
issue that they either ignored or inadequately covered. This
stems from the first part of the amendment that broadcasters
cover issues of public importance. The second possibility is that
after a broadcaster has presented one side of an issue, the
individual or group demand that they present the other side of the
issue as well. This stems from the second part of the doctrine
that requires broadcasters to air both sides of an issue. If the
broadcaster refused either of these scenarios, then the individual
or group could sue the broadcaster to compel it to meet the
demand, saying that access over the airwaves to information and
viewpoints on important public issues is mandated by the first
amendment.
One of the problems is that the right to speak and
the right to hear which are embodied in the first amendment may
not be applicable to such a situation for two reasons. The first is
that in this situation the government would have to require a
substitution of one speaker for another where as the true purpose
in the first amendment is as a prohibition of government
interference with communication. This kind of substitution
wouldn't work because it would deny the original speaker their
right to free speech. Secondly if the right to hear section of the
doctrine were applied to broadcasted content regulation would
weaken the role of "free press.". Such a thing would run the risk
of promoting government abuse by giving states the authority to
determine what is fair and what isn't fair, and to mandate a certain
kind of coverage by the press (558) Rather than protecting the
rights of the people who had no access, the government could
then easily become too intrusive in both what the media can cover
and what people might hear.
Thus there appears to be a a
virtual stalemate between broadcasters or individuals and groups
rights. Brennan offers a different solution for achieving
distributive justice. Brennan says that we shouldn't debate the
specific measures of distributive justice from an equality
standpoint, but that we should look at the simpler question of
whether the doctrine creates a more egalitarian distribution of
wealth, income, or resources. Brennan states that "A
requirement to present opinions on public issues held by groups
otherwise unable to pay broadcasters to carry their messages
may result in a broader acceptance of public policies that favor
those groups" (427). He uses the scenario of a poor
neighborhood about to be leveled to put in a new highway as an
example of where the doctrine would benefit those who otherwise
would not have a voice. If the doctrine were not in place, and the
wealthy had control of the airwaves, then they could control the
flow of information and thus make it impossible for the poor or the
working class to get their point of view presented to the public.
What Brennan suggests to help level the playing field a little bit is
an auction of the spectrum rather than to give it away. He
believed that if the government would auction the spectrum
(which is worth billions) rather than just giving it away, then they
could use that money in redistributive programming, and
educational shows. Brennan raises a valid point that "When
compared to the funds that could be raised through auctions, the
distributive effects of the Fairness Doctrine seem to pale as they
stand" (426). One of the strongest objections to proposed
government control comes from the broadcasters themselves who
desire freedom from government oversight, but as Jay Blumler
argues, we can not give this to them. In "The Role of Public
Policy in the New Marketplace," Blumler argues "There is a
continuing role for public policy in the electronic media
marketplace" (9) He warns that our society is too important and
too reliant on the electronic media for us to see it as "just another
business" (14) Patricia Aufderheide however questions the need
for the continuation of the doctrine.
She points out how the changing of the times has affected
the marketplace and made old arguments irrelevant. "Primary is
the question of whether public interest regulation of broadcasting
continues to be necessary. Public interest regulation is grounded
in the notion that broadcasters hold in trust a scarce public
resource and must perform some public service and observe
certain standards of responsible behavior in exchange for using it
for their own benefit. Opponents of continued public interest
regulation, who have taken up the Fairness Doctrine as the
wedge in their campaign argue that increased outlets for opinion
not only over the air but also on cable and in videocassette-form
make the scarcity argument irrelevant" (47)
The Chilling Effect
Among the cries for the end of the doctrine there are also valid
arguments that the doctrine has negative effects on the
marketplace because of the fear that it causes, thus creating a
Chilling Effect on freedom of press. Thomas Hazlett gives his
argument in favor of the existence of the chilling effect titled: "The
danger has been seen on the U.S. Supreme Court, The FCC, and
elsewhere, that there exists a potentially unconstitutional "chilling
effect": the prospect of having to award equal (unpaid) time to
dissenting points of view constitutes a tax on controversial
speech. Philip M. Napoli goes into more detail regarding the
chilling effect, and it's consequences.
In an article titled "The Unique Nature of Communications
Regulation: Evidence and Implications for Communications Policy
Analysis," Napoli explains that according to the findings of the
FCC, "The burden of meeting fairness doctrine requirements
compelled broadcasters to present fewer discussions of
controversial public issues. If the policy did have such an effect,
then there was a potential ripple effect on the political knowledge,
public opinion, and voting behavior of the television audience,
which would be receiving less controversial public issues than
before" (14). Brennan perhaps gives the best explanation of the
chilling effect.
He defines the argument for the chilling effect is that the
obligation to cover opposing views creates a marginal disincentive
to cover initial points of view, which therefore reduces the station
owners willingness to cover controversy in the first place.
(431). Although many other scholars address the potential for the
chilling effect, Brennan is the only one who offers possible
solutions to try and solve the problem without getting rid of the
doctrine. One such solution is "Suppose station owners were
obligated to cover opposing sides of significant public issues
regardless of their own journalistic, or programming
decisions. Then there would be no marginal disincentive to the
provision of investigative journalism, documentaries on public
matters and the like" (431). By offering this solution, Brennan
avoids creating any additional coverage obligation under the
doctrine because the obligation would be whether or not the
station covered one side of a controversy. Another possible
remedy that Brennan takes from Henry Geller is that fairness
doctrine compliance be reviewed only at the time of license
renewals rather than a case by case basis brought to the attention
of the FCC. The risk that this runs as Geller points out is that it
could still create a chilling effect for fear of a license revocation,
and can lead to governmental bias at the time of license renewal
(431). Brennan then goes on to recognize that his solution for the
chilling effect is also flawed because "A matter may become a
public controversy only because of a television stations
journalism" (432) His solution to this problem is that a station
should be obligated to carry opposing viewpoints on matters that
could not be attributed to its own investigative efforts. Brennan
states "Since there are other sources of news, the likelihood that
a matter is newsworthy only because of the efforts of a television
station is likely to be small. While the doctrine may very well
seem to be an enormous hindrance on the broadcasting
companies due to the sheer amount of complaints that can occur,
the FCC attempts to lessen this burden by making the doctrine
applicable to groups and not individuals.
As Adrian outlines: "If
all individual complaints were heard then the doctrine would be a
disaster, so the FCC specified that the doctrine could only apply
to groups (24). While this made many people unhappy it also
made sense because if each individual was given what they want
then the system would be impossible to manage. Brennan
follows "When we turned to the rights of all individuals, including
but not limited to station owners, we found that there are
important arguments for an inalienable right of speech, which can
be translated into a right of access. Such a right however cannot
be exercised on behalf of individuals through a Fairness Doctrine,
since there is insufficient spectrum to provide individual speech"
(426). In essence the doctrine does what it can to assure rights
to speak and hear, but it simply cannot please everyone because
of the reality that the supply of the spectrum is much smaller than
the demand for access.
When the fairness doctrine was in practice it was received
both with resistance and open arms by liberal democrats who
worry about the power of the corporate media in controlling
information. At the same time it was rejected by the ,
broadcaster who feared that they were now under loosely
interpreted codes of conduct. As stated by Mullally "We are
either restricting the rights of the broadcaster when we burden
him with this obligation, but if we do not place this burden on him,
then we allow the broadcaster to restrict the access of others to
express their opinions" (582). Brennan reminds us that "station
owners have no inalienable rights because that is overruled by
the responsibility for the public good" (436). The arguments
against the doctrine eventually won over the Supreme Court and
the FCC, as addressed in Brennan's conclusion where he states
"The strongest argument against the Fairness Doctrine is that the
viewing public is best served if broadcasters are allowed to
determine program and advertising content as they see fit, in
response to marketplace forces. Scarcity is less significant than
commonly supposed, and the Fairness Doctrine is more likely to
reduce audiences in a counterproductive manner than to
ameliorate output reductions caused by limited competition
among broadcasters" (437) Following this, Mullally concludes by
stating "Limitations on the expected ability to enforce a Fairness
Doctrine fairly and effectively may outweigh all of the policy
arguments that might be made in favor of the Fairness Doctrine"
(582). What the doctrine comes down to is a decision of morality
for each person. Can we live with violating the rights of a few to
protect the rights of many? Are our standards of programming
going so far downhill that there needs to be some sort of
mandated programming that serves the public good, or does the
public have the right to watch whatever they want regardless of
the social consequences? These are complicated answers that
can fall under the 1st Amendment and can be interpreted in
multiple ways. Depending upon one’s ideological disposition and
position in society one would come to different conclusions about
these complicated issues.
As I have argued from the standpoint of other authors,
moral rights are a tricky subject regarding the fairness doctrine
because there are multiple groups involved with different vested
interests at stake. On one side there are the broadcasters who
feel that it is their right to air whatever they see fit according to
market demands without government interference. On the other
side there are both individuals and groups who desire access to
air their views over these media sources in order to be heard on a
much larger scale than they otherwise would be able to.
This
dilemma is a perfect example of why the Constitution must be
seen as a living document in this debate. The founding fathers
wrote the Constitution with no means of knowing the rapid
development of technology that would occur in the future. They
did not have telegraphs yet let alone a television and radio
spectrum that allows for thousands of channels to be broadcast,
and because of this it is impossible to literally interpret what their
intention was. Since we cannot very well go and ask them either,
then we must bend the Constitution to fit the needs of the most
people. With the necessary path clear, we now must figure out
who has the most claim: the broadcasters, or the individuals and
groups without access.
I believe that broadcasters are absolutely correct in arguing
that the fairness doctrine restricts their right to freedom of
speech. By requiring them to air issues of public importance, and
more specifically to require them to air them in a fair manner, we
are putting very strict regulations on a system that is based on a
competitive and free market. Because of this conflict, it is no
wonder that the doctrine caused so many problems. With two
different systems merged into one it is nearly impossible to have
any sense of harmony. As the media spectrum expanded, they
then also had a claim of unfair treatment because only some
stations were required to cover issues of public importance while
others were unhindered in this regard. An argument that
Brennan brings up is that to ensure efficiency all of us ought to
have the right to do as we please with the resources that we
control, but the Supreme Court case of United States v. O'Brien
sums up the counter argument. According to this 1968 case,
laws that limit speech may be valid "if they serve as a substantial
government interest and are no more intrusive than necessary to
serve that interest." (Quincy Cable TV Inc. V. FCC, 1985, p1445;
Tribe 1985) While cases such as Gitlow v. New York directly
after WWI held very similar opinions, this case was important
because it essentially cast aside the rights of the broadcaster for
the greater good of the people. Although open to scrutiny, this is
a decision with a lot of logic to back it up.
When the Constitution was written all people were on a
virtually equal footing because there were no sources of mass
media. The closest thing to it were news pamphlets that were
distributed, but even these could only be printed off by the
hundreds each day. As such, there was no real danger of
unequal access to media. Now though, with a select few
corporate entities controlling the majority of the spectrum, the
argument that the common people do not have a voice is a
legitimate one. Whether we interpret the Constitution literally or if
we translate its meaning to account for modern developments, I
believe that the intent of freedom of speech and expression
should apply to the greatest majority that it can serve. While it is
true that some individuals are being cut out of their right to
freedom of speech and expression, we have to recognize that it is
simply impossible for the fairness doctrine or anything else to
grant access to every individual that desires it. In order to avoid
any claims to the contrary, it would be important for a new
fairness doctrine to specifically state that it only applies to
"political and social groups" unless in extreme circumstances. An
example of such a circumstance would be the case of Lampley v.
KFI.
In this case, Bree Walker Lampley along with numerous
disability rights organizations and individuals alleged that the
radio station KFI(AM,) Los Angeles violated the commissions
personal attack rule. The allegations came when during a
broadcast of a two hour talk-show hosted by Jane Norris, Noriss
and call-in listeners discussed the "issue of whether or not it was
fair for the Lampley's to knowingly pass along a deformity to their
child. Lampley and support groups stated that the broadcast
personally attacked Los Angeles news anchor Bree Walker
Lampley's integrity and character because she and her husband
Jim Lampley, decided to conceive a child knowing that there was
a 50% chance that their child would inherit her genetic condition
called ectrodactylism. The complaint stated that Lampley and
those who share her disability were not allowed to air their
views. The complaints also alleged that the broadcast was
biased against people with disabilities, and presented medical
inaccuracies about Lampley and those who share her disability,
and that they failed to operate in the public interest by harassing
and discriminating against callers who attempted to express views
contrary to those expressed by the station. There was another
instance regarding this issue when August 28, 1991 another
two-hour broadcast hosted by Tom Leykis attacked the "morality
of Lampley's pregnancy. Accordingly, the station did not inform,
or allow the Lampleys' or any other representative of the disability
community to respond to either program. The complainants
asked that the Commission initiate an investigation, and they also
requested a relief in the form of license revocation, a forfeiture,
and an admonition on the basis that: "1. KFI failed to operate in
the public interest by ignoring its obligation to present conflicting
views on issues of public importance. 2. The KFI broadcast
contained factual inaccuracies and medical misinformation. 3.
The KFI broadcast contained personal attacks upon complainants
in violation of Section 73.1920 of the Commission's rules."
(http://www.fcc.gov/Bureaus/Mass_Media/Databases/documents_
collection/da92-179.pdf) The problem with these claims was that
the doctrine had already been abandoned by that time, and
although the personal attack rule was still enforced from time to
time, it was not attached to any concrete policy of the FCC's and
as such couldn't be held up in such a case. I believe that if the
doctrine had still been firmly in place, a ruling like this would not
have happened, but if a new doctrine were to be written up, this is
a specific case that could be used as a clear example of a
violation of the personal attack rule.
Aside from occasional cases like Lampley v. KFI though,
the right to access needs to be saved for social and political
groups. One might also argue that this case could also be
handled not as individual violation of rights but as a group rights
of the disabled. This reality though will still cause uproars from
countless individuals who fall outside of the "group" category, and
because of this feel that their rights are not being addressed. I
believe that there is a solution to this problem, but it is a
somewhat harsh one.
A common occurrence in government policy making is that
they are often flawed, and despite trying to make things better for
people, it is simply impossible to address or please
everybody. The result of this is often an appeal to the courts by
special interest groups who are either morally opposed, or feel
that the doctrine is immoral.
One of the biggest arguments for the fairness doctrine is
that it helps to promote the ideas of small groups who otherwise
would have no means of getting their message out. The biggest
danger of not allowing this is that it would then pave the way for
the wealthy who own the stations to prevent the spread of
information to the middle class that could help to distribute the
wealth to the poor. In essence they could distort or ignore
information in order to keep the money in their own
pockets. Here lies another difficulty with the fairness doctrine.
Groups with more money "should" have more influence if
we are following the rules of our capitalistic society, but we also
live in a democratic society where our morals an beliefs, and
those of our forefathers are a great part of our personal
identity. These two ideals can often work together, but in
instances like this, they clash severely. Should money give so
much power to certain groups that they are able to distort
democracy by claiming virtual monopoly over information?
There are groups who have to scrap for every penny of
advertising space and media time because their views are not
commonly shared. They work hard to stand up for what they
believe in, and to try to draw more people to their cause, but they
are often fighting a loosing battle. It is possible for those groups
who lack resources to mobilize support by informing their fellow
citizens about the importance of the issues but that will still
require time, energy and even money to do so. It is a classic
American attitude to cheer for the little guy in the face of great
odds. In "Mr. Smith Goes to Washington" we can't help but get
tingles down our spine as a takes on the corruption of his state
despite overwhelming odds. When we watch a big sports game
we want our particular team to win, but in instances of playoffs
and championships we usually are cheering for the underdog
because it would be a great feel good story. It is important in this
political system though to separate fantasy from reality. In the
television market it is a fact that money rules, and as such we
sometimes have to sacrifice our desires. Brennan's suggestion
of auctioning the television spectrum rather than giving it away is
a good example of this.
As I quoted earlier, the television spectrum is currently
given away to a select few according to Brennan. I agree with his
suggestion that the spectrum should instead be auctioned off,
with the proceeds going to fund redistributive or educational
programming. Despite this being the best option, there are two
problems that I can see that result from a auction. One problem
is that if the spectrum were to be auctioned, then the wealthy
would still maintain control, but given the alternative of giving the
spectrum away, auctioning it is still better. The second problem
is that if the proceedings from the auction were to go to some sort
of redistributive or educational programming, it would still not
solve the problem of the shortage of viewers.
The main problem that I see with reintroducing the fairness
doctrine is that we as viewers now have countless more options
of what we can watch than when it was introduced in 1949.(It may
be a problem but it can also be a solution too) We have gone
from three original broadcast channels to thousands of cable
channels in addition to viewer subscribed stations such as HBO
and Showtime. Because of this enormous increase in the
spectrum, if the doctrine is reintroduced, and stations are required
to air issues of public importance, then people who are
uninterested can just go and turn on a Seinfeld re-run. This is
where the efficiency of the doctrine needs to be addressed
because it clearly cannot be brought back the way that it was and
be expected to work effectively.
As I said already, one of the fairness doctrines biggest
flaws was that it was open to interpretation. In addition to this,
government interference in a capitalistic market place caused a
chilling effect which made the broadcasting companies less
inclined to air issues of public importance. Also by putting these
responsibilities on only certain stations, the doctrine unfairly put a
burden on a few rather than all of them. If the new doctrine were
to work, then these problems would have to be addressed.
The new doctrine would have to have specific guidelines in
order for it to work efficiently. It would have to give clear
examples of what counts as a violation of the personal attack rule,
and what counts as unfair coverage. These guidelines would
state that complaints regarding a personal attack would have to
be regarding an issue of public importance that would normally be
covered in the media, and not an attack based on personal
character which would be considered unworthy otherwise. Again
I cite Lampley v. KFI. If KFI attacked Lampley's golf swing, then
there would be no case. While there is an argument that she was
personally attacked without an opportunity to respond, the reality
is that the system becomes too tangled if issues like this have to
be processed all of the time. Because they are criticizing her
choice to have children despite a medical condition though, then
the issue is one of public importance. Debates regarding if
people with medical conditions and disabilities should have
children is an important debate because it brings questions of
morality and equal rights to the table. Regarding issues such as
this, political figures and dignitaries must be addressed as well.
Politicians and foreign dignitaries should be exempt from
the personal attack rule if they are being criticized for policy
making decisions. If they were to be given free air time whenever
they were criticized for their job, then our television networks
would never go near the subject. This would have a very
negative effect because one of the signs of a healthy government
is discussion and even criticism of it's policy makers. If an
officials character outside of their office was challenged however,
then that person should have a right to respond. For example if
Sarah Palin was criticized for her mothering skills of her disabled
child while she was campaigning with Senator McCain, then she
should have a right to respond because the attack was not of a
political nature, despite it being said while she was a
vice-presidential candidate. In addition to specifying what
qualifies as an attack vs. what is just a negative comment, we
must also specify in what context something can be considered a
personal attack.
What I mean by this is that there is a difference between
certain media techniques, and in what context they can be
considered regarding personal attacks. For example, if a news
station had one of their crews following a political candidate on
their campaign trail filming a documentary that showed the
candidate in a negative light, this could not be seen as a personal
attack. Yes the network may have some political affiliation or
bias, but as long as they just show the documentary and allow it
to speak for itself, or to have a discussion group go over it, then it
cannot be considered a personal attack. I say discussion group
because they are another factor in what qualifies as a personal
attack. During a discussion or debate panel there are usually
participants from both major parties although what channel you
watch depends on what the ratio of democrats vs. republicans is
and vice versa. These participants are sometimes employees of
those networks, and are sometimes outside consultants or
specialists who are brought on due to their expertise. If these
people say something during the debate that seems like a
personal attack, neither they nor the network is liable for providing
an opportunity for a response by the person under criticism. The
reason for this is that the person in the debate is expressing their
right to freedom of speech and expression, and it does not
represent the opinion of the network as a whole. It would be
illogical to expect networks to strictly censor their guest
commentators so that they would not say anything that could
offend anyone because at the end of the day that is what drives
ratings up. If a news anchor such as Wolf Blitzer were to say
something that could be considered a personal attack though,
then the network could be held responsible for providing response
time. This is because Blitzer is a permanent paid employee of
the network and as such is supposed to represent their
views. There would probably be a counter-argument to this
policy saying that it would place unfair restrictions on certain
programs, but since all networks would be held to the same
standards, the complainants would have no real ground to make
their claim. Issues regarding unfair or unequal coverage would
have to be addressed similarly.
In order for a claim of unfair coverage to be made, the
subject has to be considered an issue of public importance. For
example if Fox News ran a story on why invading Iraq was a good
thing, then they would be presenting unfair coverage because
they are not presenting the other side of the argument. The tricky
spot here is that a person or group couldn't file a complaint that
Fox News provided unequal coverage of the Iraq War, the Jobs
Bill, and Faulty Toyota Accelerators. Although there is no
correlation between these three issues they are all of public
importance, but unless they are connected, then they cannot be
filed in the same complaint. This may make for more paperwork
true, but for simplicity sake it keeps the system better organized
when dealing with complaints. If the system were clearly outlined
and organized in this way, then it could lead to a reversal of the
chilling effect.
One of the reasons that the doctrine was abandoned is that
it began having the opposite effect than it was supposed
to. Broadcasters were now less likely to cover issues of public
importance because they were not protected by concrete
guidelines for what they covered. Even if the broadcasters
thought that they did everything right and by the doctrines
standards, somebody could file a complaint and would often win
which led to fines. With the rules basically up in the air, the
broadcasters decided to play it safe, and just stop covering as
many controversial issues. With a new system of specific
guidelines in place however, they would be free to cover issues
just as long as they followed the rules. Aside from avoiding fines,
the broadcasters wouldn't have to worry about providing nearly as
much response time to people or groups that they upset which
would solve the other problem of the chilling effect where they
loose advertising revenue by having to provide response time to
groups that people are not interested in. Although this almost
solves the problem from the broadcasting perspective, the same
problems for the people still lie with this doctrine as with the
original.
Having a less specific doctrine was almost better for
people without access because by filling complaints they could
gain this access more easily. If the broadcasters actually know
how to avoid violating the rules though, then these groups cannot
get free air time as easily. To solve this problem I propose the
most radical and likely controversial part of the new doctrine.
As I stated earlier, the spectrum has grown so large that
even if we reintroduced the doctrine and broadcasters were once
again mandated to air issues of public importance, people could
simply just change the channel to watch something else if they
were not interested. With this in mind, and in order not to only
place the requirement on some media outlets, I would propose
that all media stations whether cable, subscribed, or otherwise be
mandated to air issues at least twice a week for one hour both in
the morning and the evening. Since one of the most important
intents of the Fairness doctrine was the public right to know about
important public issues I will argue that mandating this kind of
across the board coverage of public affairs is a simpler and less
problematic on the grounds of the First Amendment. By doing
this, the market effects on the networks should be minimal while
at the same time raising awareness among the public about
issues that they might otherwise not be interested in. This is a
very radical idea to those who preach less government
interference, but I would argue that our general public is on such
a rapid decline in terms of general knowledge and understanding
that it is time to intervene before the problem becomes too
great. There would be additional arguments such as the right to
hear which could mean the right to hear without government
interference, but since the proposed interference would only be
for approximately four hours out of the week, the interference
would be minimal.
It is also not as if the FCC and the
government would be forcing people to watch the
programming. They could always choose to go outside, run
errands, or do countless other things. Also it is important to point
out that in this system, the government would not be developing
the programming to watch. All networks would be able to choose
for themselves what they wanted to cover. MTV could cover the
South by Southwest festival while TNT could cover a Senatorial
race. The content does not matter just so long as they are done
together. With this policy, there would also be a minimal affect on
loss of revenue by the broadcasters.
Since they are all airing at the same time, it is likely that the
normal demographic groups will stick with their preferred
stations. This will help to ensure that the advertisers who
financially drive the advertising market do not jump ship during
these hours and focus on another network where their targeted
demographic has fled to. As a result the market should stay
stable during these hours, so instead of requiring only a select
few stations to air these issues we now require them all to do so
under the arguments of both fairness and national benefit. If we
stick to this plan, then the effects on both the character of
individuals and of our country will be for the better.
In a very short time span our media has gone from one of
discretion for the sake of the greater good to one that investigates
every tiny detail of the lives of people in public light, trying to find
imperfections and hidden skeletons. I do not even blame the
media for this because they are simply responding to market
demands which we feed. It is us the people that watches and
reads these things, which gives the stations and papers their
ratings and value, which attracts the advertisers which keeps
them in business. If we are to blame somebody for allowing this
decline in our character then we only need to look in the mirror to
find the answer. I do not mean to be nostalgic and preach how
much better the old way was. I only fear where our current path
is taking us.
Yes there is an argument that we deserve to know what is
going on behind the scenes of our public figures, especially in
politics, but we have crossed a threshold. We are spending too
much time worrying about who our representatives are sleeping
with rather what their policy's are regarding important issues. It is
time that we focus on what is truly important and then focus on
the extra issues that play a small part of the overall picture. We
are at what appears to be an incredibly important part in our
nation’s history in terms of gay rights, social security, the
economy, healthcare, and much more. We cannot afford to
simply turn on our preferred news channel and to believe
everything that is said to us. We must be willing to investigate
these issues for ourselves in order to develop our own opinions
because there are no real restrictions on the "facts" and figures
that are presented to us. I say this to Democrats, Republicans,
and everyone in between, above, and below. It is time for us to
demand more of ourselves and of our media than what we
currently do. If all of the pieces that I and others much smarter
than myself suggest are able to fall into place, I believe that we
stand a real chance at making a change to better ourselves in the
area of knowledge and understanding of both our own issues as
well as those regarding the rest of the world.
In order to understand the argument it is important to
summarize the points. By looking at the issue of inalienable
rights it is the most logical conclusion to admit that the rights of
station owners and their freedom of speech is overshadowed by
their duty to the public. The rights of listeners to speak and hear
on an equal footing while desirable is not realistic. There is not
enough of the supply (media and spectrum) to meet the
demand. Therefore the doctrine needs to apply to groups, and
only on rare circumstances to individuals. Politicians and other
international figures will not benefit from the doctrine unless they
are attacked on a personal rather than policy level. The fairness
doctrine will not be likely to have any serious effect on the
redistribution of wealth because the money still goes from
advertisers to broadcasters. It does however give a better
chance to the poorer groups to air their views whereas they would
be unable to otherwise. This in turn can help these groups gain
support due to their large scale coverage, and could help turn
them into a larger and more successful group. One of the main
arguments against the doctrine is that it interferes with what is
supposed to be a free market place. The doctrine is more likely
to reduce audiences because they have to provide free air time to
unpopular groups, and this places an unfair burden on only
certain stations. This can be countered by mandating all stations
to cover issues in their own fashion regardless of their regular
programming. Finally it is not likely that we will loose our interest
in the personal affairs of public figures, but our focus needs to be
switched back to the issues that actually affect us first. As
interesting as the Tiger Woods scandal may be, or Bill Clinton
exceeding his presidential duties in the oval office, thinking about
the issues of health care and where we truly stand is much more
important.
While politicians such as former presidential candidate
John Kerry wish to see the fairness doctrine re-instituted, the
debate still has a very long way to go. As I have said we cannot
simply bring it back and expect it to work perfectly this time
because our system is far different than when it was first
instituted. We have to think though if we are satisfied with where
our path is leading if we do not bring the doctrine back, or at least
something similar. It is for each person to decide, but it is unlikely
that many people will find that they are truly satisfied with their
own level of knowledge and interest in the realm of public
importance.
Works Cited
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