The Rise and Fall of the Fairness Doctrine

On February 17, 2021, an oak in conservative talk radio fell. Rush Limbaugh died of lung cancer after a year-long battle. His rising influence contributed to the Republican Revolution in 1994 and helped others, such as Sean Hannity, Michael Savage, Michael Medved, and Glenn Beck move into the medium. Limbaugh’s ascendancy, however, may have not been possible had a policy change regarding radio not occurred in 1987, the repeal of the Fairness Doctrine.

Image result for Rush Limbaugh


During the late 1930s the Federal Communications Commission under chairman Larry Fly grew concerned that with radio business-approved conservative messaging would dominate the radio airwaves. In 1941, they created the Mayflower Doctrine, which required a “full and equal opportunity for the presentation to the public of all sides of public issues” and in the process prohibited editorializing. A justification cited was the limited radio frequencies. This was yet another move the Roosevelt Administration used against conservative critics of the New Deal and politicians who supported it. For instance, Senator Hugo Black of Alabama had pushed for curbs on lobbying in 1936 after an extensive campaign against the Public Utilities Holding Company Act but an effort to pass legislation to regulate lobbying ultimately failed. Although there was controversy surrounding First Amendment implications with this rule, the wartime censorship that came with World War II postponed further discussion. In 1948, however, the Mayflower Doctrine was again reviewed and it was replaced the following year with a successor doctrine, what we know as the “Fairness Doctrine” the following year. This required a balance of political perspectives by stations on the air. The goal was to permit political debate on radio while curbing owners who would want to make their stations reflect only their views. In 1969, the Supreme Court upheld the Fairness Doctrine unanimously in Red Lion v. FCC and cited the limited availability of airwaves as a justification for such a rule, whereas such a rule would be unconstitutional with newspapers as there were no such limitations. However, the court also ruled that if the Fairness Doctrine should serve to suppress speech then its constitutionality would have to be reconsidered. Justice Byron White wrote what the Supreme Court was prioritizing in the decision, that it was “the right of the viewers and listeners, not the right of the broadcaster, which is paramount” (McCraw).

In the 1970s, opinions and impacts of the Fairness Doctrine were not always favorable to liberals. The doctrine, for instance, helped kill the Equal Rights Amendment as Phyllis Schlafly and her STOP ERA organization got equal time with the amendment’s advocates, who had started with tremendous momentum. Some conservatives thought it was needed as the only counterweight to the “liberal media”, while others saw it as a way to suppress conservatives. There was indeed a case in 1973 in which a conservative Christian broadcaster, Minister Carl McIntire, was denied a license renewal on Fairness Doctrine grounds.
In 1981, President Ronald Reagan appointed Mark S. Fowler to the Federal Communications Commission, an opponent of the Fairness Doctrine. Advances in technology were undermining traditional arguments for the Fairness Doctrine on scarcity grounds and the deregulatory politics of the late 1970s and the 1980s were being applied to radio as well.

In 1987 the FCC voted 4-0 to bring it to an end, an action that President Reagan heartily agreed with. The Democratic Congress, however, did not. Passed in the House and Senate were resolutions overturning the FCC ruling, but Reagan was quick with the veto pen and Congress failed to override. What is striking about the votes is how divided Republican opinion was on the subject. On one hand, you had Dick Armey and Bob Dole siding with the Reagan Administration, but on the other you had Jesse Helms and Newt Gingrich thinking the Fairness Doctrine was worth upholding. The following year, the Rush Limbaugh Show premiered and for a time he was he single most effective voice in conservative media. The incoming Republican Congress in 1995 gave him a lot of credit for having control of the House for the first time in forty years and even unofficially regarded him as an honorary member of the Congress.


The Fairness Doctrine will not return even if the occasional liberal here or there thinks it a good idea. Radio is not, however, the medium it used to be and there’s been a growing attention on cable TV news shows, social media, and podcasts as more prominent mediums of communication, with the latter two growing among the young. With the death of Limbaugh as well as the recent departure of Michael Savage from the radio, it just isn’t the future of what will be prominent. These other mediums wouldn’t have been covered by the Fairness Doctrine in the first place. Its aim made some sense in its time, when radio was of great prominence in the transmission of opinion and there were limited spots, but no longer. Also, there are some disturbing implications about having a Fairness Doctrine return…would the scientists who know the Earth is round have to be counter-balanced by flat-earthers? Would supporters of vaccinations have to be counter-balanced by anti-vaxxers? Under the Fairness Doctrine, such groups may very well win court cases about getting equal representation.


References

McCraw, S.K. (2009). Right to Respond and Right of Reply. The First Amendment Encyclopedia.

Retrieved from

https://www.mtsu.edu/first-amendment/article/1013/right-to-respond-and-right-of-reply

Perry, A. (2017). Fairness Doctrine. The First Amendment Encyclopedia.

Retrieved from

https://www.mtsu.edu/first-amendment/article/955/fairness-doctrine

Pickard, V. (2018). The Strange Life and Death of the Fairness Doctrine: Tracing the Decline of Positive Freedoms in American Policy Discourse. International Journal of Communication, 12 3434-3453.

Retrieved from

https://repository.upenn.edu/cgi/viewcontent.cgi?article=1770&context=asc_papers

The Mayflower Doctrine Scuttled. The Yale Law Journal, 59 759-769.

Retrieved from

https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5322&context=ylj

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