Born out of a progression of decisions by the Federal Communications Commission (FCC) and then codified by Congress in 1959, the fairness DOCTRINE requires a BROADCASTING license holder "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Although the doctrine was upheld against a FIRST AMENDMENT challenge in RED LION BROADCASTING COMPANY V. FCC (1969), it has been perceived increasingly as an intrusive exception to the First Amendment, with diminishing justification.
The doctrine, applicable to radio and television licensees and to some cable operators, requires a licensee that presents a controversial issue to provide a reasonable amount of time for contrasting viewpoints. A less frequently litigated aspect of the doctrine requires affirmative coverage of issues important to the public. Finally, the doctrine assures persons who are disparaged on the air-waves a limited right to respond.
The doctrine reflects a distinction in the way Congress and the courts have conceived of newspapers, on the one hand, and broadcasters on the other. Thus, in MIAMI HERALD V. TORNILLO (1974) the Supreme Court held unconstitutional on First Amendment grounds a Florida statute that required a newspaper to grant a right of reply to persons attacked in its columns. The Court did not distinguish Red Lion but ignored it.
Recently a campaign to narrow, if not eliminate, the fairness doctrine has gained momentum. When the fairness doctrine was in full sway, its justification was a supposed scarcity of the channels available for transmission of broadcast signals. Those who wished to communicate by the printed word were not curtailed by government action or the rationing of resources. On the other hand, the number of channels for radio and television transmission was demonstrably limited. Cable television and other new technologies have undermined the "scarcity" justification for regulation by providing abundant new channels.
Some have argued that the spectrum of broadcasting channels is a public resource, and thus that the federal government can insist that a private user of that resource give voice to many speakers. In another perspective, emphasis on the right of the licensee to be an unencumbered editor is misplaced. Expressing this...