Digital Media and Data Privacy Law Blog

With the arrival of a new presidential administration, and with the explosive growth of alternative ways for people to get their daily news and opinion, a legal issue once thought settled is again in the headlines.

The “Fairness Doctrine,” first imposed by the Federal Communications Commission in 1949, required television and radio broadcast stations to give reasonable opportunity for the discussion of conflicting views on issues of public importance.

In 1987, the FCC ruled that the doctrine violated the First Amendment and did not serve the public interest because it: (1) discouraged broadcasters from covering controversial issues of public importance, (2) lessened the flow of diverse viewpoints to the public, and (3) was unnecessary due to technological developments, including the growth in the number of radio and television stations and the expansion of cable television.

With the rise of conservative talk radio in the 1990s, a small group on the political left began to clamor for a re-examination of that decision. The clamoring increased considerably during the 2008 presidential election, especially as Democrats gained control of Congress and the White House.

In response, politicians of all stripes and free speech advocates have made clear that they view the Fairness Doctrine as profoundly unfair to the First Amendment.

Finally, in late February, the Senate overwhelmingly passed an amendment that would prohibit the FCC from reinstating the doctrine. This after President Obama made clear that he did not support any move by the FCC to re-open the issue.

Nonetheless, people like FCC Commissioner Robert McDowell are concerned that the Fairness Doctrine may return in another form and with another name (e.g., “localism,” or net neutrality).

Finally, see below for a speech on the Fairness Doctrine by one of our colleagues, Mark Prak.  He was invited to speak at the John Locke Foundation, and he provided a brief history of the doctrine's rise and fall, along with his views of the current debate.