The End of Fairness: How Repeal of the Fairness Doctrine in 1987 altered political discourse in the US

EDWARD MONKS for The Register-Guard
June 30, 2002

ONCE UPON A TIME, in a country that now seems far, far away, radio and television broadcasters had an obligation to operate in the public interest. That generally accepted principle was reflected in a rule known as the Fairness Doctrine.

The rule, formally adopted by the Federal Communications Commission in 1949, required all broadcasters to devote a reasonable amount of time to the discussion of controversial matters of public interest. It further required broadcasters to air contrasting points of view regarding those matters. The Fairness Doctrine arose from the idea imbedded in the First Amendment that the wide dissemination of information from diverse and even antagonistic sources is essential to the public welfare and to a healthy democracy.

The FCC is mandated by federal law to grant broadcasting licenses in such a way that the airwaves are used in the “public convenience, interest or necessity.” The U.S. Supreme Court in 1969 unanimously upheld the constitutionality of the Fairness Doctrine, expressing the view that the airwaves were a “public trust” and that “fairness” required that the public trust accurately reflect opposing views.

However, by 1987 the Fairness Doctrine was gone – repealed by the FCC, to which President Reagan had appointed the majority of commissioners.

That same year, Congress codified the doctrine in a bill that required the FCC to enforce it. President Reagan vetoed that bill, saying the Fairness Doctrine was “inconsistent with the tradition of independent journalism.” Thus, the Fairness Doctrine came to an end both as a concept and a rule.

Talk radio demonstrates how profoundly the FCC’s repeal of the Fairness Doctrine has affected political discourse. In recent years almost all nationally syndicated political talk radio hosts on commercial stations have openly identified themselves as conservative, Republican, or both: Rush Limbaugh, Michael Medved, Michael Reagen, Bob Grant, Ken Hamblin, Pat Buchanan, Oliver North, Robert Dornan, Gordon Liddy, Sean Hannity, Michael Savage, et al. The spectrum of opinion on national political commercial talk radio shows ranges from extreme right wing to very extreme right wing – there is virtually nothing else.

On local stations, an occasional nonsyndicated moderate or liberal may sneak through the cracks, but there are relatively few such exceptions. This domination of the airwaves by a single political perspective clearly would not have been permissible under the Fairness Doctrine.

Eugene is fairly representative. There are two local commercial political talk and news radio stations: KUGN, owned by Cumulus Broadcasting, the country’s second largest radio broadcasting company, and KPNW, owned by Clear Channel Communications, the largest such company.

KUGN’s line-up has three highly partisan conservative Republicans – Lars Larson (who is regionally syndicated), Michael Savage and Michael Medved (both of whom are nationally syndicated), covering a nine-hour block each weekday from 1 p.m. until 10 p.m. Each host is unambiguous in his commitment to advancing the interests and policies of the Republican party, and unrelenting in his highly personalized denunciation of Democrats and virtually all Democratic Party policy initiatives. That’s 45 hours a week.

For two hours each weekday morning, KUGN has just added nationally syndicated host Bill O’Reilly. Although he occasionally criticizes a Republican for something other than being insufficiently conservative, O’Reilly is clear in his basic conservative viewpoint. His columns are listed on the Townhall.com web site, created by the strongly conservative Heritage Foundation. That’s 55 hours of political talk on KUGN each week by conservatives and Republicans. No KUGN air time is programmed for a Democratic or liberal political talk show host.

KPNW carries popular conservative Rush Limbaugh for three hours each weekday, and Michael Reagan, the conservative son of the former president, for two hours, for a total of 25 hours per week.

Thus, between the two stations, there are 80 hours per week, more than 4,000 hours per year, programmed for Republican and conservative hosts of political talk radio, with not so much as a second programmed for a Democratic or liberal perspective.

For anyone old enough to remember 15 years earlier when the Fairness Doctrine applied, it is a breathtakingly remarkable change – made even more remarkable by the fact that the hosts whose views are given this virtual monopoly of political expression spend a great deal of time talking about “the liberal media.”

Political opinions expressed on talk radio are approaching the level of uniformity that would normally be achieved only in a totalitarian society, where government commissars or party propaganda ministers enforce the acceptable view with threats of violence. There is nothing fair, balanced or democratic about it. Yet the almost complete right wing Republican domination of political talk radio in this country has been accomplished without guns or gulags. Let’s see how it happened.

As late as 1974, the FCC was still reporting that “we regard strict adherence to the Fairness Doctrine as the single most important requirement of operation in the public interest – the sine qua non for grant for renewal of license.” That view had been ratified by the U.S. Supreme Court, which wrote In glowing terms in 1969 of the people’s right to a free exchange of opposing views on the public airwaves:

“But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount,” the court said. “Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airwaves anything but their own views of fundamental questions.”

Through 1980, the FCC, the majority in Congress and the U. S. Supreme Court all supported the Fairness Doctrine. It was the efforts of an interesting collection of conservative Republicans (with some assistance from liberals such Sen. William Proxmire, a Wisconsin Democrat, and well-respected journalists such as Fred Friendly) that came together to quickly kill it.

The position of the FCC dramatically changed when President Reagan appointed Mark Fowler as chairman in 1981. Fowler was a lawyer who had worked on Reagan’s campaign, and who specialized in representing broadcasters. Before his nomination, which was well received by the broadcast industry, Fowler had been a critic of the Fairness Doctrine. As FCC chairman, Fowler made clear his opinion that “the perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants.” He quickly put in motion of series of events leading to two court cases that eased the way for repeal of the Fairness Doctrine six years later.

At almost the same time, Sen. Bob Packwood, R-Ore., who became chairman of the Commerce Committee when Republicans took control of the Senate in 1981, began holding hearings designed to produce “evidence” that the Fairness Doctrine did not function as intended.

Packwood also established the Freedom of Expression Foundation, described by its president, Craig Smith, long associated with Republican causes, as a “foundation which would coordinate the repeal effort using non-public funds, and which could provide lobbyists, editorialists and other opinion leaders with needed arguments and evidence.”

Major contributors to the foundation included the major broadcast networks, as well as Philip Morris, Anheuser-Busch, AT&T and TimesMirror.

Packwood and the foundation argued that the Fairness Doctrine chilled or limited speech because broadcasters became reluctant to carry opinion-oriented broadcasts out of fear that many organizations or individuals would demand the opportunity to respond. The argument, which appealed to some liberals such as Proxmire, thus held that the doctrine, in practice, decreased the diversity of opinion expressed on public airwaves.

In 1985, the FCC formally adopted the views advanced by Packwood and the foundation, issuing what was termed a “Fairness Report,” which contained a “finding” that the Fairness Doctrine in actuality “inhibited” broadcasters and that it “disserves the interest of the public in obtaining access to diverse viewpoints.” Congress, and much of the rest of the country, remained unconvinced.

Shortly thereafter, in a 2-1 decision in 1986, the U.S. Court of Appeals for the District of Columbia upheld a new FCC rule refusing to apply the Fairness Doctrine to teletext (the language appearing at the bottom of a television screen). The two-judge majority decided that Congress had not made the Fairness Doctrine a binding statutory obligation despite statutory language supporting that inference. The two judges were well-known conservatives Antonin Scalia and Robert Bork, each thereafter nominated to the U.S. Supreme Court by President Reagan. Their ruling became the beginning of the end for the Fairness Doctrine.

The next year, 1987, in the case Meredith Corp. vs. FCC, the FCC set itself up to lose in such a way as to make repeal of the Fairness Doctrine as easy as possible. The opinion of the District of Columbia Court of Appeals took note of the commission’s intention to undercut the Fairness Doctrine:

“Here, however, the Commission itself has already largely undermined the legitimacy of its own rule. The FCC has issued a formal report that eviscerates the rationale for its regulations. The agency has deliberately cast grave legal doubt on the fairness doctrine. …”

The court was essentially compelled to send the case back to the FCC for further proceedings, and the commission used that opportunity to repeal the Fairness Doctrine. Although there have been several congressional attempts to revive the doctrine, Reagan’s veto and the stated opposition of his successor, George Bush, were successful in preventing that.

It is difficult to underestimate the consequences of repeal of the Fairness Doctrine on the American political system. In 1994, when Republicans gained majorities in both chambers of Congress, Newt Gingrich, soon to become speaker of the House, described the voting as “the first talk radio election.”

Although it is not susceptible to direct proof, it seems clear to me that if in communities throughout the United States Al Gore had been the beneficiary of thousands of hours of supportive talk show commentary and George W. Bush the victim of thousands of hours of relentless personal and policy attack, the vote would have been such that not even the U.S. Supreme Court could have made Bush president.

Broadcasters’ choice to present conservative views is not purely about attracting the largest number of listeners. Broadcasters and their national advertisers tend to be wealthy corporations and entities, operated and owned by wealthy individuals. Virtually all national talk show hosts advocate a reduction or elimination of taxes affecting the wealthy. They vigorously argue for a reduction in income taxes, abolition of the estate tax and reduction or elimination of the capital gains tax – positions directly consistent with the financial interests of broadcasters and advertisers.

Imagine a popular liberal host who argued for a more steeply graduated income tax, an increase in the tax rate for the largest estates and an increase in the capital gains tax rate.

Broadcasters and advertisers have no interest in such a host, no matter how large the audience, because of the host’s ability to influence the political climate in a way that broadcasters and advertisers ultimately find to be economically unfavorable.

Hence we wind up with a distortion of a true market system in which only conservatives compete for audience share. Whether the theory is that listeners listen to hear views they agree with, or views they disagree with, in a purely market driven arena, broadcasters would currently be scrambling to find liberal or progressive talk show hosts. They are not.

The beneficiaries of the talk show monopoly are not content. Immediately after he became House speaker, Newt Gingrich led the Republican battle to eliminate federal funding for the Corporation for Public Broadcasting, which, free of some commercial considerations, had broadcast a wider spectrum of opinion. Although not fully successful, that campaign led to a decrease in federal funding for the CPB, a greater reliance on corporate “sponsors” and a drift toward programming acceptable to conservatives.

No reasonable person can claim that the repeal of the Fairness Doctrine has led to a wider diversity of views – to a “warming” of speech, as the FCC, the Freedom of Expression Foundation and others had predicted.

Perhaps it should not be a surprise that the acts of President Reagan, Reagan’s FCC appointments, Sen. Packwood, Justice Scalia and failed Supreme Court nominee Bork and the first President Bush should combine to ultimately produce, in my town, a 4,000 hour to zero yearly advantage for Republican propaganda over the Democratic opposition.Nor should we overlook the Orwellian irony that the efforts of an organization calling itself the Freedom of Expression Foundation helped result in so limited a range of public expression of views.

Perhaps the current president, aware that the repeal of the Fairness Doctrine had the opposite effect of what was publicly predicted by his predecessors and aware that a monopoly on public expression is inconsistent with a democratic tradition, will direct his administration to reinstate the Fairness Doctrine. What about that cold day in hell?