On Television
FRANK, REUVEN
On Television FAIRNESS IS IN THE EYE OF THE BEHOLDER BY REUVEN FRANK THE FAIRNESS DOCTRINE, now in the news again, was the means for denying First Amendment protection to broadcasting. Although...
...Senate unanimously passed ERISA, the law controlling these abuses...
...Two thirds of the stations thereupon refused the ads...
...The regulation grew out of the 1927 law giving the government the power to license broadcast frequencies...
...They had a variety of telling names: Committee for the Fair Broadcasting of Controversial Issues...
...The FCC upheld the complaint...
...Rather than take the easy way out and use up a little broadcast time somewhere to satisfy the Commission, NBC uncharacteristically chose to go to court...
...Could his concept of "market dysfunction" even wipe out the Court's Miami Herald decision and allow extending the Fairness Doctrine to newspapers...
...This was unique to the medium...
...Baze-lon's prescience was astonishing...
...Circuit Court of Appeals, licenses were lifted because the broadcasters were judged to have been in violation...
...Under it the FCC would inquire into all complaints against something broadcast, decide if the broadcast was fair, and pick the remedy for those considered unfair—ranging from a compensatory broadcast on the "other" side to the cancellation of a license...
...if one makes a statement, any opponent may make one of equal length...
...The current campaign to bring the Fairness Doctrine back seemed to have been all but stymied, ironically, by Rush Limbaugh and other Right-wingers among the talk fraternity...
...Broadcasters and their sundry trade groups, as well as advertisers and their associations, made the argument for repeal...
...toward the business community" by the Maine Nuclear Referendum Committee...
...that the doctrine not only imposed unreasonable costs on them but on the Commission itself, because it was obliged to examine every complaint...
...Broadcasters learned that doing nothing was safest...
...Equality is measured in time...
...Frequently...
...Media Access Project and the Telecommunications Research and Action Center, Black Citizens for a Fair Media, etc...
...They contended that to avoid facing the nuisance, expense and even threat inherent in exposing themselves to problems arising from observing the Fairness Doctrine, stations presented as little controversial material as possible, or none at all...
...Among the arguments for keeping the doctrine was the claim that it protected the public from the broadcasters' bias...
...In the Red Lion and the Brandywine cases, license renewal was denied for dealing with controversy...
...Nor did it take into account the salaries of diverted executives, the payment of staff assigned to nothing else, and related expenditures...
...But the same words in print have First Amendment protection...
...The Fairness Doctrine, it should be noted, had nothing to do with the "equal time" proviso...
...The FCC ultimately dismissed the charge, but not before the station had run up a $20,000 bill for legal fees alone...
...If one candidate is sold commercial time, his opponent(s) must be sold equal time...
...Senator Ernest F. Hollings of South Carolina and Representative John D. Dingell of Michigan, as well as Representative Edward J. Markey of Massachusetts, a subcommittee chairman of considerable clout and manifest ambition...
...and that the threat of putting them out of business by revoking their licenses was used to get broadcasters to give up time...
...In two famous cases, Red Lion (1969), decided in the Supreme Court, and Brandywine (1972), decided in the country's next most important tribunal, the D.C...
...A nonnetwork station in Nebraska testified that it would not buy documentaries on national or international subjects because they were sure to cause fairness problems...
...The hearings preceding the move were confined to what it called the "second prong," relating to opposing views...
...In fact, that was merely the better-known half of the rule...
...News programs, news interview programs and coverage of newsworthy live events are exempt from this stipulation...
...One TV station would not cover nuclear power problems or editorialize on the arms race...
...Remember...
...Since the profits of Spokane's three TV stations totaled less than $500,000 that year, the cost was not insignificant...
...The network was upheld, but that took $ 100.000 just for outside lawyers, a sum no small station could contemplate...
...decide that it was too expensive to continue...
...The Fairness Doctrine, freshly codified, was part of this new instruction...
...When California's beverage industry sought to buy radio commercials opposing a bottle deposit bill, the pro-bottle lobby wired 500 stations demanding twice the amount of time free from any station accepting the commercials...
...In 1974, when a Florida law sought to grant aggrieved candidates a "right to reply" in print—as is required on the air—a unanimous United States Supreme Court declared the law was unconstitutional (Miami Herald Publishing Co...
...In Brandywine, the vigorous dissent of Chief Justice David Bazelon foreshadowed what the Commission itself would find 15 years later...
...Nonetheless, those who would circumvent the First Amendment have learned they must establish their excuses carefully...
...v. Tornillo...
...in a letter to the FCC from Richard Hill and Donald W. Harris, not otherwise identified...
...Up to then, anyone could put up a radio transmitter, resulting in chaos...
...The other half, largely unenforced, required stations to present such topics in the first place...
...Because it could not afford to produce its own, such material was not presented on that station...
...A broadcast about the Nazi Holocaust brought the demand for airing of the opposing view, that the Holocaust was a myth...
...That is also what concerns the people who would bring back the Fairness Doctrine —not simply as an FCC rule, but as Federal law...
...Limited to qualified candidates during election campaigns, that prohibits a station from doing anything for one it does not do for all who are seeking the same office...
...Government interference was not based on truth or good public order or any of the other shibboleths of the press muzzlers...
...The Fairness Doctrine was popularly perceived to be the Federal Communications Commission (FCC) rule that broadcasters dealing with controversial topics must offer opposing views...
...In the case of broadcasting, the excuse was a scarcity of frequencies...
...The Fairness Doctrine was tested in court many times, and every time judges allowed it to stand, occasionally in open embarrassment, to protect "a scarce resource...
...While it was on the books, criticizing the doctrine seemed antisocial, like being against motherhood, or "traditional values...
...In 1941, during America's bitter debate between isolationists and interventionists, with control of the now powerful radio networks and their increasingly important news departments centered in effete, Eastern New York, the FCC forbade broadcasters from taking sides on public issues...
...Another refused to broadcast typically innocuous "public service announcements" supporting the Nixon White House campaign to "Whip Inflation Now?WIN...
...The FCC Blue Book ordered stations to editorialize...
...The FCC repealed the 50-year-old tenet in 1987...
...Jeb Magruder wrote in 1969 that President Richard M. Nixon had his staff make complaints of "unfair" news coverage 21 times in 30 days...
...NBC's documentary, Pensions: The Broken Promise, detailing instances of pensioners being denied what they were promised, was attacked for presenting a "distorted" view of the pension system and promoting government regulation...
...After the War, when radio was the country's prime source of information, the Commission completely reversed itself...
...Beyond all this, the Fairness Doctrine has been a partisan weapon for politicians...
...This bias was identified as "liberal" by the American Legal Foundation...
...Regularly...
...The FCC found for the station—three years later...
...If we are to go after gnats with a sledgehammer like the Fairness Doctrine, we ought at least to look at what is smashed beneath our blow," he wrote...
...Now comes the Solicitor General of the United States, Drew S. Day III...
...Lawyers who specialize in communications do not know what the Solicitor General's interpretation means...
...The FCC devoted weeks of its 1987 hearings to "interested" organizations eager to retain the Fairness Doctrine...
...They are led by two powerful Congressional committee chairmen...
...Although all Americans believe in free speech and a free press, only purists believe in them absolutely...
...Here are some examples that the Commission said influenced its decision: ?A Spokane station was accused of unfairly presenting the case for a state bond issue...
...and "favoring the views of the Zionist/Israeli lobby...
...And he added: "If the Fairness Doctrine cannot withstand First Amendment scrutiny, the reason is that to insure a balanced presentation of controversial issues may be to insure no presentation, or no vigorous presentation, at all...
...Both cases, indeed, were against broadcasters from what we now call the Religious Right, and what they said probably distorted facts and certainly offended many...
...They are in something of a panic...
...Appearing before the Supreme Court in a cable broadcasting case in September, he postulated that Red Lion, which justified the Fairness Doctrine by the today clearly obsolete concept of scarcity of broadcast outlets, actually was based on something else: "the resulting inability of the broadcasting market to function successfully...
...Shortly after the program aired, the U.S...
...whatf.VERthetheoryoftheFair-ness Doctrine, in practice it meant that a broadcaster who mentioned a matter of the slightest controversy was open to challenge by a special interest...
...The liberal's bete noire, the Wall Street Journal editorialist, called it the "Hush Rush Law," and enough telephone calls to Congressmen were stimulated to virtually stop the campaign...
...Needless to say, the commissioners who held the hearings in 1987 were not the same ones involved in these examples from the '60s and '70s...
...As soon as reviving it was proposed, they proclaimed the purpose was to muzzle them, and especially him...
...Broadcasters' complaints that far from expanding discussion the Fairness Doctrine inhibited it were ignored until the Commission held its hearings and found that this really was so...
...No corresponding rules for newspapers have ever survived...
...Most Americans, conditioned to accept that a soap-flake is new and improved because the box says so, could not understand anyone rejecting fairness...
...It was based on something called "balance," on the simpleminded belief that there could not be a view without an opposing view...
...Some very good lawyers think that is not out of the question...
...On the Democratic side, according to the FCC, President John F. Kennedy's Assistant Secretary of Commerce, William Ruder, said the Administration had used the Fairness Doctrine "to challenge and harass the Right-wing broadcasters, and hoped that the challenges would be so costly to them that they would...
Vol. 76 • November 1993 • No. 13
