Should Broadcasters be Required to Offer Equal Airtime to Opposing Views on Issues of Public Importance? (H.R. 4401)

What is H.R. 4401?

(Updated June 8, 2020)

This bill — the Restore the Fairness Doctrine Act of 2019 — would reinstate broadcast licensees’ obligation to offer reasonable opportunity for the discussion of conflicting views on issues of public importance. From 1949 to 1987, broadcasters were required to devote equal airtime to opposing viewpoints under what was known as the “Fairness Doctrine.”

Argument in favor

The Fairness Doctrine was an important rule that ensured broadcasters offered equal coverage to both sides of issues. In its absence, radio and television coverage of important issues has become skewed, hurting political discourse and civility. Reinstating the Fairness Doctrine could help better inform the public on all sides of important issues.

Argument opposed

The Fairness Doctrine is easily abused for political ends, difficult for the FCC to administer in a reasonable manner, and no longer necessary in light of the numerous broadcasters in today’s media landscape. Reinstating the Fairness Doctrine would have a chilling effect on free speech, in addition to being administratively challenging to implement.

Impact

Broadcasters; radio; television; television news; radio news; television talk shows; radio talk shows; and the FCC.

Cost of H.R. 4401

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Tulsi Gabbard (D-HI) introduced this bill to reinstate the Fairness Doctrine. Writing in in 2017, journalist D.R. Tucker argued that the Fairness Doctrine’s repeal hurt the U.S. and the Democratic Party:

“[The Fairness Doctrine’s repeal is one of] the most destructive decisions in the modern American media history, a shamefully successful effort to divide our public airwaves along partisan lines, a choice that made a few people rich while impoverishing our democracy… The repeal of the Fairness Doctrine hurt this country. That one action gave us three decades of radio programs that recklessly reaffirmed prejudices, smeared Democrats so thoroughly that some parts of this country have now seemingly become off-limits for the party, and set Americans at each other’s throats. Some legacy, eh?”

Historically, Democrats have argued that reinstating the Fairness Doctrine is a matter of providing accountability and balance in media for the American people. During a Senate Appropriations Subcommittee hearing in 2018, Sen. Joe Manchin (D-WV) blamed the Fairness Doctrine’s demise for the divisiveness of the current national political discourse, saying, “Up until that time we never had one side or the other side—it was both sides.” Sen. Manchin suggested that Congress, rather than the FCC, should look at ways to revive a Fairness Doctrine-like policy for broadcasters, and observed the need for such a policy: 

“Something has to be done to save our country because right now we’re destroying each other—we’re pushed politically to the brinks of engagement. It worked up until that point of time and it’s gone to heck in a handbasket since.”

In 1993, the Heritage Foundation’s Adam Thierer, then the F.M. Kirby Research Fellow in National Security Policy, argued that the Fairness Doctrine is “anything but fair.” Thierer argued that the continuously increasing number of broadcasters in the U.S. nullified the need for federal regulators to regulate the “scarce” amount of spectrum space, since spectrum space wasn’t actually scarce. He also argued that FCC bureaucrats were ill-equipped to determine what’s “fair,” or to enforce it. Finally, he argued that arbitrary enforcement of the fairness doctrine would diminish vigorous debate.

In 2009, conservative radio talk show host Rush Limbaugh wrote an open letter to President Barack Obama in the Wall Street Journal opposing a proposal to revive the Fairness Doctrine. He wrote, “I would encourage you not to allow your office to be misused to advance a political vendetta against certain broadcasters whose opinions are not shared by many in your party.” Further, Limbaugh argued that the Fairness Doctrine and similar rules regarding media content are regulatory weapons that’d amount to the “death knell of talk radio.”

This legislation doesn’t have any cosponsors.

Of Note: The Fairness Doctrine was a U.S. communications policy that was in effect from 1949 to 1987. It was formulated by the Federal Communications Commission (FCC) and required licensed radio and television broadcasters to present fair and balanced coverage of controversial issues of interest to their communities. This included devoting equal airtime to opposing points of view. 

Opponents of the fairness doctrine argued that the equal airtime requirement infringed on First Amendment free speech rights. In 1969, the Fairness Doctrine survived a challenge in the Supreme Court case Red Lion Broadcasting Co. v. Federal Communications Commission. In that case, the Court found that the FCC acted within its jurisdiction in ruling that a Pennsylvania radio station had violated the fairness doctrine by denying response time to a writer whom a broadcast had characterized as a communist sympathizer. 

However, in 1985 the FCC decided that the fairness doctrine had a chilling effect upon free speech, making some stations reluctant to discuss controversial issues. Around the same time, cable and satellite television networks challenged the doctrine’s applicability to their industries. Soon thereafter, the FCC formally repealed the fairness doctrine in 1987. 

When the Reagan-era FCC unanimously voted to abolish the fairness doctrine on August 4, 1987, it did so on the grounds that it unconstitutionally restricted broadcast journalists’ free speech rights. The FCC Chairman, Dennis R. Patrick, said, “We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception.”

In response to the FCC’s decision, Ralph Nader called the decision a major setback, saying, “The fairness doctrine is not only constitutionally permissible, it is constitutionally required.” He also added that the fairness doctrine’s repeal would allow broadcasters to “ignore crucial issues or present only one side” of debates. Nader also contended that the fairness doctrine’s repeal would make news judgmental increasingly reflect a business orientation at the cost of issues such as women’s rights, the health effects of smoking, and nuclear power plants’ safety.

In 2005, Fairness & Accuracy in Reporting’s (FAIR) Steve Rendall argued that the fairness doctrine was a net benefit to the public and pointed out that it enjoyed support across the political spectrum over the years: 

“[The Fairness Doctrine] did not require that each program be internally balanced, nor did it mandate equal time for opposing points of view. And it didn’t require that the balance of a station’s program lineup be anything like 50/50. Nor, as Rush Limbaugh has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talkshow hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talkshows. Indeed, the talkshow format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talkshow schedules, even in liberal cities, but none was ever muzzled…The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views… when it was in place, citizen groups used the Fairness Doctrine as a tool to expand speech and debate. For instance, it prevented stations from allowing only one side to be heard on ballot measures. Over the years, it had been supported by grassroots groups across the political spectrum, including the ACLU, National Rifle Association and the right-wing Accuracy In Media.”

Even after the Fairness Doctrine’s 1987 repeal, the editorial and personal-attack provisions remained in effect until 2000, until the FCC repealed them in 2011. After 2011, the Fairness Doctrine’s repeal ushered in the phenomenon of conservative talk radio, creating a new political force and giving broadcasters like Rush Limbaugh tremendous influence. 

When the Fairness Doctrine was fully scrapped in 2011, Republicans on the House Energy and Commerce Committee applauded the decision. In a joint statement, Reps. Fred Upton (R-MI) and Greg Walden (R-OR) said: 

“The Fairness Doctrine is a relic of an earlier era when government officials thought they knew best what news and information the American people wanted and needed. The FCC has finally done what it should have done 20 years ago: It has scrapped the Fairness Doctrine once and for all.”

Media:

• FAIR (In Favor in Principle)
  
• Washington Monthly Op-Ed (In Favor in Principle)
  
• Wall Street Journal Op-Ed (Opposed in Principle)
  
• Heritage Foundation (Opposed in Principle)
  
• TIME (Context)
  
• Encyclopaedia Britannica (Context)
  
• Journal of Policy History (Context)