The Fairness Doctrine was a policy of the Federal Communications Commission (FCC or
Commission) that required broadcast licensees to cover issues of public importance and to do so
in a fair manner. Issues of public importance were not limited to political campaigns. Nuclear
plant construction, workers? rights, and other issues of focus for a particular community could
gain the status of an issue that broadcasters were required to cover. Therefore, the Fairness
Doctrine was distinct from the so-called ?equal time? rule, which requires broadcasters to grant
equal time to qualified candidates for public office, because the Fairness Doctrine applied to a
much broader range of topics.
In 1987, after a period of study, the FCC repealed the Fairness Doctrine. The FCC found that the
doctrine likely violated the free speech rights of broadcasters, led to less speech about issues of
public importance over broadcast airwaves, and was no longer required because of the increase in
competition among mass media. The repeal of the doctrine did not end the debate among
lawmakers, scholars, and others about its constitutionality and impact on the availability of
diverse information to the public.
The debate in Congress regarding whether to reinstate the doctrine continues today. In the 109th
Congress, bills such as H.R. 3302 were introduced to reinstate the Fairness Doctrine. However, in
the 110th Congress, the proposed legislation related to the Fairness Doctrine would have
prohibited the FCC from reinstating it. In the Consolidated Appropriations Act of 2008, Congress
forbade the FCC to use any of the funds appropriated to it under the act to reinstate the Fairness
Doctrine. This prohibition continues, temporarily, under the continuing resolution now in effect.
Once the restriction on spending is lifted, the FCC will be free to reinstate the Fairness Doctrine if
the agency so chooses. Congress also may introduce legislation to reinstate the doctrine.
Any attempt to reinstate the Fairness Doctrine likely would be met with a constitutional
challenge. Those opposing the doctrine would argue that it violates their First Amendment rights.
In 1969, the Supreme Court upheld the constitutionality of the Fairness Doctrine, but applied a
lower standard of scrutiny to the First Amendment rights of broadcasters than it applies to other
media. Since that decision, the Supreme Court?s reasoning for applying a lower constitutional
standard to broadcasters? speech has been questioned. Furthermore, when repealing the doctrine,
the FCC found that, as the law stood in 1987, the Fairness Doctrine violated the First Amendment
even when applying the lower standard of scrutiny to the doctrine. No reviewing court has
examined the validity of the agency?s findings on the constitutional issue. Therefore, whether a
newly instituted Fairness Doctrine would survive constitutional scrutiny remains an open
question.