The Fairness Doctrine From 1949 to 1987 and Why Its Repeal Still Matters

Imagine a federal rule that says your local radio station must be fair. Sounds lovely. Now ask the follow-up question nobody at the podium wants to answer: fair according to whom? Because someone has to hold the stopwatch, someone has to decide which side got enough minutes, and that someone works for the government. Every few years a politician discovers the Fairness Doctrine, dusts it off, and talks about it as if it were a warm blanket. It was never a blanket. It was a leash, and the question was always who held the other end.

The story of the doctrine, from 1949 to its collapse in 1987, is one of the great arguments about power in American media. It is usually told as a morality play in which the doctrine died and talk radio was born. The real story is better, and it is a lot more useful to anyone who wants to understand what happens when Washington is put in charge of balance.

What the doctrine actually was

The term "Fairness Doctrine" never appeared in a single statute at the start. It was a policy of the Federal Communications Commission, built on two obligations placed on broadcast licensees. One, a station had to devote some of its airtime to controversial issues of public importance. Two, it had to give a reasonable opportunity for contrasting viewpoints on those issues. The doctrine did not demand equal minutes. It did not demand that each program be balanced. It demanded that the station, over time, not be a one-note instrument.

Notice what it did not cover. It never applied to newspapers, magazines, books, or later to cable channels and websites. It applied to over-the-air radio and television stations because those stations used the public airwaves under a government license. That distinction is the hinge of the whole story, so keep it in your pocket. The theory was that a limited number of frequencies was a public resource, and the person who got one owed the public something in return.

Where did the government get the power to issue licenses in the first place? Congress created the Federal Radio Commission in the Radio Act of 1927 because the early airwaves had turned into a shouting match of overlapping signals. The Communications Act of 1934 replaced that body with the FCC and told it to license stations in "the public interest, convenience, and necessity." That phrase is vague on purpose, and vague words in a statute are an open invitation to bureaucrats. Nearly everything the FCC later did about content was built on those five words.

1949: the FCC changes its mind

The doctrine grew out of a reversal. In 1941 the FCC decided a case involving a Boston station, and the result was that a broadcaster could not editorialize at all. A station owner was supposed to be a neutral conduit and keep his opinions to himself. Think about how strange that is. A newspaper publisher could tell you on the front page what he thought of the mayor, but a radio owner who said the same thing on the air risked his license.

In June 1949 the FCC issued a report titled "In the Matter of Editorializing by Broadcast Licensees." It reversed course. Stations could editorialize after all, the commission said, so long as they covered controversial issues and made a reasonable effort to present the other side. Read that sentence twice. The agency was loosening one restriction and creating another in the same breath. It was a trade: you may have opinions, but we get to supervise whether the rest of your programming is balanced.

Supporters of the 1949 report saw an enlightened bargain. Critics, even then, saw a quiet expansion of federal supervision over what citizens heard on the radio. A government that can tell you to present both sides can also, in practice, tell you which two sides count.

The years of growth: 1959 to 1969

The doctrine grew teeth in the 1960s. In 1959 Congress amended the equal-time law, Section 315 of the Communications Act, which deals with candidates for office. The amendment exempted certain news programs from the equal-time requirement and, in doing so, included language referring to a broadcaster's obligation to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. Defenders of the doctrine would later lean on that language to argue that Congress had endorsed it. Opponents argued that Congress had merely noticed it. That fight turns up again in 1987, so remember it.

Then came the personal-attack rules. If a station aired an attack on the honesty, character or integrity of a person or group during a discussion of a controversial public issue, the station had to notify the person and offer a chance to respond. Political editorial rules did the same for stations that endorsed candidates.

A book by Fred Friendly, the former president of CBS News, titled The Good Guys, the Bad Guys and the First Amendment, describes how officials in the Kennedy administration worked to use the doctrine against conservative radio programs in the early 1960s. You can read the account yourself and judge it. The point for our purposes is simple. A rule enforced by a government agency will, sooner or later, be used by the party that controls the agency against the voices it dislikes. That is not a partisan insult. It is a description of human nature.

1969: Red Lion

The doctrine's biggest test came in Red Lion Broadcasting Co. v. FCC, decided by the Supreme Court in 1969. The facts are the kind a law professor loves. In 1964 a Pennsylvania station, WGCB in Red Lion, carried a program by a minister who attacked the author of a book critical of Barry Goldwater. The author demanded free time to reply. The station refused. The FCC said the personal-attack rule applied and the station had to offer him time. The station sued, arguing the order violated the First Amendment.

The Supreme Court unanimously sided with the FCC. Justice Byron White wrote for the court. The reasoning rested on scarcity. There were more people who wanted to broadcast than there were frequencies, so the government could require licensees to act as fiduciaries for the public. Justice White wrote that it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. Let that one sink in. The court said the audience, as represented by the government, had a claim stronger than the speaker's.

Five years later the court went the other way for print. In Miami Herald Publishing Co. v. Tornillo (1974), it struck down a Florida law that required newspapers to give political candidates a right of reply. The paper's choices about what to print were protected. So the Constitution, the court said, treats a newspaper and a radio station differently. The sheet of paper has a First Amendment. The signal in the air has a First Amendment with an asterisk.

The steelman: why people defended it

Here is the strongest case for the doctrine, stated the way its best defenders would state it.

One, the airwaves belong to the public, and the government is simply the landlord. A tenant who holds a scarce license can fairly be asked to serve the community's need for information.

Two, without it, a few station owners could shape what an entire town hears. Imagine a single powerful voice in a one-station county, and no way for the other side to respond.

Three, the doctrine did not prohibit any viewpoint. It only required that other viewpoints get some room.

Four, it was modest in practice. The FCC found violations rarely, and stations that tried in good faith generally satisfied it.

That is a respectable argument, and I want to give it its due. Now let me tell you why it did not hold up.

Why it fell: the chilling effect

The doctrine collapsed under its own weight, and the reason was not conservatives bullying anyone. It was a pile of evidence. Consider how a station manager thinks. He gets a letter from a lawyer saying a program was one-sided. Answering that letter costs money, takes lawyers, and risks a license renewal fight at the FCC. The safest move is not to rebut the complaint. The safest move is not to air the controversial segment at all. So a rule meant to produce more debate, in practice, taught managers to avoid debate.

In 1985 the FCC, under Chairman Mark Fowler, issued a report on the doctrine that reached exactly that conclusion. After studying the evidence, the commission found that the doctrine tended to inhibit rather than enhance the broadcast of controversial issues, and it raised serious constitutional questions. The same report said that the old scarcity argument looked weaker in a world of many more stations, and later of cable and other media.

Then comes the part the folk history leaves out. In 1987 the Court of Appeals for the D.C. Circuit decided Meredith Corp. v. FCC. Meredith held that the FCC could decide for itself whether the doctrine was in the public interest, because Congress had not written the doctrine into law. In other words, the agency could keep it or drop it. The doctrine was a creature of the commission, and what the commission had made, the commission could unmake.

1987: Congress tries, the President vetoes, the FCC acts

Congress did not take that quietly. In 1987 it passed legislation to write the Fairness Doctrine into the statute books, and President Reagan vetoed the bill in June of that year. The veto message made the First Amendment argument: the doctrine was an intrusion by government into the editorial judgment of broadcasters. The Senate did not have the votes to override.

That is a point worth emphasizing for the sake of honesty. The doctrine's end was not a stealth operation by one party. Congress had a vote, Congress voted to codify, the President said no, and the override failed. The branch with the power to settle the question fully had its chance.

The next move belonged to the FCC. In August 1987, in a decision involving the Syracuse Peace Council, a left-leaning peace group in New York that had complained about a Syracuse television station's advertising on a nuclear power plant, the commission under Chairman Dennis Patrick held that the doctrine no longer served the public interest, and that it violated the First Amendment rights of broadcasters. The commission stopped enforcing it. The D.C. Circuit upheld that result in 1989. Look at who brought the case. It was a peace group on the left. The first person to feel the consequences of the end of the doctrine in a famous case was not a conservative. It was an activist who wanted the government to make a television station run his side of the argument.

The FCC later removed the language from its rulebook altogether, in 2011, a bit of housecleaning that reminded a lot of people that it had been dead for twenty-four years.

What the repeal did and did not do

You will hear two stories about 1987, and both are wrong.

The first story says repeal handed conservatives a talk-radio empire. The truth is more complicated. Talk radio had roots long before 1987, AM stations were searching for a format that FM music had not taken, and technology made national syndication cheap. The longer version of that argument sits in How a Dying AM Dial Turned Into the Biggest Platform for Conservative Ideas. Repeal removed a legal risk, and a removed risk helps any speaker. But a rule change does not build an audience.

The second story says the doctrine's death was a nothing event. That is also wrong. When the government can threaten a license for being one-sided, a rational manager steers clear of heated subjects. When that threat disappears, heated subjects come back. The change mattered. It just did not do the single-handed job that campaigners on both sides have assigned to it.

And the doctrine's supporters made a prediction that failed. If the doctrine was the only thing keeping owners from turning every station into a partisan megaphone, you would expect to see the airwaves dominated by one side. Instead, the airwaves exploded with more voices, more formats, more local programs and more national ones, across every corner of the dial and later across cable and the internet. People who wanted the other point of view built it. Whether those voices are good is a separate argument. Their existence is not a mystery.

The question that outlasts the doctrine

Now to why this still matters. Every few years a politician proposes to bring back the doctrine, sometimes under a new name. The idea is always attractive to whichever side is annoyed at the media at the moment. So let me hand you the test I would use, and I would use it no matter who held the White House.

First, who decides what counts as a controversial issue? Second, who decides what counts as the other side? Third, who hears the complaint, and what is the penalty? Fourth, what does that official's boss, the President, want this week? If the answer to those four questions is "a federal commission appointed by whoever won the last election," then you are not creating fairness. You are renting out the microphone.

That test works against my own side too. A Republican FCC chairman with a fairness rule in his hands would be tempted exactly as a Democratic one would. The conservative principle here is not "our guys should win the next fight over the dial." It is that nobody in Washington should be handed the power to referee political speech, because the referee will be on somebody's team.

There is also a hard question the repeal's critics are entitled to ask. Does the scarcity argument still have any force? Fewer people now rely on a single local station, but the airwaves are still licensed, and the Supreme Court has never formally abandoned the Red Lion reasoning. A future court could revisit it. If you care about this subject, the cases to read are Red Lion and Tornillo side by side. Notice how thin the line is between them, and ask yourself whether a thin line is a good place to rest your freedom to speak.

For a related fight over who the government favors, see Taxpayer-Funded Broadcasting, Ten Questions and the Honest Answers. For how the same argument about power plays out against giant online platforms, see Private Company Is Not the End of the Debate Over Platform Power and Section 230 Explained in Plain English, Down to the Twenty-Six Words. And to see the broader record of what the First Amendment protects, start with Seven Things Americans Get Wrong About the First Amendment.

The bottom line

• The Fairness Doctrine was an FCC policy, not a constitutional principle. The commission created it, and the commission ended it after years of evidence that it made broadcasters avoid controversy.
• Congress tried to codify it in 1987, the President vetoed the bill, and the override failed. The repeal was a choice made in the open, by the branches with the power to make it.
• Repeal was not the whole reason talk radio grew. It removed a legal risk, while technology, economics and an unserved audience did the building.
• Whenever someone proposes a new "fairness" rule, ask who holds the stopwatch. If the answer is a government appointee, say no, and say it no matter which party holds the White House.
• If you want balance, build it: start a show, a newsletter or a blog, support the voices you trust, and answer bad arguments with good ones.