Fairness Doctrine: History and Constitutional Issues

Kathleen Ann Ruane
Legislative Attorney

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In 1987, after a period of study, the FCC repealed the Fairness Doctrine.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. Recently, Chairman Upton of the House Subcommittee on Communications and Technology sent a letter to FCC Chairman Genachowski urging the Commission to remove the regulations relating to the Fairness Doctrine from the Code of Federal Regulations. Chairman Genachowski responded by reasserting his lack of support for the Fairness Doctrine and agreeing to begin the process of repealing the regulations.

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.


Date of Report: July 13, 2011
Number of Pages: 17
Order Number: R40009
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