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John Garziglia

The Fairness Doctrine Fallacy

by Broadcast AttorneyJohn Garziglia

The Fairness Doctrine was the wrongly-named rule that horribly discouraged any coverage of controversial issues, and was not generally enforced by the FCC, except when it was. There is a pernicious undercurrent to First Amendment thought that suggests that our Federal government has a role in enabling certain speech in the presence of other speech.  This thought process can best be described by imagining a person on a street corner with a bullhorn and asking, may our government require by law that person with a bullhorn to share his or her bullhorn so that more than one point of view may be heard?  Those who support such a bullhorn-enabling philosophy argue that our government encouraging speech in a content-neutral way is not antithetical to our First Amendment but rather supportive of it. 

Applying the bullhorn analogy to the Fairness Doctrine shows its practical fallacy.  The FCCs Fairness Doctrine told the bullhorn owner (the radio station) that it must give its bullhorn to others to present other points of view, or suffer death (the loss of the radio stations FCC license).  If a bullhorn user was to be subject to death for failing to share its bullhorn for other points of view, it is quickly seen that few people would risk picking up the bullhorn in the first instance.  This is, of course, exactly what happened with the Fairness Doctrine in place.  Few stations, other than those with large budgets for paying lawyers, wished to risk the loss of their license for arguably failing to present other points of view. 

It is worth noting that we still have the political equal opportunity rules.  If one political candidate is allowed the unfettered opportunity to speak on a broadcast station, all other candidates for the same public office are entitled upon request to an equal opportunity to speak.  At least with the FCCs political rules, as difficult as compliance may often be, the right to an equal opportunity generally covers a known universe of potential speakers for a reasonable length of time.  But ask any station owner whether an air personality who runs for public office can be kept on the air.  Indeed, since an air  personality running for public office creates free equal opportunities for all other candidates for that same office, the FCCs equal opportunity rule demonstrably stifles, rather than enables, speech. 

The Fairness Doctrine is finally put to rest.  It had not been enforced for more than 20 years.  That of course did not mean that it could not be or would not be.  But, with the Fairness Doctrine finally history, lively discussions on our nations airwaves can now take place without any vestiges of fear.  Really!  Of course, any programming or indecency complaint against a radio station license renewal application no matter how trivial can hold up a stations license renewal for months or years.  But that is another subject, right?

John Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at 202-857-4455 or jgarziglia@wcsrcom

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