FAIRNESS DOCTRINE

The policy of the United States Federal Communications Commission that became known as the “Fairness Doctrine” is an attempt to ensure that all coverage of controversial issues by a broadcast station be balanced and fair. The FCC took the view, in 1949, that station licensees were “public trustees,” and as such had an obligation to afford reasonable opportunity for discussion of contrasting points of view on controversial issues of public importance. The Commission later held that stations were also obligated to actively seek out issues of importance to their community and air programming that addressed those issues. With the deregulation sweep of the Reagan Administration during the 1980s, the Commission dissolved the fairness doctrine.

This doctrine grew out of concern that because of the large number of applications for radio station being submitted and the limited number of frequencies available, broadcasters should make sure they did not use their stations simply as advocates with a singular perspective. Rather, they must allow all points of view. That requirement was to be enforced by FCC mandate.

From the early 1940s, the FCC had established the “Mayflower Doctrine,” which prohibited editorializing by stations. But that absolute ban softened somewhat by the end of the decade, allowing editorializing only if other points of view were aired, balancing that of the station’s. During these years, the FCC had established dicta and case law guiding the operation of the doctrine.

In ensuing years the FCC ensured that the doctrine was operational by laying out rules defining such matters as personal attack and political editorializing (1967). In 1971 the Commission set requirements for the stations to report, with their license renewal, efforts to seek out and address issues of concern to the community. This process became known as “Ascertainment of Community Needs,” and was to be done systematically and by the station management.

The fairness doctrine ran parallel to Section 315 of the Communications Act of 1937 which required stations to offer “equal opportunity” to all legally qualified political candidates for any office if they had allowed any person running in that office to use the station. The attempt was to balance–to force an even handedness. Section 315 exempted news programs, interviews and documentaries. But the doctrine would include such efforts. Another major difference should be noted here: Section 315 was federal law, passed by Congress. The fairness doctrine was simply FCC policy.

The FCC fairness policy was given great credence by the 1969 U.S. Supreme Court case of Red Lion Broadcasting Co., Inc. v. FCC. In that case, a station in Pennsylvania, licensed by Red Lion Co., had aired a “Christian Crusade” program wherein an author, Fred J. Cook, was attacked. When Cook requested time to reply in keeping with the fairness doctrine, the station refused. Upon appeal to the FCC, the Commission declared that there was personal attack and the station had failed to meet its obligation. The station appealed and the case wended its way through the courts and eventually to the Supreme Court. The court ruled for the FCC, giving sanction to the fairness doctrine.

The doctrine, nevertheless, disturbed many journalists, who considered it a violation of First Amendment rights of free speech/free press which should allow reporters to make their own decisions about balancing stories. Fairness, in this view, should not be forced by the FCC. In order to avoid the requirement to go out and find contrasting viewpoints on every issue raised in a story, some journalists simply avoided any coverage of some controversial issues. This “chilling effect” was just the opposite of what the FCC intended.

By the 1980s, many things had changed. The “scarcity” argument which dictated the “public trustee” philosophy of the Commission, was disappearing with the abundant number of channels available on cable TV. Without scarcity, or with many other voices in the marketplace of ideas, there were perhaps fewer compelling reasons to keep the fairness doctrine. This was also the era of deregulation when the FCC took on a different attitude about its many rules, seen as an unnecessary burden by most stations. The new Chairman of the FCC, Mark Fowler, appointed by President Reagan, publicly avowed to kill to fairness doctrine.

By 1985, the FCC issued its Fairness Report, asserting that the doctrine was no longer having its intended effect, might actually have a “chilling effect” and might be in violation of the First Amendment. In a 1987 case, Meredith Corp. v. FCC, the courts declared that the doctrine was not mandated by Congress and the FCC did not have to continue to enforce it. The FCC dissolved the doctrine in August of that year.

Duration : 0:2:50

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Abolish Religious Exemptions from the Law? (Part 2)

In the United States and other countries, religious institutions have traditionally enjoyed a privileged position, i.e., they have been granted exemptions from compliance with certain laws (including, without limitation, laws against discrimination in employment and laws requiring the payment of taxes). Is it appropriate or even useful for religion to have this privileged status?

Links:

1. Wisconsin Supreme Court’s use of the “ministerial exception” to dismiss an age discrimination case against a Catholic school system

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=38088

2. New York Court of Appeals decision in Catholic Charities of the Diocese of Albany v. Serio

http://www.law.cornell.edu/nyctap/I06_0127.htm

3. California Supreme Court’s decision in Catholic Charities of Sacramento v. Superior Court (Unfortunately, I can’t find a generally accessible URL for this decision. The citation is 85 P.3d 67 (2004).)

4. Jonathan Turley’s Op-Ed piece entitled “When it comes to religious groups, who’s really facing discrimination?”

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/16/AR2010041602027.html

5. Employment Division v. Smith

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZO.html

6. Bob Jones University v. United States

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0461_0574_ZO.html

7. New York Times article on the Ocean Grove Camp Meeting Association case

8. Part 1 of this video series

http://www.youtube.com/watch?v=G5TBxCfnFiw

Duration : 0:9:56

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Abolish Religious Exemptions from the Law? (Part 1)

In the United States and other countries, religious institutions have traditionally enjoyed a privileged position, i.e., they have been granted exemptions from compliance with certain laws (including, without limitation, laws against discrimination in employment and laws requiring the payment of taxes). Is it appropriate or even useful for religion to have this privileged status?

Links:

1. Regarding Christian Legal Society v. Martinez–

–the decision of the federal district court in favor of the law school

http://www.alliancealert.org/2006/20060417.pdf

–the decision of the 9th Circuit affirming the trial court’s ruling

http://www.scotusblog.com/wp-content/uploads/2009/10/08-1371_ca9.pdf

–SCOTUS WIKI’s entry on the case (lots of information and material)

http://www.scotuswiki.com/index.php?title=Christian_Legal_Society_v._Martinez

2. Archbishop Donald Wuerl’s talk entitled “Religious Freedom and Marriage”

3. Washington D.C.’s marriage equality and nondiscrimination law and related material

http://www.dccouncil.washington.dc.us/lims/legislation.aspx?LegNo=B18-0482&Description=RELIGIOUS-FREEDOM-AND-CIVIL-MARRIAGE-EQUALITY-AMENDMENT-ACT-OF-2009.&ID=23204

http://www.dccouncil.washington.dc.us/images/00001/20100409103713.pdf

4. Title VII of the Civil Rights Act of 1964

http://www.eeoc.gov/laws/statutes/titlevii.cfm

5. McClure v. The Salvation Army (the first federal appeals court decision to recognize a “ministerial exception” to Title VII)

http://scholar.google.com/scholar_case?case=7674766003352112619&hl=en&as_sdt=2&as_vis=1&oi=scholarr

6. Part 2 of this video series

http://www.youtube.com/watch?v=3GHVxMDRx6o

Duration : 0:10:29

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