the unfair fairness doctrine

I am one of these people who will do a lot of research to win an argument. Like sometimes a lot of research. Actually of course with Google, Google Books and Google News’ archive search, research can pretty easy. It’s surprising how many people won’t do any research and will just rely on ideology to support their opinion. Anyway so recently I got into a Facebook debate about the Fairness Doctrine, the now-defunct rule that broadcasters “had an obligation to afford reasonable opportunity for discussion of contrasting points of view on controversial issues of public importance.” I argued this was a violation of the First Amendment and opened the door for government manipulation and intimidation of the press. Others challenged my “slippery slope” argument and said that didn’t happen during the 38 years the doctrine was in place. So I decided to do a little research … and was actually shocked at how bad the Fairness Doctrine was, in practice.

For starters, press critics were able to use the “Fairness Doctrine” to attack investigative journalism. CBS, for example, was targeted for its May 1968 broadcast “Hunger in America,” which critics said was deliberately slanted to exaggerate the hunger problem. (Loosely based on a Harvard study describing how pockets of poverty could exist close to great wealth, the documentary was mostly filmed in San Antonio and opened with Charles Kuralt’s narration over a emaciated premature baby: “Hunger is easy to recognize when it looks like this. This baby is dying of starvation. He was an American. Now he is dead.”). The network also was the subject of an FCC inquiry for its 1971 report called “The Selling of the Pentagon” on how the military had stage-managed the war in Vietnam and used public information techniques to promote the Cold War and military and and political intervention overseas.

Those criticisms weren’t upheld — which isn’t to say they didn’t have a chilling effect on investigative journalism. As Corydon Dunham, general counsel for the National Association of Broadcasters, pointed out in 1971, a simple letter of complaint to the FCC could prompt the agency to call on a network to submit an exhaustive reply. The FCC then takes it upon itself to decide the legal merits of the journalistic report. “News reports should not be subject to editing by the government,” Dunham said.

(And even if the FCC cleared a report, the aggrieved party could always challenge that decision in federal court. For example, in 1979, after NBC aired a three-part series by Brian Ross on a lack of safety in the highway trucking industry, Yellow Freight filed a complaint with the FCC that the agency required the network to answer. Both parties filed about 250 pages of written material supporting their case, and the FCC unanimously sided with NBC. But Yellow Freight appealed to the federal courts… two years later, on Aug. 10, 1981, the 10th Circuit ruled in NBC’s favor. You don’t have to be a journalism major to understand that having to spend two years defending your investigative report would make broadcasters shy of taking on the entrenched interests!

Another example: As Congress debated pension reform in 1972, NBC aired an hourlong documentary titled “Pensions: The Broken Promise” detailing workers who had lost their pensions due to mismanagement. As Santa Clara University communications professor Chad Raphael recounts in his 2005 book “Investigated Reporting: Muckrakers, Regulators, and the Struggle over Television Documentary,” the report “sparked little public discussion of retirement plans but ended up igniting a major battle over the fairness doctrine.” The conservative media watchdog Accuracy in Media filed a complaint against NBC, claiming the report had painted a distorted picture of the nation’s private pension system. On the same day the report won a Peabody award, the FCC issued a staff report charging NBC had failed to provide a “reasonable opportunity” for positive views on pensions. “If this were a rule, it would mean that television news must never examine a problem in American life without first ascertaining that we had piled up enough points on the other side,” NBC Executive Producer Reuven Frank fumed. NBC took the case to court and eventually the FCC withdrew the complaint, claiming that the issue had been “mooted” because Congress had passed the pension reform legislation.

Other news stories were the subjects of FCC complaints. After the 1968 Democratic Convention, the FCC ordered the networks to respond to hundreds of complaints who claimed that their coverage “failed to present the views of Chicago officials and sided with demonstrators’ charges of police brutality.” CBS also had to answer a complaint from a conservative group in 1972 that its coverage of national security “unfairly favored dovish positions.”

But it wasn’t just news programs that could be the subjects of complaints. NBC faced a complaint for a year that its 1978 fictionalized miniseries on the Holocaust violated the fairness doctrine. A man named Frederich Berg said WNBC-TV failed to present the viewpoint that there “did not exist a German policy of extermination” during World War II. [!!!!] The FCC ruled that WNBC wasn’t “unreasonable in deciding the series made no statements on an issue of public importance” given that the events happened 30 years ago; Berg appealed this decision to a federal court.

Even advertising could be subject to the Fairness Doctrine. In 1967 the FCC ruled that cigarette ads were subject to the fairness doctrine and mandated the networks to run roughly one antismoking PSA for every three tobacco ads. This may sound like a good thing — but it opened up a real can of worms. Friends of the Earth complained that ads for high-powered cars and high-powered gasoline were as much a problem as cigarettes. Initially the FCC disagreed but the agency was overruled by the U.S. District Court of Appeals in 1971, dumping the mess back in the agency’s lap. Clearly if ads for gas-guzzling cars can the subject of a fairness doctrine complaint, nearly anything could be! As Clay Whitehead, head of the White House Office of Telecommunications Policy, said in 1972: “the fairness doctrine, as it has come to be administered, is so confusing, so chaotic and so highly detailed and complex that it really is not a doctrine at all. Nobody knows what it means, no one knows how it would apply in various cases. I think it is safe to say it intimidates the broadcaster who is constantly worried what Washington is going to do to him if he opens his mouth about anything or puts anyone on his television station.”

Indeed, in 1974 the three TV networks wouldn’t air commercials by Phillips Petroleum giving the company’s position on the free enterprise system, taxes and profits, because they feared they’d be subject to a fairness doctrine complaint. They were wise — the FCC ruled in 1977 that Washington Post-owned WTOP violated the Fairness Doctrine by running commercials by Texaco touting the company’s efficiency and economy. The station had to give valuable airtime to a nonprofit group, the Energy Action Committee, which ran 30 ads attacking the oil industry. (One ad depicted the industry as a mugger in a dark alley). As columnist James J. Kilpatrick wrote at the time, “broadcasters now must function as keen censors of ideas that might be concealed in an apparently innocent commercial. No controversial ideas permitted here!”

Similarly, in 1972, ABC refused to air a Dick Cavett interview with radicals Abbie Hoffman, Jerry Rubin, Tom Hayden and Rennie Davis “based on the Federal Communication Commission’s fairness doctrine, which requires broadcasters to air contrasting views on controversial issues of public importance.” An ABC spokesman told the AP at the time the program “lacked sufficient ‘balance'” in discussing the “the capitalist system, the administration, our system of justice and the courts and (U.S.) foreign policy with regard to Vietnam and Cambodia.”