The Fairness Doctrine, once a fundamental policy in the United States media landscape, mandated broadcasters to present controversial issues of public importance in a manner that was honest, equitable, and balanced. Introduced by the Federal Communications Commission (FCC) in 1949, it played a critical role in ensuring diverse viewpoints were aired on public broadcast platforms. Although the doctrine is no longer in force, can we use it in today’s online media environment to enforce pluralism online?

The Federal Communications Commission (FCC), established by the Communications Act of 1934, was responsible for overseeing and licensing radio and television stations. The Fairness Doctrine emerged from a 1949 FCC report, which articulated the broadcaster’s obligation to cover issues of public importance and to do so fairly by presenting contrasting viewpoints.

The Red Lion Broadcasting Co. v. FCC case, decided by the United States Supreme Court in 1969, is a seminal case that examined the regulation of broadcasting and the extent of First Amendment rights in the context of radio and television. This case affirmed the FCC’s authority to enforce the Fairness Doctrine, a policy requiring broadcasters to present a balance of views on issues of public importance, effectively shaping the landscape of broadcast regulation.

Red Lion Broadcasting Company operated a Pennsylvania radio station that aired a program where journalist Fred J. Cook was criticized. Cook contended that the broadcast was a personal attack against him and that he was entitled to free airtime to respond, based on the Fairness Doctrine of the FCC. Red Lion challenged the doctrine’s constitutionality, arguing that it infringed on the broadcaster’s First Amendment rights.

The Supreme Court, in a unanimous decision, upheld the constitutionality of the Fairness Doctrine, asserting that the public interest was the paramount concern in broadcast regulation. The Court reasoned that because the broadcast spectrum is limited and not all who wish to broadcast can be accommodated, the government is entitled to impose certain conditions on licensees in the interest of the public.

Justice White, delivering the opinion of the Court, emphasized that the scarcity of broadcast frequencies warranted a more interventionist regulatory approach than for other communication forms like newspapers, recognized broadcasters as licensees, not owners, of the public airwaves thereby obligated to serve the public interest, and underscored that the First Amendment rights of viewers and listeners were as crucial as those of the broadcasters, positing that the Fairness Doctrine enhanced the “vigorous debate” the First Amendment aims to protect.

The Red Lion decision solidified the FCC’s authority to regulate broadcast content to ensure diversity of viewpoints. It distinguished the broadcasting medium from other forms of media due to the unique characteristic of spectrum scarcity. The ruling also reinforced the idea that the airwaves are a public good, and that private entities, when licensed to use this public property, accept certain obligations.

The decision had a far-reaching impact on broadcast journalism, politics, and the discussion of public affairs on radio and television. Broadcasters were compelled to cover controversial issues of public importance and to provide reasonable opportunity for the presentation of contrasting viewpoints.

The Fairness Doctrine remained in force for several years after the Red Lion case, with broadcasters regularly providing time for opposing views on contentious issues. However, the FCC began to reconsider the doctrine in the mid-1980s amid growing concerns that it actually stifled rather than facilitated the presentation of controversial issues. Critics argued that the obligation to present multiple perspectives dissuaded broadcasters from covering controversial topics to avoid the burdens of compliance.

In 1987, the FCC abolished the Fairness Doctrine, concluding that it was no longer in the public interest and that it may have been violating the First Amendment rights of broadcasters. This decision was not a repudiation of the Red Lion ruling; rather, it was a recognition that the circumstances that originally justified the Fairness Doctrine—particularly spectrum scarcity—had changed, especially with the advent of cable television and other new media technologies.

With the Fairness Doctrine no longer in effect, broadcasters are not obligated to provide balanced coverage of issues, paving the way for more opinion-based and partisan content. This shift has contributed to the rise of media outlets that align with specific political or ideological viewpoints, reinforcing echo chambers where audiences are exposed primarily to perspectives that echo their own beliefs. This trend is particularly visible in cable news and talk radio, where content often leans heavily towards either conservative or liberal viewpoints, depending on the outlet.

The absence of the Fairness Doctrine also coincides with a transformation in the media landscape brought about by the internet and social media. Digital platforms, which are not regulated under the same principles as traditional broadcasters, have become dominant sources of news and information. They present a new set of challenges, such as the spread of misinformation and the difficulty of enforcing content moderation policies that ensure a balance of viewpoints.

While there have been calls for the reinstatement of the Fairness Doctrine to combat misinformation and encourage a diversity of viewpoints, this suggestion faces significant opposition. Critics argue that such a move could infringe upon the First Amendment rights to free speech and free press, and that it would be challenging to implement in today’s diverse and fragmented media environment. The freedom for broadcasters to present content without the obligation of balance allows for a wide range of voices and perspectives. However, it also raises concerns about the polarization of public discourse and the responsibility of media outlets in fostering a well-informed public.

The Red Lion case still stands as a key precedent regarding the regulation of broadcasting and the First Amendment. It encapsulates a period in American history when the government took an active role in ensuring that the broadcast media served as a forum for diverse views on important issues. While the Fairness Doctrine is no longer enforced, the principles upheld by the Red Lion decision continue to influence debates about media regulation. In essence, the Red Lion case is a landmark moment in the history of broadcast law and policy. It reflects the Court’s attempt to navigate the complex relationship between government oversight, the rights of broadcasters, and the needs of the public in the context of a dynamic and ever-changing media landscape. As new platforms and technologies emerge, the tension between free speech and the public interest remains a pivotal issue. The case also contributes to ongoing discussions about the role of government in regulating rapidly evolving communication mediums and the responsibility of those who control these mediums to the public.

The principles underlying the Red Lion case can provide a framework for understanding how similar issues of fairness, public interest, and access might be navigated in the digital realm. The fundamental premise of the Red Lion case, centered on the scarcity of the broadcast spectrum, contrasts with the abundance of communication channels on the internet. However, this abundance doesn’t negate the fact that attention is a finite resource online. The dominance of certain platforms could be seen as creating a form of scarcity in visibility and reach, raising questions about the need for regulation to ensure diverse viewpoints. Additionally, the Supreme Court in Red Lion recognized the airwaves as a public good, a concept that resonates with the role of the internet, especially social media platforms, as the modern public square. This comparison fuels debates on whether these platforms, despite being privately owned, should be treated as public forums with obligations to ensure free speech.

Moreover, the Red Lion decision’s approach to balancing broadcaster rights with public interest mirrors ongoing debates about the role of tech companies in content moderation versus the need to protect free expression online and prevent censorship. While the Fairness Doctrine, specific to broadcast media, isn’t directly applicable to the internet, its principles evoke questions about the obligations of platforms in ensuring that algorithmic decisions do not unduly favor one viewpoint over another, akin to the requirements the doctrine imposed on broadcasters.

While the Red Lion case dealt with the broadcast era’s specific legal and technological context, its underlying principles continue to provoke thought in the age of digital media. The notion of a fair and balanced presentation of ideas, the concept of media platforms as a public trust, and the responsibilities of those who control key information channels are all highly relevant to today’s digital landscape. How these ideas are interpreted and enforced with respect to online platforms will likely be a central issue in the continued evolution of media law and regulation.

János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. He has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”