Back in the day when I wore two hats — one as an attorney and the other as chair of a political party — I was often asked about the Equal Time Rule and the Fairness Doctrine, usually by a candidate who believed he or she had been unjustly maligned on talk radio or the TV news.
Now that we’re heading into the most intense period of a campaign season that will be dominated by personal attacks and mistruths — OK, bald-faced lies — I thought I’d offer a primer on this aspect of the law.
Let’s begin with a little history. Both the Equal Time Rule and the Fairness Doctrine were enacted at the dawn of the broadcast media age to allay fears that station owners could exert vast influence over the outcome of elections and policy debates unless they were required to give equal time to opposing candidates and views.
The Equal Time Rule, which dates back to the Radio Act of 1927, requires radio and TV stations to treat all legally qualified political candidates equally as it relates to both paid and free airtime. That means if a station sells time to Candidate A it must also sell time to Candidate B at a similar rate.
The rule also applies to some programs paid for by the stations in which candidates may appear without purchasing the airtime. Four types of programming are exempt from the Rule: documentaries, news interviews, scheduled newscasts and on-the-spot news events. Here’s an example of how it works: if Candidate A says Candidate B kicks dogs and steals candy from babies in a paid ad, the station must sell Candidate B airtime to respond. If Candidate A makes the same claim during the 6 p.m. news, the station is under no obligation to allow Candidate B to respond.
And, in case you’re wondering, Anderson Cooper, Sean Hannity, Rachel Maddow, etc. aren’t required to give equal time to opposing candidates because the FCC has ruled that their shows are news programs.
The Federal Communications Commission created the Fairness Doctrine in 1949. The doctrine required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was honest, equitable and balanced. Broadcasters detested the doctrine from Day 1 and it came under legal attack soon after it was handed down. The FCC rescinded it in 1987 because instead of promoting public discussion of controversial topics it was a “chilling” debate. As a result of the elimination of the Fairness Doctrine, broadcasters are permitted to say anything they want about any topic they want without fear of losing their incredibly valuable licenses.
I’ve been asked a number of times how Congress and the FCC managed to enact laws and rules that, on their face, interfered with the freedom of the press provisions of the First Amendment. The rationale is simple: the Courts have held that the government has the power to regulate broadcasters because they use the public airwaves.
We can debate whether the relaxation of the regulations has enhanced or diminished public discourse in the U.S. or whether they matter in an age when every American has access to multiple sources of news, but one thing is certain: The era of media regulation is over.