Supreme Court Looks Again
Only five years later, the Court (somewhat) reversed itself. In 1974, SCOTU Chief Justice Warren Burger (writing for a unanimous court in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241) said that in the case of newspapers, a government "right of reply" requirement "inescapably dampens the vigor and limits the variety of public debate." In this case, Florida law had required newspapers to provide a form of equal access when a paper endorsed a political candidate in an editorial.
There are clear differences in the two cases, beyond the simple matter than radio stations are granted government licenses and newspapers are not. The Florida statute (1913) was far more prospective than the FCC policy. From the Court decision. However, both decisions discuss the relative scarcity of news outlets.
Florida Statute 104.38 (1973) [is] a "right of reply" statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor...
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.[note 24] The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.
In 1982, Meredith Corp (WTVH in Syracuse, NY) ran a series of editorials endorsing the Nine Mile II nuclear power plant. Syracuse Peace Council filed a fairness doctrine complaint with the FCC, asserting that WTVH "had failed to give viewers conflicting perspectives on the plant and had thereby violated the second of the fairness doctrine's two requirements."
The FCC agreed; Meredith filed for reconsideration, arguing that the fairness doctrine was unconstitutional. Before ruling on the appeal, in 1985 the FCC, under Chair Mark Fowler, published a "Fairness Report." This report declared that the fairness doctrine was having a "chilling effect" on speech and thus could be a violation of the First Amendment.
Moreover, the report asserted that scarcity was no longer an issue because of cable television. Fowler was a former broadcast industry attorney who argued that television stations have no public interest role. Instead, he believed: "The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants."
Almost concurrently, in Telecommunications Research & Action Center (TRAC) v. FCC (801 F.2d 501, 1986) the D.C. district court ruled that the Fairness Doctrine was not codified as part of the 1959 Amendment to the 1937 Communications Act. Instead, Justices Robert Bork and Antonin Scalia ruled that the doctrine was not "mandated by statute."
FCC Repeals Rule
In 1987, the FCC repealed the Fairness Doctrine, "with the exception of the personal attack and political editorializing rules."
In 1989, the DC District Court made the final ruling in Syracuse Peace Council v FCC. The ruling quoted the "Fairness Report" and concluded that the Fairness Doctrine was not in the public interest:
On the basis of the voluminous factual record compiled in this proceeding, our experience in administering the doctrine and our general expertise in broadcast regulation, we no longer believe that the fairness doctrine, as a matter of policy, serves the public interest...
We conclude that the FCC's decision that the fairness doctrine no longer served the public interest was neither arbitrary, capricious nor an abuse of discretion, and are convinced that it would have acted on that finding to terminate the doctrine even in the absence of its belief that the doctrine was no longer constitutional. Accordingly we uphold the Commission without reaching the constitutional issues.
In June 1987, Congress had attempted to codify the Fairness Doctrine, but the bill was vetoed by President Reagan. In 1991, President George H.W. Bush followed suit with another veto.
In the 109th Congress (2005-2007), Rep. Maurice Hinchey (D-NY) introduced H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, to "to restore the Fairness Doctrine." Although the bill had 16 co-sponsors, it went no where.