Thread by @bskorup

When people refer to the Fairness Doctrine, they're typically referring to a constellation of FCC-created broadcast content rules & policies—including the Fairness Doctrine proper, Zapple Doctrine, Mayflower Doctrine, equal time rule, anti-slanting rule, & personal attack rule.

https://twitter.com/Popehat/status/1352650988155359232

There are differences between them but in the heyday of FCC content regulations, 1940s to 1970s, activists, regulators, and politicians who wanted to shut down programming cited multiple rules because the rules overlapped and the effect was the same—get programming off the air.

The Fairness Doctrine was defanged in 1987 & formally eliminated in 2011 but aspects of content regulation remain (children's programming, indecency, anti-slanting rule). FCC content regulations date back to the late 1920s & the predecessor agency, the Federal Radio Commission.

The 1927 Radio Act and 1934 Communications Act included an anti-censorship statute (still codified) for the FRC and FCC (47 USC § 326) re: broadcast licensees. This was ignored by the FRC, FCC, courts, and political actors from the start.

Louis Caldwell, first GC of the FRC, said the agency started requiring content commitments before assigning broadcast licenses because content was the only way to distinguish between applicants. From there the content regulations (disguised as voluntary commitments) accumulated.

Off the top of my head, in the 1930s to 1950s, licenses were withheld or challenged (& occasionally revoked) for programming content from socialists, left-wing unions, fundamentalist churches, foreign language, airtime "lessors," quack medical doctors, & right-wing talkers.

Censorship and challenges ramped up after 1949 with the creation of the Fairness Doctrine, which had vague and easy to manipulate requirements: licensees must provide "reasonable time" to issues of public importance and make their stations available to "contrasting viewpoints."

As @PMatzko has documented, after the close 1960 election and punishing treatment by conservative talk radio, the Kennedy and LBJ administrations made silencing radio critics a priority. DNC-affiliated groups flooded radio stations and FCC with complaints and demands for airtime.

Defenders of the Fairness Doctrine & other FCC content regs point out that few stations lost licenses. It's true but irrelevant. Everyone knew the process (threat of lawsuits & FCC review) was expensive punishment, hence the tens of thousands of effective, coordinated complaints.

In the Supreme Court's 1943 NBC v. US case, endorsed also in the 1969 Red Lion case, the Court held that FCC's broadcast content regulations and content-based license revocations are constitutional and not a violation of the First Amendment due to the scarcity of radio spectrum.

The Court's NBC v. US decision (never overruled), gives the FCC broadcast censorship powers: "[T]he [Communications] Act does not restrict the Commission merely to supervision of the traffic. It puts upon the Commission the burden of determining the composition of that traffic."

These decisions omit that "broadcast license scarcity" is manufactured by the FCC. The logic and constitutional analysis in NBC and Red Lion is confusing and dubious. As one law professor put it in 2005, "No one besides the Supreme Court actually believes the scarcity rationale."

Though conservatives and churches occasionally cited FCC content regulations (like the Fairness Doctrine) to shut down programming or gain airtime, the rules were used much more effectively by FCC regulators, left-wing nonprofits, large corporations, and DNC-affiliated groups.

The Fairness Doctrine strengthened center-left organizations, churches, corporations, & politicians at the expense of right-of-center speakers & churches & left-wing groups. That's why after FCC repeal in 1987 congressional Dems briefly shutdown the gov't trying to reinstate it.