The Supreme Court yesterday let stand a ruling that the government cannot use the so-called fairness doctrine to compel broadcasters to air criticisms of commercials they carry advertising everyday products.
Under the 30-year-old doctrine, a broadcaster who airs arguments on one side of a controversial issue of public importance must give an opposing side a reasonable opportunity to present its views.
The U.S. Court of Appeals for the District of Columbia ruled last November that the First Amendment to the Constitution and the Communications Act of 1934 prohibit the Federal Communications Commission from applying the fairness doctrine to advertisements for everyday products.
The FCC regulates television, as well as radio, interstate telephone rates and satellite communications.
In 1967, during the Johnson administration, the communications commission applied the doctrine to cigarette commercials, arguing that smoking entails unique health considerations that necessitated anti-smoking commerciasl.
Later, over the opposition of broadcasters, Congress banned cigarette ads from the airwaves.
In 1971, acting on a case brought by environmental groups, the appeals court held the fairness doctrine as it then stood, also could be applied to commercials for leaded gasoline and high-powered automobiles because they were environmental hazards.
The commission resisted expanding application of the doctrine, however, and instead of launched a three-year proceedings to determine if it could and should devise a workable rule "for distinguishing various categories of commercials, some of which would give rise to fairness or other public interest duties and some of which would not."
In 1974, the FCC flately concluded that it had been wrong ever to applied the doctrine to product commercials because they "make no meaningful contribution toward informing the public on any side" of a "controversial issue of public importance." Applying the doctrine to such commercials "would, at best, provide the public with only one side of a public controversy," the FCC said.
In addition, the agency said that to "stretch the fairness doctrine in an artificial way" would not serve the public interest because it would divert broadcasters' attention "from their public trustee responsibilities in aiding the development of an informal opinion."
The agency found its new policy to be consistent with the First Amendment, which bans laws that abridge freedom of speech or of the press, and the communications act, which obligates broadcasters "to afford resonable opportunity for the discussion of conflicting views on issues of public importance."
The appeals court agreed last November, rejecting appeals by the National Citizens Committee for Broadcasting (NCCB), a nonprofit watchdog group, and former FCC general counsel, Henry Geller. Geller, who acted as an individual in the appeal is assistant secretary of Commerce for telecommunications policy.
The NCCB told the Supreme Court that its decisions extending First Amendment protection to disclosure of prices and other straightforward commercial speech "completely undermined" the FCC's exemption of product commercials from the doctrine.
The NCCB relied mainly on a 1976 decision in which the court, in extending protection to disclosure of prices of prescription drugs, said that such information, in a free enterprise system, is "indispensable" to "the formation of intelligent opinion as to how that system ought to be regulated or altered."
"Surely, if product ad information leads to the formation of intelligent opinions relating to the regulation or alternation of aspects of our free enterprice system - for example, opinions about the desirability of products like cigarettes, saccharin, or phosphate detergents which are involved in controversial and publicly important disputes - then the advertisment's presentation of the product's benefits must be said to be 'meaningful discussion' of those controversies," the NCCB said.
American Broadcasting Companies, Inc., petitioning the Supreme Court to let the appeleate ruling stand, said that the 1976 decision does not require the commission "to treat ordinary product advertisements as equivalent to actual discussions of public issues."
Broadcasters should be left free "to devote their full attention to those issues that flow from the needs of the communities they serve," ABC argued.