The Fairness Doctrine Is Dead and Living in Israel

By Schejter, Amit M. | Federal Communications Law Journal, March 1999 | Go to article overview

The Fairness Doctrine Is Dead and Living in Israel


Schejter, Amit M., Federal Communications Law Journal


I. INTRODUCTION

Although the fairness doctrine has been eliminated in the United States as of 1987,(1) the idea of regulating speech concerning issues of public disagreement continues to stir a lively academic and legal debate.

However, in Israel, the reason for this debate emanates from the fact that not only has the doctrine not been eliminated, it has in fact taken on a life of its own. Still, it does not always take into account where the doctrine has come from, what it really meant, and how it is suited to the Israeli legal logic. Following a series of legal decisions and administrative acts, the doctrine has been redesigned in a manner that does not resemble its North American origins, although it still carries its name.

This regulatory regime, imported from one legal system and implanted in another, continues to develop a new nature in Israel and is in itself an interesting cross-cultural phenomenon. It is even more intriguing because its original adoption was formed from case law, and only later has it taken an administrative form. Still, case law determines the doctrine's nature, redefining it, and questioning the ability to stretch it beyond its existing boundaries.

Interestingly enough, had the development of the doctrine been tested in a court of law in its country of origin, it could have been found unconstitutional, as the constitutional safeguards in both societies are different. In that sense, the fairness doctrine as implanted in the Israeli system is like a sandwich from McDonald's--it bears the same name, looks, and tastes like the original, but the meat is local and so is the cook. Thus, the sandwich claims to be of similar standards to its foreign counterpart, but its ingredients are local. Its popularity stems much from its American origin, even though other types of imports from systems of less glamour may better fit the local culture.

This Article describes the fairness doctrine and how it is different from impartiality, another form of speech regulation. Further, this Article briefly paints the structure of Israeli media law, the new environment in which the doctrine has been implanted. Finally, the unique character of the Israeli fairness doctrine and its American roots, planted in its continental ground, is analyzed, and its current situation is critiqued.

II. DEFINING FAIRNESS

In order to be able to deduce whether a particular legal term has been adopted by a foreign legal system, the original setting of the term must be analyzed. The fairness doctrine, developed and applied in the United States between 1934 and 1987, is a well-defined legal and policy term. It is based on a particular logic: The U.S. Constitution safeguards freedom of expression and of the press.(2) Still, due to the fact that broadcasting is a medium of expression that only a small number of license holders may use due to technical scarcity, it may be regulated. At the same time, a unique feature of the U.S. system has always been that once a license to broadcast is awarded, the license holder may use the airwaves to promote his or her own opinion. The doctrine, thus, was created in order to make sure that the highest bidders were not the only parties able to communicate their views on public issues.(3) The doctrine originally consisted of two types of regulations imposed upon broadcast licensees: first, the regulation on broadcasters to focus on issues concerning political speech, that is the type of speech that deals with the day-to-day issues in public disagreement;(4) second, the regulation of personal attacks and the means by which one can remedy an unflattering portrayal by the broadcast media.

A. Speech in Instances of Disagreement

1. The American Fairness Doctrine

Different doctrines of regulating the issue of speech in instances of disagreement have developed for a number of reasons in different legal systems. The fairness doctrine was the unique approach adopted to regulate political speech within the American system, characterized by a large number of commercial broadcasters. …

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