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Saturday, January 6, 2024

Asexuality

From Wikipedia, the free encyclopedia
 

Asexuality is distinct from abstention from sexual activity and from celibacy, which are behavioral and generally motivated by factors such as an individual's personal, social, or religious beliefs. Sexual orientation, unlike sexual behavior, is believed to be "enduring". Some asexual people engage in sexual activity despite lacking sexual attraction or a desire for sex, for a number of reasons, such as a desire to physically pleasure themselves or romantic partners, or a desire to have children.

Acceptance of asexuality as a sexual orientation and field of scientific research is still relatively new, as a growing body of research from both sociological and psychological perspectives has begun to develop. While some researchers assert that asexuality is a sexual orientation, other researchers disagree. Asexual individuals may represent about one percent of the population.

Various asexual communities have started to form since the impact of the Internet and social media in the mid-1990s. The most prolific and well-known of these communities is the Asexual Visibility and Education Network, which was founded in 2001 by David Jay.

Definition, identity and relationships

Because there is significant variation among those who identify as asexual, the term asexuality can encompass broad definitions. Researchers generally define asexuality as the lack of sexual attraction or the lack of interest in sexual activity, though specific definitions vary—the term may be used to refer to individuals with low or absent sexual behavior or exclusively romantic non-sexual partnerships in addition to low or absent sexual desire or attraction.

The Asexual Visibility and Education Network (AVEN), an online forum dedicated to asexuality, defines an asexual as "someone who does not experience sexual attraction", as well as adding that asexuality "at its core" is "just a word that people use to help figure themselves out", and encourages people to use the term asexual to define themselves "as long as it makes sense to do so". Asexuality is often abbreviated as ace, a phonetic shortening of asexual, and the community as a whole is likewise referred to as the ace community.

Relationships

Despite lacking sexual attraction, some asexuals might engage in purely romantic relationships, while others may not. Some who identify as asexual report that they experience sexual attraction, though lack the inclination to act on it, citing no desire to engage in sexual activity—some asexuals also lack the desire to engage in non-sexual physical activity such as cuddling or hand-holding, while others choose to do so. Asexual people may seek relationships without romantic or sexual activity, known as "queerplatonic relationships". A squish is a term used by the asexual community to describe a non-sexual crush.

Certain asexuals may participate in sexual activity out of curiosity. Some may also masturbate as a form of solitary release, while others may not feel a need to do so. The desire for masturbation or other sexual activity is often referred to as sex drive by asexuals, who disassociate it from sexual attraction and being asexual; asexuals who masturbate generally consider it to be a normal product of the human body rather than a sign of latent sexuality, and others do not find it pleasurable. Some asexual men are unable to get an erection and are unable to attempt penetration. Asexuals also differ in their views on performing sexual acts — some are indifferent and may engage in sexual activity for the benefit of a romantic partner, while others are more strongly averse to the idea, though they are not typically against sex as a whole.

Many who identify as asexual may identify with diverse gender identities or classifications of romantic orientation. These are often integrated with a person's asexual identity, and asexuals may still identify as heterosexual, lesbian, gay, or bisexual regarding romantic or emotional aspects of sexual orientation or sexual identity in addition to identifying as asexual. The romantic aspects of sexual orientations may also be indicated by a variety of romantic identities, including biromantic, heteroromantic, homoromantic, or panromantic, and those who do not experience romantic attraction may identify as aromantic. This split between romantic and sexual orientation is commonly explained as the split attraction model, which states that romantic and sexual attraction are not strictly linked for all people. Individuals who are both aromantic and asexual are sometimes known as "aro-ace" or "aroace".

Gray asexuality

The term "gray asexuality" refers to the spectrum between asexuality and non-asexuality (also referred to as allosexuality). Individuals who identify as gray asexual may occasionally experience sexual attraction, or only experience sexual attraction as a secondary component once a reasonably stable or large emotional connection has been formed with the target, known as demisexuality.

Research

Prevalence

Kinsey scale of sexual responses, indicating degrees of sexual orientation. The original scale included a designation of "X", indicating a lack of sexual behavior.

Most scholars agree that asexuality is rare, constituting 1% or less of the population. Asexuality is not a new aspect of human sexuality, but it is relatively new to public discourse. In comparison to other sexualities, asexuality has received little attention from the scientific community, with quantitative information pertaining to the prevalence of asexuality low in numbers. S. E. Smith of The Guardian is not sure asexuality has actually increased, rather leaning towards the belief that it is simply more visible. Alfred Kinsey rated individuals from 0 to 6 according to their sexual orientation from heterosexual to homosexual, known as the Kinsey scale. He also included a category he called "X" for individuals with "no socio-sexual contacts or reactions." Although, in modern times, this is categorized as representing asexuality, scholar Justin J. Lehmiller stated, "the Kinsey X classification emphasized a lack of sexual behavior, whereas the modern definition of asexuality emphasizes a lack of sexual attraction. As such, the Kinsey Scale may not be sufficient for accurate classification of asexuality." Kinsey labeled 1.5% of the adult male population as X. In his second book, Sexual Behavior in the Human Female, he reported this breakdown of individuals who are X: unmarried females = 14–19%, married females = 1–3%, previously married females = 5–8%, unmarried males = 3–4%, married males = 0%, and previously married males = 1–2%.

Further empirical data about an asexual demographic appeared in 1994 when a research team in the United Kingdom carried out a comprehensive survey of 18,876 British residents, spurred by the need for sexual information in the wake of the AIDS pandemic. The survey included a question on sexual attraction, to which 1.05% of the respondents replied that they had "never felt sexually attracted to anyone at all". The study of this phenomenon was continued by Canadian sexuality researcher Anthony Bogaert in 2004, who explored the asexual demographic in a series of studies. Bogaert's research indicated that 1% of the British population does not experience sexual attraction, but he believed that the 1% figure was not an accurate reflection of the likely much larger percentage of the population that could be identified as asexual, noting that 30% of people contacted for the initial survey chose not to participate in the survey. Since less sexually experienced people are more likely to refuse to participate in studies about sexuality, and asexuals tend to be less sexually experienced than allosexuals, it is likely that asexuals were under-represented in the responding participants. The same study found the number of homosexuals and bisexuals combined to be about 1.1% of the population, which is much smaller than other studies indicate.

Contrasting Bogaert's 1% figure, a study by Aicken et al., published in 2013, suggests that, based on Natsal-2 data from 2000 to 2001, the prevalence of asexuality in Britain is only 0.4% for the age range 16–44. This percentage indicates a decrease from the 0.9% figure determined from the Natsal-1 data collected on the same age-range a decade earlier. A 2015 analysis by Bogaert also found a similar decline between the Natsal-1 and Natsal-2 data. Aicken, Mercer, and Cassell found some evidence of ethnic differences among respondents who had not experienced sexual attraction; both men and women of Indian and Pakistani origin had a higher likelihood of reporting a lack of sexual attraction.

In a survey conducted by YouGov in 2015, 1,632 British adults were asked to try to place themselves on the Kinsey scale. 1% of participants answered "No sexuality". The breakdown of participants was 0% men, 2% women; 1% across all age ranges.

Sexual orientation, mental health and cause

There is significant debate over whether or not asexuality is a sexual orientation. It has been compared and equated with hypoactive sexual desire disorder (HSDD), a diagnosis which was in the DSM-4, in that both imply a general lack of sexual attraction to anyone; HSDD has been used to medicalize asexuality, but asexuality is generally not considered a disorder or a sexual dysfunction (such as anorgasmia, anhedonia, etc.), because it does not necessarily define someone as having a medical problem or problems relating to others socially. Unlike people with HSDD, asexual people normally do not experience "marked distress" and "interpersonal difficulty" concerning feelings about their sexuality, or generally a lack of sexual arousal; asexuality is considered the lack or absence of sexual attraction as a life-enduring characteristic. One study found that, compared to HSDD subjects, asexuals reported lower levels of sexual desire, sexual experience, sex-related distress and depressive symptoms. Researchers Richards and Barker report that asexuals do not have disproportionate rates of alexithymia, depression, or personality disorders. Some people, however, may identify as asexual even if their non-sexual state is explained by one or more of the aforementioned disorders.

Since the release of the DSM-5 in 2013 which split HSDD into diagnoses for female sexual arousal disorder and male hypoactive sexual desire disorder, both disorders have been criticised for similar issues to HSDD. Although the DSM-5 mentions asexuality as an exclusion criterion for these two disorders, it is necessary for individuals to self-identify as asexual to meet the differential diagnosis and this requirement has been criticised for imposing a diagnosis on people who are possibly asexual but do not yet identify as such. As of 2021, HSDD continues to be used to describe transgender women.

The first study that gave empirical data about asexuals was published in 1983 by Paula Nurius, concerning the relationship between sexual orientation and mental health. 689 subjects—most of whom were students at various universities in the United States taking psychology or sociology classes—were given several surveys, including four clinical well-being scales. Results showed that asexuals were more likely to have low self-esteem and more likely to be depressed than members of other sexual orientations; 25.88% of heterosexuals, 26.54% bisexuals (called "ambisexuals"), 29.88% of homosexuals, and 33.57% of asexuals were reported to have problems with self-esteem. A similar trend existed for depression. Nurius did not believe that firm conclusions can be drawn from this for a variety of reasons.

In a 2013 study, Yule et al. looked into mental health variances between Caucasian heterosexuals, homosexuals, bisexuals, and asexuals. The results of 203 male and 603 female participants were included in the findings. Yule et al. found that asexual male participants were more likely to report having a mood disorder than other males, particularly in comparison to the heterosexual participants. The same was found for female asexual participants over their heterosexual counterparts; however, non-asexual, non-heterosexual females had the highest rates. Asexual participants of both sexes were more likely to have anxiety disorders than heterosexual and non-heterosexual participants, as were they more likely than heterosexual participants to report having had recent suicidal feelings. Yule et al. hypothesized that some of these differences may be due to discrimination and other societal factors.

With regard to sexual orientation categories, asexuality may be argued as not being a meaningful category to add to the continuum, and instead argued as the lack of a sexual orientation or sexuality. Other arguments propose that asexuality is the denial of one's natural sexuality, and that it is a disorder caused by shame of sexuality, anxiety or sexual abuse, sometimes basing this belief on asexuals who masturbate or occasionally engage in sexual activity simply to please a romantic partner. Within the context of sexual orientation identity politics, asexuality may pragmatically fulfill the political function of a sexual orientation identity category.

The suggestion that asexuality is a sexual dysfunction is controversial among the asexual community. Those who identify as asexual usually prefer it to be recognized as a sexual orientation. Scholars who argue that asexuality is a sexual orientation may point to the existence of different sexual preferences. They and many asexual people believe that the lack of sexual attraction is valid enough to be categorized as a sexual orientation. The researchers argue that asexuals do not choose to have no sexual desire and generally start to find out their differences in sexual behaviors around adolescence. Because of these facts coming to light, it is reasoned that asexuality is more than a behavioral choice and is not something that can be cured like a disorder. There is also analysis on whether identifying as asexual is becoming more popular.

Research on the etiology of sexual orientation when applied to asexuality has the definitional problem of sexual orientation not consistently being defined by researchers as including asexuality. While heterosexuality, homosexuality and bisexuality are usually, but not always, determined during the early years of preadolescent life, it is not known when asexuality is determined. "It is unclear whether these characteristics [viz., "lacking interest in or desire for sex"] are thought to be lifelong, or if they may be acquired."

One criterion usually taken to be defining of a sexual orientation is that it is stable over time. In a 2016 analysis in the Archives of Sexual Behavior, Brotto et al. found "only weak support" for this criterion being met among asexual individuals. An analysis of data from the National Longitudinal Study of Adolescent to Adult Health by Stephen Cranney found that, of 14 individuals who reported no sexual attraction in the study's third wave (when subjects ranged in age from 18 to 26), only 3 continued to identify in this way at the fourth wave, six years later. However, Cranney notes that asexual identification in the third wave was still significant as a predictor of asexual identification in the subsequent wave. In a subsequent commentary, Cranney stated that the interpretation of this data was complicated by the absence of any "set quantitative standard for how long a sexual desire must last before it is considered stable or intrinsic enough to be considered an orientation".

Sexual activity and sexuality

While some asexuals masturbate as a solitary form of release or have sex for the benefit of a romantic partner, others do not (see above). Fischer et al. reported that "scholars who study the physiology around asexuality suggest that people who are asexual are capable of genital arousal but may experience difficulty with so-called subjective arousal." This means that "while the body becomes aroused, subjectively – at the level of the mind and emotions – one does not experience arousal".

The Kinsey Institute sponsored another small survey on the topic in 2007, which found that self-identified asexuals "reported significantly less desire for sex with a partner, lower sexual arousability, and lower sexual excitation but did not differ consistently from non-asexuals in their sexual inhibition scores or their desire to masturbate".

A 1977 paper titled Asexual and Autoerotic Women: Two Invisible Groups, by Myra T. Johnson, is explicitly devoted to asexuality in humans. Johnson defines asexuals as those men and women "who, regardless of physical or emotional condition, actual sexual history, and marital status or ideological orientation, seem to prefer not to engage in sexual activity." She contrasts autoerotic women with asexual women: "The asexual woman ... has no sexual desires at all [but] the autoerotic woman ... recognizes such desires but prefers to satisfy them alone." Johnson's evidence is mostly letters to the editor found in women's magazines written by asexual/autoerotic women. She portrays them as invisible, "oppressed by a consensus that they are non-existent," and left behind by both the sexual revolution and the feminist movement. Johnson argued that society either ignores or denies their existence or insists they must be ascetic for religious reasons, neurotic, or asexual for political reasons.

In a study published in 1979 in volume five of Advances in the Study of Affect, as well as in another article using the same data and published in 1980 in the Journal of Personality and Social Psychology, Michael D. Storms of the University of Kansas outlined his own reimagining of the Kinsey scale. Whereas Kinsey measured sexual orientation based on a combination of actual sexual behavior and fantasizing and eroticism, Storms used only fantasizing and eroticism. Storms, however, placed hetero-eroticism and homo-eroticism on separate axes rather than at two ends of a single scale; this allows for a distinction between bisexuality (exhibiting both hetero- and homo-eroticism in degrees comparable to hetero- or homosexuals, respectively) and asexuality (exhibiting a level of homo-eroticism comparable to a heterosexual and a level of hetero-eroticism comparable to a homosexual, namely, little to none). This type of scale accounted for asexuality for the first time. Storms conjectured that many researchers following Kinsey's model could be mis-categorizing asexual subjects as bisexual, because both were simply defined by a lack of preference for gender in sexual partners.

In a 1983 study by Paula Nurius, which included 689 subjects (most of whom were students at various universities in the United States taking psychology or sociology classes), the two-dimensional fantasizing and eroticism scale was used to measure sexual orientation. Based on the results, respondents were given a score ranging from 0 to 100 for hetero-eroticism and from 0 to 100 for homo-eroticism. Respondents who scored lower than 10 on both were labeled "asexual". This consisted of 5% of the males and 10% of the females. Results showed that asexuals reported much lower frequency and desired frequency of a variety of sexual activities including having multiple partners, anal sexual activities, having sexual encounters in a variety of locations, and autoerotic activities.

Feminist research

The field of asexuality studies is still emerging as a subset of the broader field of gender and sexuality studies. Notable researchers who have produced significant works in asexuality studies include KJ Cerankowski, Ela Przybylo, and CJ DeLuzio Chasin.

A 2010 paper written by KJ Cerankowski and Megan Milks, titled New Orientations: Asexuality and Its Implications for Theory and Practice, suggests that asexuality may be somewhat of a question in itself for the studies of gender and sexuality. Cerankowski and Milks have suggested that asexuality raises many more questions than it resolves, such as how a person could abstain from having sex, which is generally accepted by society to be the most basic of instincts. Their New Orientations paper states that society has deemed "[LGBT and] female sexuality as empowered or repressed. The asexual movement challenges that assumption by challenging many of the basic tenets of pro-sex feminism [in which it is] already defined as repressive or anti-sex sexualities." In addition to accepting self-identification as asexual, the Asexual Visibility and Education Network has formulated asexuality as a biologically determined orientation. This formula, if dissected scientifically and proven, would support researcher Simon LeVay's blind study of the hypothalamus in gay men, women, and straight men, which indicates that there is a biological difference between straight men and gay men.

In 2014, Cerankowski and Milks edited and published Asexualities: Feminist and Queer Perspectives, a collection of essays intended to explore the politics of asexuality from a feminist and queer perspective. It is broken into the introduction and then six parts: Theorizing Asexuality: New Orientations; The Politics of Asexuality; Visualizing Asexuality in Media Culture; Asexuality and Masculinity; Health, Disability, and Medicalization; and Reading Asexually: Asexual Literary Theory. Each part contains two to three papers on a given aspect of asexuality research. One such paper is written by Ela Przybylo, another name that is becoming common in asexual scholarly literature. Her article, with regard to the Cerankowski and Milks anthology, focuses on accounts by self-identified male asexuals, with a particular focus on the pressures men experience towards having sex in dominant Western discourse and media. Three men living in Southern Ontario, Canada, were interviewed in 2011, and Przybylo admits that the small sample-size means that her findings cannot be generalized to a greater population in terms of representation, and that they are "exploratory and provisional", especially in a field that is still lacking in theorizations. All three interviewees addressed being affected by the stereotype that men have to enjoy and want sex in order to be "real men".

Another of Przybylo's works, Asexuality and the Feminist Politics of "Not Doing It", published in 2011, takes a feminist lens to scientific writings on asexuality. Pryzyblo argues that asexuality is made possible only through the Western context of "sexual, coital, and heterosexual imperatives". She addresses earlier works by Dana Densmore, Valerie Solanas, and Breanne Fahs, who argued for "asexuality and celibacy" as radical feminist political strategies against patriarchy. While Przybylo does make some distinctions between asexuality and celibacy, she considers blurring the lines between the two to be productive for a feminist understanding of the topic. In her 2013 article, "Producing Facts: Empirical Asexuality and the Scientific Study of Sex", Przybylo distinguishes between two different stages of asexual research: that of the late 1970s to the early 1990s, which often included a very limited understanding of asexuality, and the more recent revisiting of the subject which she says began with Bogaert's 2004 study and has popularized the subject and made it more "culturally visible". In this article, Przybylo once again asserts the understanding of asexuality as a cultural phenomenon, and continues to be critical of its scientific study. Pryzblo published a book, Asexual Erotics, in 2019. In this book, she argued that asexuality poses a "paradox" in that is a sexual orientation that is defined by the absence of sexual activity entirely. She distinguishes between a sociological understanding of asexuality and a cultural understanding, which she said could include "the open mesh of possibilities, gaps, overlaps, dissonances and resonances".

CJ DeLuzio Chasin states in Reconsidering Asexuality and Its Radical Potential that academic research on asexuality "has positioned asexuality in line with essentialist discourses of sexual orientation" which is troublesome as it creates a binary between asexuals and persons who have been subjected to psychiatric intervention for disorders such as Hypoactive Sexual Desire Disorder. Chasin says that this binary implies that all asexuals experience a lifelong (hence, enduring) lack of sexual attraction, that all non-asexuals who experience a lack of sexual desire experience distress over it, and that it pathologizes asexuals who do experience such distress. As Chasin says such diagnoses as HSDD act to medicalize and govern women's sexuality, the article aims to "unpack" problematic definitions of asexuality that are harmful to both asexuals and women alike. Chasin states that asexuality has the power to challenge commonplace discourse of the naturalness of sexuality, but that the unquestioned acceptance of its current definition does not allow for this. Chasin also argues there and elsewhere in Making Sense in and of the Asexual Community: Navigating Relationships and Identities in a Context of Resistance that it is important to interrogate why someone might be distressed about low sexual desire. Chasin further argues that clinicians have an ethical obligation to avoid treating low sexual desire per se as pathological, and to discuss asexuality as a viable possibility (where relevant) with clients presenting clinically with low sexual desire.

Intersections with race and disability

Scholar Ianna Hawkins Owen writes, "Studies of race have revealed the deployment of asexuality in the dominant discourse as an ideal sexual behavior to justify both the empowerment of whites and the subordination of blacks to uphold a racialized social and political system." This is partly due to the simultaneous sexualization and de-sexualization of black women in the Mammy archetype, as well as by how society de-sexualizes certain racial minorities, as part of a bid to claim superiority by Whites. This is co-existent with the sexualization of black female bodies in the Jezebel archetype, both utilized to justify slavery and enable further control. Owen also criticizes the "...investment in constructing asexuality upon a white racial rubric (who else can claim access to being just like everyone else?)". Ben Brandley and Angela Labrador argue that asexual identity may be more accessible to white people than people of color because of how people of color are sexualized. Michael Paramo argues in an article for Aze that this can create a "cyclical perception" that the asexual community is dominated by white people which can make people of color continue to feel excluded from it.

Eunjung Kim comments on the intersections between disability or crip theory and asexuality, saying disabled people are more frequently de-sexualized. Kim compares the idea of frigid women to asexuality and analyzes its history from a queer, crip, and feminist angle. Scholar Karen Cuthbert comments on "providing the first empirically grounded discussion of this intersection of asexuality and disability (and to a lesser extent gender and 'race')." Anna Kurowicka identifies various forms of tension that emerge between the intersections of asexuality and disability, noting that asexual people may sometimes reject the notion that their asexuality is related to disability in an effort to avoid unwanted medical intervention while disabled people may reject the assumption that they are inherently asexual. Kurowicka argues that contemporary discourses should trouble the desire to separate asexuality and disability, attributing the source of the issue of negating connections between asexuality and disability to compulsory sexuality.

Bogaert's psychological work and theories

Bogaert argues that understanding asexuality is of key importance to understanding sexuality in general. For his work, Bogaert defines asexuality as "a lack of lustful inclinations/feelings directed toward others," a definition that he argues is relatively new in light of recent theory and empirical work on sexual orientation. This definition of asexuality also makes clear this distinction between behavior and desire, for both asexuality and celibacy, although Bogaert also notes that there is some evidence of reduced sexual activity for those who fit this definition. He further distinguishes between desire for others and desire for sexual stimulation, the latter of which is not always absent for those who identify as asexual, although he acknowledges that other theorists define asexuality differently and that further research needs to be done on the "complex relationship between attraction and desire". Another distinction is made between romantic and sexual attraction, and he draws on work from developmental psychology, which suggests that romantic systems derive from attachment theory while sexual systems "primarily reside in different brain structures".

Concurrent with Bogaert's suggestion that understanding asexuality will lead to a better understanding of sexuality overall, he discusses the topic of asexual masturbation to theorize on asexuals and "'target-oriented' paraphilia, in which there is an inversion, reversal, or disconnection between the self and the typical target/object of sexual interest/attraction" (such as attraction to oneself, labelled "automonosexualism").

In an earlier 2006 article, Bogaert acknowledges that a distinction between behavior and attraction has been accepted into recent conceptualizations of sexual orientation, which aids in positioning asexuality as such. He adds that, by this framework, "(subjective) sexual attraction is the psychological core of sexual orientation", and also addresses that there may be "some skepticism in [both] the academic and clinical communities" about classifying asexuality as a sexual orientation, and that it raises two objections to such a classification: First, he suggests that there could be an issue with self-reporting (i.e., "a 'perceived' or 'reported' lack of attraction", particularly for definitions of sexual orientation that consider physical arousal over subjective attraction), and, second, he raises the issue of overlap between absent and very low sexual desire, as those with an extremely low desire may still have an "underlying sexual orientation" despite potentially identifying as asexual.

Community

The history of the asexual community is presently undocumented in academic work. Although several private websites for those who fall under the modern definition of asexuality existed online in the 1990s, scholars believe that it was not until the early 21st century when a community of self-identified asexuals began to form, aided by the popularity of online communities. Several small communities existed online, such as the "Leather Spinsters", "Nonolibidoism Society", and "Haven for the Human Amoeba", documented by Volkmar Sigusch. In 2001, activist David Jay founded the Asexual Visibility and Education Network (AVEN), whose stated goals are "creating public acceptance and discussion of asexuality and facilitating the growth of an asexual community".

Some asexuals believe that participation in an asexual community is an important resource, as they often report feeling ostracized in broader society. Communities such as AVEN can be beneficial to those in search of answers when questioning their sexual orientation, such as providing support if one feels their lack of sexual attraction constitutes a disease. Online asexual communities can also serve to inform others about asexuality. However, affiliating with online communities among asexual people vary. Some question the purpose of online communities, while others heavily depend on them for support. According to Elizabeth Abbott, asexuality has always been present in society, though asexual people kept a lower profile. She further stated that while the failure to consummate marriage was seen as an insult to the sacrament of marriage in medieval times, and has been sometimes used as grounds to terminate a marriage, though asexuality has never been illegal, unlike homosexuality. However, the recent growth of online communication and social networking as facilitated the growth of a community built upon a common asexual identity.

Symbols

The asexual pride flag features four horizontal stripes: black, gray, white, and purple, from top to bottom
A black ring may be worn on one's right middle finger to indicate asexuality.

In 2009, AVEN members participated in the first asexual entry into an American pride parade at the San Francisco Pride Parade. In 2010, after a period of debate surrounding the existence of a pride flag to represent asexuality, as well as a system to create one, the asexual pride flag was formally announced. The final design was a popular design, and received the most votes in an online open-access poll. The flag's colors—four horizontal stripes of black, gray, white, and purple from top to bottom—represent asexuality, gray-asexuality, allosexuality, and community, respectively. They have also since been used as a representation of asexuality as a whole. Some members of the asexual community additionally opt to wear a black ring on their right middle finger, colloquially known as an "ace ring", as a form of identification. Some asexuals use ace playing card suits as identities of their romantic orientation, such as the ace of spades for aromanticism and the ace of hearts for non-aromanticism.

Events

On June 29, 2014, AVEN organized the second International Asexuality Conference, as an affiliate WorldPride event in Toronto. The first was held at the 2012 World Pride in London. The second such event, which was attended by around 250 people, was the largest gathering of asexuals to date. The conference included presentations, discussions, and workshops on topics such as research on asexuality, asexual relationships, and intersecting identities.

Ace Week (formerly Asexual Awareness Week) occurs on the last full week in October. It is an awareness period that was created to celebrate and bring awareness to asexuality (including grey asexuality). It was founded by Sara Beth Brooks in 2010.

International Asexuality Day (IAD) is an annual celebration of the asexuality community that takes place on 6 April. The intention for the day is "to place a special emphasis on the international community, going beyond the anglophone and Western sphere that has so far had the most coverage". An international committee spent a little under a year preparing the event, as well as publishing a website and press materials. This committee settled on the date of 6 April to avoid clashing with as many significant dates around the world as possible, although this date is subject to review and may change in future years. The first International Asexuality Day was celebrated in 2021 and involved asexuality organizations from at least 26 countries. Activities included virtual meetups, advocacy programs both online and offline, and the sharing of stories in various art-forms.

Arts and literature

Darcie Little Badger is asexual and has written various short stories that explore asexual experiences.

In 2022, the academic journal Feral Feminisms covered authors and content created by and about the community in a special issue, which included reviews of Aze magazine, Darcie Little Badger's short stories, Sayaka Murata's Convenience Store Woman (2018), Seanan McGuire's Every Heart a Doorway (2016), Nilah Magruder's graphic novel M.F.K. (2017), Mackenzi Lee's historical fiction The Lady's Guide to Petticoats and Piracy (2018), Chuck Tingle's romance novella Absolutely No Thoughts Of Pounding... (2021), Cressida Cowell's How To Train Your Dragon series (2003-2015), Claire Kann's young-adult fiction Let's Talk About Love (2018), Angela Chen's cultural criticism Ace (2020), YouTube content by Jaiden Dittfach, and others.

Religion

Studies have found no significant statistical correlation between religion and asexuality, with asexuality occurring with equal prevalence in both religious and irreligious individuals. Asexuality is more common among celibate clergy, as non-asexuals are more likely to be discouraged by vows of chastity. According to Aicken et al., a higher proportion of Muslim respondents reported that they did not experience any form of sexual attraction compared to Christian respondents.

Because the application of the term asexuality is relatively recent, most religions do not have clear stances on it.

In Matthew 19:11–12, Jesus mentions "For there are eunuchs who were born that way, and there are eunuchs who have been made eunuchs by others – and there are those who choose to live like eunuchs for the sake of the kingdom of heaven." Some biblical exegetes have interpreted the "eunuchs who were born that way" as including asexuals. While Christianity has not directly mentioned asexuality, it has revered celibacy; the apostle Paul, writing as a celibate, has been described by some writers as asexual. He writes in 1 Corinthians 7:6–9,

I wish that all men were as I am. But each man has his own gift from God; one has this gift, another has that. Now to the unmarried and the widows I say: It is good for them to stay unmarried, as I am. But if they cannot control themselves, they should marry, for it is better to marry than to burn with passion.

Discrimination and legal protections

Asexuals marching in a pride parade in London

A 2012 study published in Group Processes & Intergroup Relations reported that asexuals are evaluated more negatively in terms of prejudice, dehumanization and discrimination than other sexual minorities, such as gay men, lesbians and bisexuals. Both homosexual and heterosexual people thought of asexuals as not only cold, but also animalistic and unrestrained. A different study, however, found little evidence of serious discrimination against asexuals because of their asexuality. Asexual activist, author, and blogger Julie Decker has observed that sexual harassment and violence, such as corrective rape, commonly victimizes the asexual community. Sociologist Mark Carrigan sees a middle ground, arguing that while asexuals do often experience discrimination, it is not of a phobic nature but "more about marginalization because people genuinely don't understand asexuality."

Asexuals also face prejudice from the LGBT community. Many LGBT people assume that anyone who is not homosexual or bisexual must be straight and frequently exclude asexuals from their definitions of queer. Although many well-known organizations devoted to aiding LGBTQ communities exist, these organizations generally do not reach out to asexuals and do not provide library materials about asexuality. Upon coming out as asexual, activist Sara Beth Brooks was told by many LGBT people that asexuals are mistaken in their self-identification and seek undeserved attention within the social justice movement. Other LGBT organizations, such as The Trevor Project and the National LGBTQ Task Force, explicitly include asexuals because they are non-heterosexual and can therefore be included in the definition of queer. Some organizations now add an A to the LGBTQ acronym to include asexuals; however, this is still a controversial topic in some queer organizations.

In some jurisdictions, asexuals have legal protections. Since 1999, Brazil has banned pathologization or attempted treatment of sexual orientation by mental health professionals through the national ethical code, and the U.S. state of New York has labeled asexuals as a protected class. However, asexuality does not typically attract the attention of the public or major scrutiny; therefore, it has not been the subject of legislation as much as other sexual orientations have.

In media

Sir Arthur Conan Doyle intentionally portrayed his character Sherlock Holmes as what would today be classified as asexual.

Asexual representation in media is limited and rarely openly acknowledged or confirmed by creators or authors. In works composed prior to the beginning of the twenty-first century, characters are generally automatically assumed to be sexual and the existence of a character's sexuality is usually never questioned. Sir Arthur Conan Doyle portrayed his character Sherlock Holmes as what would today be classified as asexual, with the intention to characterize him as solely driven by intellect and immune to the desires of the flesh. The Archie Comics character Jughead Jones was likely intended by his creators as an asexual foil to Archie's excessive heterosexuality, but, over the years, this portrayal shifted, with various iterations and reboots of the series implying that he is either gay or heterosexual. In 2016, he was confirmed to be asexual in the New Riverdale Jughead comics. The writers of the 2017 television show Riverdale, based on the Archie comics, chose to depict Jughead as a heterosexual despite pleas from both fans and Jughead actor Cole Sprouse to retain Jughead's asexuality and allow the asexual community to be represented alongside the gay and bisexual communities, both represented in the show. This decision sparked conversations about deliberate asexual erasure in the media and its consequences, especially on younger viewers.

Anthony Bogaert has classified Gilligan, the eponymous character of the 1960s television series Gilligan's Island, as asexual. Bogaert suggests that the producers of the show likely portrayed him in this way to make him more relatable to young male viewers of the show who had not yet reached puberty and had therefore presumably not yet experienced sexual desire. Gilligan's asexual nature also allowed the producers to orchestrate intentionally comedic situations in which Gilligan spurns the advances of attractive females. Films and television shows frequently feature attractive, but seemingly asexual, female characters who are "converted" to heterosexuality by the male protagonist by the end of the production. These unrealistic portrayals reflect a heterosexual male belief that all asexual women secretly desire men.

Asexuality as a sexual identity, rather than as a biological entity, became more widely discussed in the media in the beginning of the twenty-first century. The Fox Network series House represented an "asexual" couple in the episode "Better Half" (2012). However, this representation has been questioned by members of the asexual community, as the episode concluded that the man simply had a pituitary tumor that reduced his sex drive and the woman was only pretending to be asexual to please him, leading to controversy over the representation and a change.org petition for Fox Network to reconsider how it represents asexual characters in the future, stating it "represented asexuality very poorly by attributing it to both medical illness and deception." Other fictional asexual characters include SpongeBob and his best friend Patrick from SpongeBob SquarePants and Todd Chavez from BoJack Horseman (generally well-accepted by the asexual community as positive representation).

Fairness doctrine

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Fairness_doctrine

The fairness doctrine of the United States Federal Communications Commission (FCC), introduced in 1949, was a policy that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that fairly reflected differing viewpoints. In 1987, the FCC abolished the fairness doctrine, prompting some to urge its reintroduction through either Commission policy or congressional legislation. The FCC removed the rule that implemented the policy from the Federal Register in August 2011.

The fairness doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented. The demise of this FCC rule has been cited as a contributing factor in the rising level of party polarization in the United States.

While the original purpose of the doctrine was to ensure that viewers were exposed to a diversity of viewpoints, it was used by both the Kennedy and later the Johnson administration to combat political opponents operating on talk radio. In 1969 the United States Supreme Court, in Red Lion Broadcasting Co. v. FCC, upheld the FCC's general right to enforce the fairness doctrine where channels were limited. However, the court did not rule that the FCC was obliged to do so. The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the doctrine.

The fairness doctrine is not the same as the equal-time rule, which is still in place. The fairness doctrine deals with discussion of controversial issues, while the equal-time rule deals only with political candidates.

Origins

In 1938, a former Yankee Network employee named Lawrence J. Flynn challenged the license of John Shepard III's WAAB in Boston, and also lodged a complaint about WNAC. Flynn asserted that these stations were being used to air one-sided political viewpoints and broadcast attacks (including editorials) against local (and federal) politicians that Shepard opposed. The FCC requested that Shepard provide details about these programs, and to appease the commission, the Yankee Network agreed to drop the editorials. But Flynn created a company called Mayflower Broadcasting and tried to get the FCC to award him WAAB's license; however, the FCC refused. Instead, in 1941, the commission made a ruling that came to be known as the Mayflower Decision which declared that radio stations, due to their public interest obligations, must remain neutral in matters of news and politics, and they were not allowed to give editorial support to any particular political position or candidate.

In 1949, the FCC's Editorializing Report repealed the Mayflower doctrine, which had forbidden editorializing on the radio since 1941, and laid the foundation for the fairness doctrine by reaffirming the FCC's holding that licensees must not use their stations "for the private interest, whims or caprices [of licensees], but in a manner which will serve the community generally." The FCC Report established two forms of regulation on broadcasters: to provide adequate coverage of public issues, and to ensure that coverage fairly represented opposing views. The second rule required broadcasters to provide reply time to issue-oriented citizens. Broadcasters could therefore trigger fairness doctrine complaints without editorializing. The commission required neither of the fairness doctrine's obligations before 1949. Until then broadcasters had to satisfy only general "public interest" standards of the Communications Act.

The doctrine remained a matter of general policy and was applied on a case-by-case basis until 1967, when certain provisions of the doctrine were incorporated into FCC regulations.

In 1969, the United States courts of appeals, in an opinion written by Warren Burger, directed the FCC to revoke Lamar Broadcasting's license for television station WLBT due to the station's segregationist politics and ongoing censorship of NBC network news coverage of the U.S. civil rights movement.

Application of the doctrine by the FCC

In 1974, the Federal Communications Commission stated that the Congress had delegated the power to mandate a system of "access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue" but that it had not yet exercised that power because licensed broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It warned that:

Should future experience indicate that the doctrine [of 'voluntary compliance'] is inadequate, either in its expectations or in its results, the Commission will have the opportunity—and the responsibility—for such further reassessment and action as would be mandated.

In one landmark case, the FCC argued that teletext was a new technology that created soaring demand for a limited resource, and thus could be exempt from the fairness doctrine. The Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) argued that teletext transmissions should be regulated like any other airwave technology, hence the fairness doctrine was applicable (and must be enforced by the FCC). In 1986, Judges Robert Bork and Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit concluded that the fairness doctrine did apply to teletext but that the FCC was not required to apply it.  In a 1987 case, Meredith Corp. v. FCC, two other judges on the same court declared that Congress did not mandate the doctrine and the FCC did not have to continue to enforce it.

Decisions of the United States Supreme Court

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8–0) the constitutionality of the fairness doctrine in a case of an on-air personal attack, in response to challenges that the doctrine violated the First Amendment to the U.S. Constitution. The case began when journalist Fred J. Cook, after the publication of his Goldwater: Extremist of the Right, was the topic of discussion by Billy James Hargis on his daily Christian Crusade radio broadcast on WGCB in Red Lion, Pennsylvania. Cook sued arguing that the fairness doctrine entitled him to free air time to respond to the personal attacks.

Although similar laws are unconstitutional when applied to the press, the court cited a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in this way because of the limited public airwaves at the time. Writing for the court, Justice Byron White declared:

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others. ... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

Moreover, the court did not see how the fairness doctrine went against the First Amendment's goal of creating an informed public. The fairness doctrine required that those who were talked about be given chance to respond to the statements made by broadcasters. The court believed that this helped create a more informed public. Justice White explained that, without this doctrine, station owners would only have people on the air who agreed with their opinions. Throughout his opinion, Justice White argued that radio frequencies (and by extension television stations) should be used to educate the public about controversial issues in a way that is fair and non-biased so that they can create their own opinions.

The court "ruled unanimously in 1969 that the Fairness Doctrine was not only constitutional but essential to democracy. The public airwaves should not just express the opinions of those who can pay for air time; they must allow the electorate to be informed about all sides of controversial issues." The court also warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered. Justice William O. Douglas did not participate, but later wrote that he would have dissented because the Constitutional guarantee of Freedom of the press was absolute.

However, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court):

Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.

This decision differs from Red Lion v. FCC in that it applies to a newspaper, which, unlike a broadcaster, is unlicensed and can theoretically face an unlimited number of competitors.

In 1984, the Supreme Court ruled that Congress could not forbid editorials by non-profit stations that received grants from the Corporation for Public Broadcasting (FCC v. League of Women Voters of California, 468 U.S. 364 (1984)). The court's 5-4 majority decision by William J. Brennan Jr. stated that while many now considered that expanding sources of communication had made the fairness doctrine's limits unnecessary:

We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required.

After noting that the FCC was considering repealing the fairness doctrine rules on editorials and personal attacks out of fear that those rules might be "chilling speech", the court added:

Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine '[has] the net effect of reducing rather than enhancing' speech, we would then be forced to reconsider the constitutional basis of our decision in that case. (footnote 12)

Use as a political weapon

The fairness doctrine has been used by various administrations to harass political opponents on the radio. Bill Ruder, Assistant Secretary of Commerce in the Kennedy administration, acknowledged that "Our massive strategy [in the early 1960s] was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." Former Kennedy FCC staffer Martin Firestone wrote a memo to the Democratic National Committee on strategies to combat small rural radio stations unfriendly to Democrats:

The right-wingers operate on a strictly cash basis and it is for this reason that they are carried by so many small stations. Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule.

Democratic Party operatives were deeply involved in the Red Lion case since the start of the litigation. Wayne Phillips, a Democratic National Committee staffer described the aftermath of the ruling, explaining that "Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts".

The use of the fairness doctrine by the National Council for Civic Responsibility (NCCR) was to force right-wing radio stations to air rebuttals against the opinions expressed on their radio stations.

Revocation

Basic doctrine

In 1985, under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's presidential campaign staff in 1976 and 1980, the FCC released its report on General Fairness Doctrine Obligations stating that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment. The commission could not, however, come to a determination as to whether the doctrine had been enacted by Congress through its 1959 Amendment to Section 315 of the Communications Act.

In response to the 1986 Telecommunications Research & Action Center v. F.C.C. decision, the 99th Congress directed the FCC to examine alternatives to the fairness doctrine and to submit a report to Congress on the subject. In 1987, in Meredith Corporation v. F.C.C. the case was returned to the FCC with a directive to consider whether the doctrine had been "self-generated pursuant to its general congressional authorization or specifically mandated by Congress."

The FCC opened an inquiry inviting public comment on alternative means for administrating and enforcing the fairness doctrine. Then, in its 1987 report, the alternatives—including abandoning a case-by-case enforcement approach, replacing the doctrine with open access time for all members of the public, doing away with the personal attack rule, and eliminating certain other aspects of the doctrine—were rejected by the FCC for various reasons.

On August 4, 1987, under FCC Chairman Dennis R. Patrick, the FCC abolished the doctrine by a 4–0 vote, in the Syracuse Peace Council decision, which was upheld by a panel of the Appeals Court for the D.C. Circuit in February 1989, though the court stated in their decision that they made "that determination without reaching the constitutional issue." The FCC suggested in Syracuse Peace Council that because of the many media voices in the marketplace, the doctrine be deemed unconstitutional, stating that:

The intrusion by government into the content of programming occasioned by the enforcement of [the fairness doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.

At the 4–0 vote, Chairman Patrick said:

We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception.

Sitting commissioners at the time of the vote were:

The FCC vote was opposed by members of Congress who said the FCC had tried to "flout the will of Congress" and the decision was "wrongheaded, misguided and illogical". The decision drew political fire, and cooperation with Congress was one issue. In June 1987, Congress attempted to preempt the FCC decision and codify the fairness doctrine, but the legislation was vetoed by President Ronald Reagan. Another attempt to revive the doctrine in 1991 was stopped when President George H. W. Bush threatened another veto.

Fowler said in February 2009 that his work toward revoking the fairness doctrine under the Reagan administration had been a matter of principle (his belief that the doctrine impinged upon the First Amendment), not partisanship. Fowler described the White House staff raising concerns, at a time before the prominence of conservative talk radio and during the preeminence of the Big Three television networks and PBS in political discourse, that repealing the policy would be politically unwise. He described the staff's position as saying to Reagan:

The only thing that really protects you from the savageness of the three networks—every day they would savage Ronald Reagan—is the Fairness Doctrine, and Fowler is proposing to repeal it!

Conservative talk radio

The 1987 repeal of the fairness doctrine enabled the rise of talk radio that has been described as "unfiltered" divisive and/or vicious: "In 1988, a savvy former ABC Radio executive named Ed McLaughlin signed Rush Limbaugh — then working at a little-known Sacramento station — to a nationwide syndication contract. McLaughlin offered Limbaugh to stations at an unbeatable price: free. All they had to do to carry his program was to set aside four minutes per hour for ads that McLaughlin's company sold to national sponsors. The stations got to sell the remaining commercial time to local advertisers." According to The Washington Post, "From his earliest days on the air, Limbaugh trafficked in conspiracy theories, divisiveness, even viciousness" (e.g., "feminazis"). Prior to 1987 people using much less controversial verbiage had been taken off the air as obvious violations of the fairness doctrine.

Corollary rules

Two corollary rules of the doctrine, the personal attack rule and the "political editorial" rule, remained in practice until 2000. The "personal attack" rule applied whenever a person (or small group) was subject to a personal attack during a broadcast. Stations had to notify such persons (or groups) within a week of the attack, send them transcripts of what was said and offer the opportunity to respond on-the-air. The "political editorial" rule applied when a station broadcast editorials endorsing or opposing candidates for public office, and stipulated that the unendorsed candidates be notified and allowed a reasonable opportunity to respond.

The U.S. Court of Appeals for the D.C. Circuit ordered the FCC to justify these corollary rules in light of the decision to repeal the fairness doctrine. The FCC did not provide prompt justification so both corollary rules were repealed in October 2000.

Reinstatement considered

Support

In February 2005, U.S. Representative Louise Slaughter (D-NY) and 23 co-sponsors introduced the Fairness and Accountability in Broadcasting Act (H.R. 501) in the 1st session of the 109th Congress of 2005-2007 (when Republicans held a majority of both Houses). The bill would have shortened a station's license term from eight years to four, with the requirement that a license-holder cover important issues fairly, hold local public hearings about its coverage twice a year, and document to the FCC how it was meeting its obligations. The bill was referred to committee, but progressed no further.

In the same Congress, Representative Maurice Hinchey (D-NY) introduced legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, had 16 co-sponsors in Congress.

In June 2007, Senator Richard Durbin (D-Ill.) said, "It's time to reinstitute the Fairness Doctrine", an opinion shared by his Democratic colleague, Senator John Kerry (D-Mass.). However, according to Marin Cogan of The New Republic in late 2008:

Senator Durbin's press secretary says that Durbin has "no plans, no language, no nothing. He was asked in a hallway last year, he gave his personal view"—that the American people were served well under the doctrine—"and it's all been blown out of proportion."

On June 24, 2008, U.S. Representative Nancy Pelosi (D-Calif.), the Speaker of the House at the time, told reporters that her fellow Democratic representatives did not want to forbid reintroduction of the fairness doctrine, adding "the interest in my caucus is the reverse." When asked by John Gizzi of Human Events, "Do you personally support revival of the 'Fairness Doctrine?'", the Speaker replied "Yes".

On December 15, 2008, U.S. Representative Anna Eshoo (D-Calif.) told The Daily Post in Palo Alto, California that she thought it should also apply to cable and satellite broadcasters, stating:

I'll work on bringing it back. I still believe in it. It should and will affect everyone.

On February 11, 2009, Senator Tom Harkin (D-Iowa) told radio host Bill Press, "we gotta get the Fairness Doctrine back in law again." Later in response to Press's assertion that "they are just shutting down progressive talk from one city after another", Senator Harkin responded, "Exactly, and that's why we need the fair—that's why we need the Fairness Doctrine back."

Former President Bill Clinton has also shown support for the fairness doctrine. During a February 13, 2009, appearance on the Mario Solis Marich radio show, Clinton said:

Well, you either ought to have the Fairness Doctrine or we ought to have more balance on the other side, because essentially there's always been a lot of big money to support the right wing talk shows.

Clinton cited the "blatant drumbeat" against the stimulus program from conservative talk radio, suggesting that it does not reflect economic reality.

On September 19, 2019, Representative Tulsi Gabbard (D-HI) introduced H.R. 4401 Restore the Fairness Doctrine Act of 2019 in the House of Representatives, 116th Congress. Rep. Gabbard was the only sponsor. H.R. 4401 was immediately referred to the House Committee on Energy and Commerce on the same day. It was then referred to the Subcommittee on Communications and Technology on September 20, 2019.

H.R. 4401 would mandate equal media discussion of key political and social topics, requiring television and radio broadcasters to give airtime to opposing sides of issues of civic interest. The summary reads: "Restore the Fairness Doctrine Act of 2019. This bill requires a broadcast radio or television licensee to provide reasonable opportunity for discussion of conflicting views on matters of public importance. The Restore the Fairness Doctrine Act would once again mandate television and radio broadcasters present both sides when discussing political or social issues, reinstituting the rule in place from 1949 to 1987 ... . Supporters argue that the doctrine allowed for a more robust public debate and affected positive political change as a result, rather than allowing only the loudest voices or deepest pockets to win."

Opposition

The fairness doctrine has been strongly opposed by prominent conservatives and libertarians who view it as an attack on First Amendment rights and property rights. Editorials in The Wall Street Journal and The Washington Times in 2005 and 2008 said that Democratic attempts to bring back the fairness doctrine have been made largely in response to conservative talk radio.

In 1987, Edward O. Fritts, president of the National Association of Broadcasters, in applauding President Reagan's veto of a bill intended to turn the doctrine into law, said that the doctrine is an infringement on free speech and intrudes on broadcasters' journalistic judgment.

In 2007, Senator Norm Coleman (R-MN) proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule." It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee's jurisdiction."

In the same year, the Broadcaster Freedom Act of 2007 was proposed in the Senate by Senators Coleman with 35 co-sponsors (S.1748) and John Thune (R-SD) with 8 co-sponsors (S.1742) and in the House by Republican Representative Mike Pence (R-IN) with 208 co-sponsors (H.R. 2905). It provided:

The Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part) the requirement that broadcasters present opposing viewpoints on controversial issues of public importance, commonly referred to as the 'Fairness Doctrine', as repealed in General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985).

Neither of these measures came to the floor of either house.

On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the fairness doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and fairness doctrine advocates could try to expand content controls to the Internet. It could also include "government dictating content policy". The conservative Media Research Center's Culture & Media Institute argued that the three main points supporting the fairness doctrine — media scarcity, liberal viewpoints being censored at a corporate level, and public interest — are all myths.

In June 2008, Barack Obama's press secretary wrote that Obama (then a Democratic U.S. senator from Illinois and candidate for president) did not support it, stating:

Obama does not support reimposing the Fairness Doctrine on broadcasters ... [and] considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible. That is why Sen. Obama supports media-ownership caps, network neutrality, public broadcasting, as well as increasing minority ownership of broadcasting and print outlets.

On February 16, 2009, Mark Fowler said:

I believe as President Reagan did, that the electronic press—and you're included in that—the press that uses air and electrons, should be and must be as free from government control as the press that uses paper and ink, Period.

In February 2009, a White House spokesperson said that President Obama continued to oppose the revival of the doctrine.

In the 111th Congress (January 2009 to January 2011), the Broadcaster Freedom Act of 2009 (S.34, S.62, H.R.226) was introduced to block reinstatement of the doctrine. On February 26, 2009, by a vote of 87–11, the Senate added that act as an amendment to the District of Columbia House Voting Rights Act of 2009 (S.160), a bill which later passed the Senate 61–37 but not the House of Representatives. The Associated Press reported that the vote on the fairness doctrine rider was "in part a response to conservative radio talk show hosts who feared that Democrats would try to revive the policy to ensure liberal opinions got equal time." The AP report went on to say that President Obama had no intention of reimposing the doctrine, but Republicans (led by Sen. Jim DeMint, R-SC) wanted more in the way of a guarantee that the doctrine would not be reimposed.

Suggested alternatives

Media reform organizations such as Free Press feel that a return to the fairness doctrine is not as important as setting stronger station ownership caps and stronger "public interest" standards enforcement (with funding from fines given to public broadcasting).

Public opinion

In an August 13, 2008, telephone poll released by Rasmussen Reports, 47% of 1,000 likely voters supported a government requirement that broadcasters offer equal amounts of liberal and conservative commentary, while 39% opposed such a requirement. In the same poll, 57% opposed and 31% favored requiring Internet websites and bloggers that offer political commentary to present opposing points of view. By a margin of 71–20% the respondents agreed that it is "possible for just about any political view to be heard in today's media" (including the Internet, newspapers, cable TV and satellite radio), but only half the sample said they had followed recent news stories about the fairness doctrine closely. The margin of error was 3%, with a 95% confidence interval.

Formal revocation

In June 2011, the chairman and a subcommittee chairman of the House Energy and Commerce Committee, both Republicans, said that the FCC, in response to their requests, had set a target date of August 2011 for removing the fairness doctrine and other "outdated" regulations from the FCC's rulebook.

On August 22, 2011, the FCC voted to remove the rule that implemented the fairness doctrine, along with more than 80 other rules and regulations, from the Federal Register following an executive order by President Obama directing a "government-wide review of regulations already on the books" to eliminate unnecessary regulations.

Natural justice

From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Natural_justice
A tondo of an allegory of justice (1508) by Raphael in the Stanza della Segnatura (Room of the Apostolic Signatura) of the Apostolic Palace, Vatican City

In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. Actual bias is very difficult to prove in practice whereas imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.

Background

The courtroom of the Supreme Court of Canada in Ottawa, Ontario. In 1999, the Court ruled in Baker v Canada (Minister of Citizenship and Immigration) that the requirements of natural justice vary according to the context of the matter arising.

Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice.

Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the "natural law" of the Canonists, the mediaeval philosophers' visions of an "ideal pattern of society" or the "natural rights" philosophy of the 18th century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia, and the United Kingdom, it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side").

The requirements of natural justice or a duty to act fairly depend on the context. In Baker v Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including the nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectations, and the choice of procedure made by the decision-maker.

Earlier, in Knight v Indian Head School Division No 19 (1990), the Supreme Court held that public authorities which make decisions of a legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect.

Whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where the relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual.

Rule against bias

In general

People are barred from deciding any case in which bias exists or bias may fairly be suspected. This principle embodies the basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions.

The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system and leads to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co (FGC) Ltd v Lannon (1968): "Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'"

Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that "[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done".

Forms of bias

Actual and imputed bias

A portrait of the Lord Chancellor, Lord Cottenham (Charles Pepys, 1st Earl of Cottenham, 1781–1851), by Charles Robert Leslie. In Dimes v Grand Junction Canal (1852), his Lordship was disqualified from hearing a case as he had a pecuniary interest in the outcome.

Bias may be actual, imputed or apparent. Actual bias is established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove.

One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification is automatic—the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. A classic case is Dimes v Grand Junction Canal (1852), which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal, in which the Lord Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it was discovered by Dimes that Lord Cottenham, in fact, owned several pounds' worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case.

In certain limited situations, bias can also be imputed when the decision-maker's interest in the decision is not pecuniary but personal. This was established in the unprecedented case of R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.2) (1999). In an appeal to the House of Lords, the Crown Prosecution Service sought to overturn a quashing order made by the Divisional Court regarding extradition warrants made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty International (AI) was given leave to intervene in the proceedings. However, one of the judges of the case, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd. (AICL), a company under the control of AI. He was eventually disqualified from the case and the outcome of the proceedings set aside.

The House of Lords held that the close connection between AICL and AI presented Lord Hoffmann with an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lords took the view that the interest was sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case. In Locabail (UK) Ltd v Bayfield Properties Ltd (1999), the Court of Appeal warned against any further extension of the automatic disqualification rule, "unless plainly required to give effect to the important underlying principles upon which the rule is based".

Apparent bias

Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has arisen is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of bias".

The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. In R v Gough (1993), the House of Lords chose to state the test in terms of a "real danger of bias", and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely also stated that "the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man". However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism is that the emphasis on the court's view of the facts gives insufficient emphasis to the perception of the public. These criticisms were addressed by the House of Lords in Porter v Magill (2001). The Court adjusted the Gough test by stating it to be "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". This case therefore established the current test in the UK to be one of a "real possibility of bias".

On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. Although not currently adopted in the UK, this test has been endorsed by the Singapore courts.

It has been suggested that the differences between the two tests are largely semantic and that the two tests operate similarly. In Locabail, the judges stated that in a large proportion of the cases, application of the two tests would lead to the same outcome. It was also held that "[p]rovided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, and without inappropriate reliance on special knowledge, the minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed members of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done".

In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005), Judicial Commissioner Andrew Phang observed that the real likelihood test is in reality similar to that of reasonable suspicion. First, likelihood is in fact "possibility", as opposed to the higher standard of proof centring on "probability". Secondly, he suggested that real in real likelihood cannot be taken to mean "actual", as this test relates to apparent and not actual bias. He also observed that both the court's and the public's perspectives are "integral parts of a holistic process" with no need to draw a sharp distinction between them.

In contrast, in Re Shankar Alan s/o Anant Kulkarni (2006), Judicial Commissioner Sundaresh Menon thought that there was a real difference between the reasonable suspicion and real likelihood tests. In his opinion, suspicion suggests a belief that something that may not be provable could still be possible. Reasonable suggests that the belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbour the suspicions in the circumstances even though the suspicious behaviour could be innocent. On the other hand, likelihood points towards something being likely, and real suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more towards the actor than the observer. The issue is the degree to which a particular event is not likely or possible. Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure".

The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities, this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that a reasonable member of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts. The difference is that the driver behind this test is the strong public interest in ensuring public confidence in the administration of justice. As of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether the position taken in Tang Kin Hwa or Shankar Alan is preferable.

Exceptions to the rule against bias

Necessity

There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that "disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act". In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems.

This issue regarding necessity was raised in Dimes. The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed "for this [was] a case of necessity, and where that occurs the objection of interest cannot prevail".

Waiver

The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias. If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so.

Effect of a finding of bias

In Dimes, the judges advised the House of Lords that Lord Cottenham's pecuniary interest made his judgment not void, but voidable. This advice is not wrong in the context of a judicial act under review, where the judgment will be held valid unless reversed on appeal.

However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires, hence making the judgment void. Lord Esher said in Allison v General Council of Medical Education and Registration (1894) that the participation of a disqualified person "certainly rendered the decision wholly void".

Right to a fair hearing

In general

A hearing of the International Court of Justice in 2006 presided over by its president, Her Excellency Dame Rosalyn Higgins. A fundamental aspect of natural justice is that before a decision is made, all parties should be heard on the matter.

It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both sides should be heard. The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the cases against them, a fair opportunity to answer them, and the opportunity to present their own cases.

Besides promoting an individual's liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised. However, in the United Kingdom prior to Ridge v Baldwin (1963), the scope of the right to a fair hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863). In R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), Lord Atkin observed that the right only applied where decision-makers had "the duty to act judicially". In natural justice cases this dictum was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a "superadded" express obligation to follow a judicial-type procedure in arriving at the decision.

In Ridge v Baldwin, Lord Reid reviewed the authorities extensively and attacked the problem at its root by demonstrating how the term judicial had been misinterpreted as requiring some additional characteristic over and above the characteristic that the power affected some person's rights. In his view, the mere fact that the power affects rights or interests is what makes it "judicial" and so subject to the procedures required by natural justice. This removal of the earlier misconception as to the meaning of judicial is thought to have given the judiciary the flexibility it needed to intervene in cases of judicial review.

The mere fact that a decision-maker is conferred wide discretion by law is not reason enough for a weakening of the requirements of natural justice. In the United Kingdom context, this is demonstrated by Ahmed v H.M. Treasury (No. 1) (2010). The Treasury had exercised powers to freeze the appellants' financial assets and economic resources on the ground that it reasonably suspected the appellants were or might be persons who had committed, attempted to commit, participated in or facilitated the commission of terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 made under the United Nations Act 1946. The Supreme Court of the United Kingdom held that since the Al-Qaida Order made no provision for basic procedural fairness, it effectively deprived people designated under the order the fundamental right of access to a judicial remedy and hence was ultra vires the power conferred by the United Nations Act 1946 for the making of the Order.

Article 6 of the European Convention

The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, which states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

Article 6 does not, however, replace the common law duty to ensure a fair hearing. It has been suggested that Article 6 alone is not enough to protect procedural due process, and only with the development of a more sophisticated common law will the protection of procedural due process extend further into the administrative machine. Nonetheless, Article 6 supplements the common law. For example, the common law does not impose a general duty to give reasons for a decision, but under Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to decide whether to appeal.

Aspects of a fair hearing

Prior notice of hearing

Natural justice allows a person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v Wandsworth, Chief Justice William Erle went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be a form of abuse, as he had been treated as if he did not matter. As Lord Mustill famously held in R v Secretary of State for the Home Department Ex p Doody (1993): "Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

It has been suggested that the requirement of prior notice serves three important purposes:

  • The interest in good outcomes – giving prior notice increases the value of the proceedings as it is only when the interested person knows the issues and the relevant information that he or she can make a useful contribution.
  • The duty of respect – the affected person has the right to know what is at stake, and it is not enough to simply inform him or her that there will be a hearing.
  • The rule of law – notice of issues and disclosure of information opens up the operations of the public authority to public scrutiny.

The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake; in other words, the gist of the case.

Opportunity to be heard

Every person has the right to have a hearing and be allowed to present his or her own case. Should a person not attend the hearing, even with adequate notice given, the adjudicator has the discretion to decide if the hearing should proceed. In Ridge v Baldwin, a chief constable succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a defence. In another case, Chief Constable of the North Wales Police v Evans (1982), a chief constable required a police probationer to resign on account of allegations about his private life which he was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in Surinder Singh Kanda v Federation of Malaya (1962), a public servant facing disciplinary proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing. The Privy Council held that the proceedings had failed to provide him a reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face—"Natural justice does not generally demand orality". It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. In Lloyd v McMahon (1987), an oral hearing did not make a difference to the facts on which the case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral hearing may not always be the "very pith of the administration of natural justice". It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise.

Conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether the person charged has a proper opportunity to consider, challenge or contradict any evidence, and whether the person is also fully aware of the nature of the allegations against him or her so as to have a proper opportunity to present his or her own case. In Secretary of State for the Home Department v AF (2009), Lord Phillips of Worth Matravers said:

The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed.

However, when a hearing requires the balancing of multiple polycentric issues such as natural justice and the protection of confidential information for national security reasons, both the concerns of public security and the right to a fair trial must be adequately met. It was held by the House of Lords in AF, applying the decision of the Grand Chamber of the European Court of Human Rights A v United Kingdom (2009), that a person accused of terrorism against whom a control order has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate. If this requirement is satisfied, a fair hearing can be conducted without detailed disclosure of confidential information that might compromise national security. On the facts of the case, a special advocate was not permitted further contact with an applicant or his ordinary legal representatives except with permission of the Special Immigration Appeals Commission (SIAC) after viewing confidential (or "closed") materials.

The House of Lords recognized that although a special advocate's usefulness is stymied somewhat from having no further instructions after viewing such materials, if the SIAC decides to issue a control order predominantly on the basis of non-confidential (or "open") materials, an applicant cannot be regarded as having been denied an opportunity to challenge the reasonableness of the government's beliefs and suspicions about him. If the evidence against the applicant is largely closed but allegations contained in open material are sufficiently specific, an applicant should be able to provide his legal representatives and special advocate with information to refute it (such as an alibi, if the open material alleges he was at a certain place during a certain period) without having to know the detail or sources of the closed evidence. However, if the evidence revealed to the person consists only of general assertions and the case against him is based solely or to a substantive extent on undisclosed adverse evidence, the fair hearing rule under natural justice will not be satisfied.

In such cases, there are strong policy considerations supporting the principle that a trial procedure can never be considered fair if a person is kept in ignorance of the case against him or her. First, since the grounds for a reasonable suspicion that a person is involved in terrorist activity can span from incontrovertible evidence to an innocent misinterpretation of facts which can be explained away by the person, in many cases it is impossible for courts to be sure that the disclosure of the evidence will make no difference to the applicant. Secondly, resentment will be felt by the person and his family and friends if sanctions are imposed without any proper explanation of the grounds and when, due to the non-disclosure of information, the person is put in a position where he is unable to properly defend himself. As Lord Phillips put it, "if the wider public are to have confidence in the justice system, they need to be able to see that justice is done rather than being asked to take it on trust".

The right to be heard in answer to charges before an unbiased tribunal is illustrated in the Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980). During a disciplinary hearing, council members were either not conscientious about their attendance or did not attend the whole course of proceedings. This meant they did not hear all the oral evidence and submissions. The High Court held that this had substantially prejudiced the appellant and constituted a fundamental breach of natural justice. On the other hand, mere absence from a hearing does not necessarily lead to undue prejudice. It was held in Re Teo Choo Hong (1995) that the function of a lay member of a lawyers' disciplinary committee was to observe and not cast a vote or make a judgment. Thus, the appellant had not suffered undue prejudice.

On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a hearing, the other party must also be given the same opportunity. In addition, when a tribunal decides a case on a basis not raised or contemplated by the parties, or decides it without regarding the submissions and arguments made by the parties on the issues, this will amount to a breach of natural justice. However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice. This may occur when the submissions were accidentally omitted, or were so unconvincing that it was not necessary to explicitly state the adjudicator's findings.

Right to legal representation

There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case. When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel's assistance is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial.

In R v Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely:

  • the seriousness of the charge and the potential penalty;
  • whether any points of law are likely to arise.;
  • whether the prisoner is capable of presenting his own case;
  • whether there are any procedural difficulties faced by prisoners in conducting their own defence;
  • whether there is reasonable speed in making the adjudication; and
  • whether there is a need for fairness between prisoners or between prisoners and prison officers.

It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there is a greater need for allowing legal representation as this vindicates the idea of equality before the law.

When one refuses legal representation, one cannot expect to receive a higher "standard" of natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical Council (2008). Dr. Ho, who had been charged with professional misconduct, chose to appear before the council in person and declined to cross-examine the council's key witness. Subsequently, he argued that he should have been warned of the legal implications of not being legally represented. The High Court rejected this argument and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of presenting his own case and, most importantly, had not been deprived of his right to cross-examine the witnesses.

It is also not a court's obligation to provide assistance when a party presents his or her case without legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998), the accused had appeared in person before a magistrate and had entered a plea of guilt. He later petitioned the High Court for criminal revision, arguing that as the magistrate had not informed him of the defences available to him, his plea had been equivocal. The Court held:

The onus [of informing the accused of his defence options or what could be more advantageous to his case] does not shift to the judge (or the Prosecution, for that matter) simply because the accused is unrepresented. That will be placing too onerous a burden on the judge. Furthermore, the judge will be performing two completely incompatible and irreconcilable roles—one as the adjudicator, the other as the de facto defence counsel.

In Singapore, the right to legal representation is contingent on the nature of the inquiry. However, since Article 12 of the Constitution of Singapore guarantees equal protection under the law, it has been suggested that greater weightage should be accorded to this procedural right when balancing it against the competing demand of efficiency.

The decision and reasons for it

Currently, the principles of natural justice in the United Kingdom and certain other jurisdictions do not include a general rule that reasons should be given for decisions. In R v Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951), Denning L.J. stated: "I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision." It has been stated that "no single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions".

Historically, uncontrolled public decisions have led to poor outcomes and disrespect for the decision-makers. Such decisions also lacked the regularity and transparency that distinguish them from the mere say-so of public authorities. On such grounds, there are obvious benefits for the disclosure of reasons for decisions. First, procedural participation by people affected by a decision promotes the rule of law by making it more difficult for the public authority to act arbitrarily.

Requiring the giving of reasons helps ensure that decisions are carefully thought through, which in turn aids in the control of administrative discretion. Secondly, accountability makes it necessary for the public authority to face up to the people affected by a decision. When a public authority acts on all the relevant considerations, this increases the probability of better decision outcomes and, as such, is beneficial to public interests. Another important benefit is that respect for decision-makers is fostered, which increases their integrity in the public's eyes.

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