9th Circuit Court Strikes Down Ban On Political, Public Issues Spots On Public TV, Radio
April 12, 2012 at 3:08 PM (PT)
A three-judge panel of the 9th U.S. Circuit Court of Appeals has struck down the FCC's ban on political and public issue ads on public radio and TV stations. The 2-1 vote ruled that the ban is too broad and violates the First Amendment.
The case, MINORITY TELEVISION PROJECT, INC. v. FEDERAL COMMUNICATIONS COMMISSION, upheld the ban on non-political advertising on public stations, using intermediate scrutiny to single out the political ad ban as unconstitutional. The plaintiff operates noncommercial KMTP-TV/SAN FRANCISCO and hoped to be allowed to broadcast commercials, challenging a $10,000 fine for airing ads from for-profit companies. The court declined to declare broadcasters no longer under a "special exemption" from First Amendment issues because the Supreme Court has yet to rule in the indecency case presently before it, and also declined to use the CITIZENS UNITED case to overturn the regulation because that case was not, in its view, applicable to broadcasting. It deferred to Congress on the regulation of commercial speech on noncommercial stations but said of political and public issues spots, "there is simply no evidence in the record -— much less 'substantial evidence in the record before Congress' at the time of the statute’s enaction -- to connect the ban on this speech to the government’s interest in maintaining certain types of programming. Moreover, there is no evidence that public issue and political advertisements, which are banned, are more harmful than advertisements for goods and services by non-profits, which are allowed."
A dissent by Judge RICHARD A. PAEZ voiced concern that "For almost 60 years, noncommercial public broadcasters have been effectively insulated from the lure of paid advertising. The court’s judgment will disrupt this policy and could jeopardize the future of public broadcasting. I am not persuaded that the First Amendment mandates such an outcome."