A divided federal appeals court on Thursday struck down as unconstitutional the ban on political and public issue advertisements on noncommercial radio and television stations, rejecting the government's concern about the dilution of educational programming.
The U.S. Court of Appeals for the Ninth Circuit ruled 2-1 against the Federal Communications Commission, siding instead with a small California nonprofit called the Minority Television Project, which focuses on niche, non-English programming.
Represented by Washington attorney Walter Diercks, the television station sued the FCC in U.S. District Court for the Northern District of California to challenge the ban on commercial and political advertising. The station lost in the trial court.
The decision opens the door for public broadcast radio and television stations to run political and public issue advertisements, which the appeals court called “the very core of the First Amendment’s protection.” The court, however, upheld the restriction on commercial advertising on behalf of for-profit corporations.
Writing for the majority, Judge Carlos Bea said, “neither logic nor evidence supports the notion that public issue and political advertisers are likely to encourage public broadcast stations to dilute the kind of noncommercial programming whose maintenance is the substantial interest that would support the advertising bans.”
Bea, joined in the judgment by Judge John Noonan, said public issue and political advertising will not negatively affect children’s programming on public television stations.
The large majority of viewers can’t legally vote, Bea said. The broadcast station, then, has no incentive to change its children’s line-up, the judge said.
Bea crafted a hypothetical situation in which President Barack Obama or another candidate for the White House appeared on a kids’ show to fight crime alongside Superman or Batman.
“It is true that such cartoon would be more likely to exist on a station where the particular candidate is able to run a 30-second political advertisement before and after his world-saving derring-do than on a station where such advertisements are prohibited,” Bea said. “But the possibility that such cartoons will replace ‘Sesame Street’ anytime soon seems quite remote.”
Bea said upholding the ban on political advertising on public broadcast stations “requires more than speculation.”
Noonan, who agreed with Bea’s judgment, wrote a separate concurrence.
“[I]n this delicate and difficult field of rapid change, it would be hard to believe that the restrictions on political speech established by the statute over thirty years ago are constitutionally valid even if they had met constitutional criteria when they were published,” the judge wrote.
Noonan said new forms of communication—including cable, cellphones and iPads—“call at least for a new look at the government’s substantial role in licensing and regulating speech on broadcast television.”
The Justice Department’s legal team, including Mark Stern, who argued for the FCC, said the restrictions on advertising were necessary to maintain the educational nature of public broadcast stations.
Because advertisers want to reach the broadest possible audience, a commercial-supported radio or television station has an incentive to broadcast programs with what the Ninth Circuit called “mass-market” appeal. Injecting advertisements in the mix, DOJ said, could run the risk of eliminating niche educational programs.
The appeals court said it acknowledges the government has a substantial interest in ensuring high-quality educational programming on public broadcast stations. “Even though cable, satellite, and the Internet have changed the nature of television and radio, the broadcast spectrum remains a finite national resource,” Bea wrote.
Minority Television Project operates KMTP-TV, which does not receive funding from the Corporation for Public Broadcasting, a private entity that invests in education programming on public broadcast stations.
Diercks of Washington’s Rubin, Winston, Diercks, Harris & Cooke, whose practice includes representing broadcast clients, said the Ninth Circuit decision is a “vindication of what I thought was First Amendment law for decades.”
“When I first took a look at the statute, I said how can this be?” Diercks recalled. “You are going to pick and choose what’s for public consumption in the noncommercial speech area? How are you going to do that? You can’t engage in content discrimination with public issue and political speech.”
Diercks dismissed as speculation how any public radio or television broadcast station will respond to the changed advertising landscape.
Individual broadcasters, Diercks said, will make decisions on their next steps regarding public use and political advertising.
“Some will dip their toes into it. Some will dive into it,” he said. “I think they will be cognizant of the sensibilities of their audiences. They will be sensitive to not wanting to do anything that drives away listeners.”
In dissent, Judge Richard Paez said noncommercial public broadcasters have been “effectively insulated from the lure of paid advertising” for nearly 60 years.
Paez said the congressional provisions at issue are narrowly tailored and protect the government’s interest in noncommercial public broadcasting.
“The court’s judgment will disrupt this policy and could jeopardize the future of public broadcasting,” Paez said. “I am not persuaded that the First Amendment mandates such an outcome.”
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