(CN) - The federal ban against political and commercial advertising on public television and radio stations survived a challenge Monday before an 11-judge panel of the 9th Circuit.
In a previous ruling, a three-judge panel had found the prohibition on political advertising unconstitutional but allowed the ban on commercial advertising to stand.
In a lengthy dissent to the new ruling, Chief Judge Alex Kozinski argued that both prohibitions are keeping public television and radio stations from "pursu[ing] [their] public mission to its full potential." (Brackets added.)
Minority Television Project, a California nonprofit that operates two public television stations in San Francisco dedicated to multicultural and non-English language programming, challenged the restrictions, which Congress approved in 1981, after it was fined $10,000 by the Federal Communications Commission for allegedly violating the commercial ban some 1,900 times between 1999 and 2002.
Minority argued in San Francisco that the restrictions violated the First Amendment because they were overly broad and prohibited content-based speech. The nonprofit appealed to the 9th Circuit after U.S. Magistrate Judge Elizabeth Laporte granted the government summary judgment.
In 2012, a divided three-judge panel of the federal appeals court struck down the prohibition against political advertisements but said public stations could forbid for-profit companies from buying air time.
The appeals court then agreed to reconsider the case before an 11-judge, en banc panel, which voted 8-3 to uphold the entire law, not just the ban on commercial advertising.
"Whether selling financial services, a state senator, or a voter initiative, advertisers seek the largest possible audience," the ruling states.
The majority found that unfettered political and commercial ads would likely alter the core principle of public broadcasting to provide content not typically available on stations beholden to advertisers.
"Evidence before the district court reinforces the congressional view that if advertising were allowed, programming would 'follow the money,' changing the nature of public broadcast programming," wrote Judge M. Margaret McKeown for the panel.
McKeown added that, "Congress's determination that all three kinds of advertising posed a significant threat to public programming is supported by substantial evidence, and Minority TV does not point to any evidence indicating that issue and political advertising are less likely to result in commercialization than corporate goods and services advertising."
In a partial dissent, Judge Consuelo Callahan argued in favor of keeping the previous three-judge panel's ruling in place.
"I dissent from the majority's acceptance of ... [the] prohibition of advertisements on issues of public importance or interest and for political candidates," she wrote. "These restrictions implicate the First Amendment's core concerns and are not justified on this record."
In his own dissent, Chief Judge Kozinski wrote that none of the prohibitions make sense, especially since they permit "logograms and advertisements for goods sold by non-commercial entities."
During oral arguments in March, Minority Television's attorney Walter Diercks, of Rubin, Winston, Diercks, Harris & Cooke in Washington, D.C., made a similar argument, saying that there really was no effective ban on commercial speech because of the prevalence of the corporate "image advertiser" and its "gauzy announcements, basically saying, we are wonderful human beings, you ought to think nicely of us."
Neither Dierks nor the FCC immediately returned requests for comment on Monday.
"I would strike down as unconstitutional the statute and corresponding regulations that prohibit public broadcast stations from carrying commercial, political or issue advertisements," Kozinski wrote. "I would reverse the district court and remand with instructions that summary judgment be granted in favor of the plaintiffs. And I would set public television and radio free to pursue its public mission to its full potential. We'd all be better off for it."
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