Wednesday, October 4, 2023
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Public Media’s Political Ad Ban Skewered in 9th

(CN) - A federal law that lets public television and radio use "image advertisements," but not political ads, is vague and unconstitutional, an attorney told the 9th Circuit.

"I can advertise Girl Scout cookies but I can't talk about Save the Whales," said Walter Diercks, a lawyer for San Francisco's Minority Television Project in its challenge to the longtime ban on political and commercial advertising on public television and radio.

The nonprofit set out to challenge the 1981 law that established what kinds of "underwriting announcements" are allowed on PBS and NPR 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.

It claimed in a federal lawsuit that the restrictions violated the First Amendment because they were overly broad and prohibited content-based speech.

A federal judge granted the government summary judgment, however, leading the case to the 9th Circuit.

Last year, a divided three-judge panel of the federal appeals court found the ban on political advertisements unconstitutional, but allowed the prohibition on ads for profit-making companies. The court later agreed to reconsider the case before an 11-judge, en banc panel, which it convened in San Francisco on Tuesday.

Dierks argued that there really is no effective ban on commercial speech in the law because of what he called the "image advertiser" - usually a large, well-known corporation that underwrites programming with "gauzy announcements, basically saying, we are wonderful human beings, you ought to think nicely of us."

"That is commercial speech," Dierks said. "So you still have the problem that the statute is inverting the hierarchy of the Constitution. It is giving more protection to commercial speech than it is to noncommercial speech."

Several of the judges asked him for an example of this kind of advertising. Diercks read the copy of an underwriting announcement for a company in the Northwest that said that it supported the station and then described the company's many virtues.

Chief Judge Alex Kozinski asked: "How is that different from a commercial ad?"

"That's our point," Diercks replied. "We think it is a commercial ad."

By way of further showing the alleged vagueness of the law, Diercks noted that the FCC itself had said there was "significant uncertainty and controversy" about it.

"That doesn't strike me as a description of a statute that is clear," he said.

Arguing for the government, Justice Department attorney Mark Stern described the law as a proper regulation of radio and television stations that are subsidized by the federal government, whether it be through direct financial assistance or a free broadcasting license.

"In a general world where you can do all the advertising of any kind that you want to, there is a small spectrum of television and radio ... in which Congress has said, let us try to develop, based on a different economic model, a wholly different kind of programming," Stern said. "That's been the case for 60 years. The argument here is that because 30 some years ago Congress, when it codified a slight relaxation of that principal, didn't specifically address ads for persons where the promotion is not-for-profit, that the entire scheme should come crashing down."

Kozinski seemed to discount the relevance of such a scheme in the Internet age, and questioned the continued importance of the U.S. Supreme Court's landmark ruling in 1969's Red Lion Broadcasting Co. v. Federal Communications Commission, which upheld the "fairness doctrine" based in part on arguments about the limited radio spectrum.

"Remember, we are talking about the First Amendment," Kozinski said. "We are talking about an exception to one of the fundamental rights we are granted by the Bill of Rights. The Supreme Court says, well there's this exception because this is such a unique and limited opportunity to reach people. But that no longer exists - you've got YouTube; we live in the world of YouTube."

Judge John Noonan picked up Minority Television's argument when he grilled Stern on the point behind the law's ban on political speech.

"I take it you agree that political speech is on the highest rung of the ladder," he said. "It's the highest value that preserves out democracy. Now tell me ... why is it permissible to ban political speech and yet permit a variety of commercial speech?"

"Nobody is restricting the ability of any station to air political speech or debate," Stern answered. "What the scheme does is to say, there are not going to be ads promoting candidates ... in a discrete, narrow, publicly supported area."

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