Public TV and Radio Cannot Ban Political Advertising

(CN) - The longtime ban against political advertisements in public television and radio is unconstitutional, the 9th Circuit ruled Thursday.

A divided panel struck down the prohibition but said public stations can continue to forbid for-profit companies from buying air time. Judge Richard Paez warned, however, that the move could bring about the end of public broadcasting.

"For almost sixty years, noncommercial public broadcasters have been effectively insulated from the lure of paid advertising," Paez's dissent states. "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."

His colleagues on the three-judge panel found no evidence that political ads would necessarily degrade the government's interest in preserving educational programming.

"There is no evidence in the record - much less evidence which was in the record before Congress - to support Congress's specific determination that public issue and political advertisements impact the programming decisions of public broadcast stations to a degree that justifies the comprehensive advertising restriction at issue here," Judge Carlos Bea wrote for the majority (emphasis in original).

The challenge came from Minority Television Project, a California nonprofit that operates two public television stations in San Francisco dedicated to multicultural and non-English language programming.

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

It appealed after U.S. Magistrate Judge Elizabeth Laporte granted the government summary judgment in San Francisco.

Though the court hammered the prohibition on political ads, Minority must still pay the $10,000 because the commercial advertising restrictions survived the challenge.

"Congress's decision to continue regulation of promotional advertising - at least by for-profit entities - on public broadcast stations was supported by substantial evidence presented to Congress that advertising would harm the educational mission of public broadcast stations," Bea wrote. "In light of the deference we afford to Congress's legislative judgments, we conclude that Congress's conclusion that paid promotional messages by for profit entities pose a threat to extinguish public broadcast stations' niche programming was supported by substantial evidence. Moreover, all of the evidence which was before Congress - and which was submitted by the government to the district court - evinces a strong connection between the harm recited and the prevalence of commercial advertising."

While pleased with one part of the decision, Minority Television Project said the continued ban on ads by for-profit companies is disingenuous at best. Public stations have been allowed to engage in "enhanced underwriting" since the Public Broadcasting Amendments Act of 1981, its attorney told Courthouse News.

"The notion that we can't let filthy lucre to influence decisions - who are you kidding," asked Walter Diercks, of the Washington, D.C., firm Rubin, Winston, Diercks, Harris & Cooke. "You've been doing it for 30 years."

Diercks seemed to echo Judge John Noonan's concurring opinion, which said Minority could renew its objections by challenging the statute's "confusing or inconsistent" application.

"As a viewer of Jim Lehrer 'NewsHour' and its successor, I have seen announcements that to my mind are ads," Noonan wrote. "For example, I have viewed Charles Schwab's message, 'Talk to Chuck' - it is not about Chuck's golf game. I have viewed Chevron's 'We have more in common than you think' - it appears to me to promote Chevron's business by asking me to identify with its efforts to improve the environment. I have watched as a pest control company has displayed the power of its techniques to eliminate a bug, a promotion of its services, one would suppose. But all of the above would be relevant on an as-applied challenge. Such a challenge must be brought as original matter in the court of appeals."

Diercks said in a phone interview that the ruling is unlikely to have any immediate effect on the current presidential campaign, as the government could request a stay of the matter while petitioning the court for a rehearing.

Besides, he said, "this is a prohibition that prevents broadcasters from doing stuff; it doesn't mean that they have to."

Just because public broadcasters have the right to scramble for their piece of the campaign-money pie, doesn't mean that "the people who run public broadcasting don't have the good sense not to poke their viewers in the eye," he said.

A Department of Justice spokesman said he was reviewing the court's ruling. The FCC did not immediately respond to a request for comment.

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