Ninth Circuit sides with FCC, upholds ban on political advertising for pubcasters

By Ben Mook

A federal appeals court last week upheld a ban on political and public-issue commercials on pubcasting stations, ruling that its removal would compromise their educational mission.

The split 9–2 decision was handed down Dec. 2 by a panel of judges on the U.S. 9th Circuit Court of Appeals. Writing for the majority, Judge M. Margaret McKeown said that the restrictions Congress imposed on advertising were intended to shield noncommercial broadcasters from the competitive pressures of commercial media, not to limit constitutionally protected free speech.

“The hallmark of public broadcasting has been a longstanding restriction on paid advertising to minimize commercialization,” McKeown wrote. “In a classic case of ‘follow the money,’ Congress recognized that advertising would change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting.”

Minority Television Project, Inc., a private foundation that holds the license to KMTP-TV in San Mateo, Calif., is a key party to the case, which sprang from fines imposed by the FCC in 2003. The pubcaster serves minority and ethnic communities in the San Mateo market, broadcasting programs in German, Chinese, Korean and other foreign languages.

Though the case applies only to stations operating within the nine western states that make up the Ninth Circuit, pubcasters feared that a decision favoring KMTP would open the gates to a flood of political ads on public airwaves. In the most recent appeal, NPR and PBS together filed an amicus brief urging the court to uphold the ban.

“The harm associated with commercialism is the same whether commercial product advertising or political candidate or issue advertising is involved,” wrote attorneys for NPR and PBS. “That is because commercial forces create a financial incentive to make programming decisions based on maximizing audience size rather than the needs and interests of the station’s community of license and the nature and quality of the programming itself.”

Walter Diercks, the attorney representing Minority Television, expressed surprise that public media’s two biggest distributors would support limitations on free speech.

“This is the only time I’ve ever seen mass media supporting suppression of their own free speech — they basically supported censorship,” he said. “They get a lot of money from the federal government, and then they support restrictions of free speech by the federal government. In 30 years, I’ve never seen this happen.”

The case dates back to 2003 when, after responding to a complaint from commercial TV station KTSF in nearby Brisbane, the FCC launched an investigation into KMTP’s adherence to its guidelines for noncommercial broadcasting. It found that from 1999 to 2002 KMTP aired 1,900 commercials for companies such as Chevrolet, Korean Air and State Farm Insurance. The FCC ordered the pubcaster to forfeit $10,000.

KMTP paid the forfeiture but in 2006 challenged the FCC by filing suit in the U.S. District Court for Northern California. After the federal district court backed the FCC by upholding the ban in August 2009, KMTP appealed to the Ninth Circuit, which has now considered the case twice.

In an April 2012 ruling, the court issued a mixed decision, backing the ban on paid corporate ads but allowing some leeway on commercials with political or issue advocacy messages. The FCC then appealed that decision to an en banc panel of Ninth Circuit Court judges.

Dissenters favor strict scrutiny

In the latest ruling, Chief Judge Alex Kozinski dissented from the majority opinion, arguing that the ban violates the First Amendment. In his dissenting opinion, which was joined by Judge John T. Noonan, Kozinski chided the majority for not taking a stricter view of free speech.

“The majority embraces every justification advanced by the government without the least hesitation or skepticism, and without giving proper weight to the true harms caused by the speech restrictions in question,” he wrote.

He criticized the court panel for applying indeterminate scrutiny to the case, allowing judges to consider whether a statute involves governmental interests and, if so, whether it effectively advances them. The approach encourages judges to apply their own values to free speech issues, he wrote.

“Speech that judges like gets protected, and speech that judges don’t like gets the back of the hand,” Kozinski wrote. “And judges like public radio and television, while pretty much nobody likes commercials. It’s hardly a fair fight. . . .”

In a response, the majority criticized Kozinski and Noonan for advocating an interpretation that oversteps the limits of the judiciary.

“Congress is a political body that operates through hearings, findings, and legislation; it is not a court of law bound by federal rules of evidence,” McKeown wrote. “Ignoring fundamental principles of separation of powers, the dissent would rewrite the legislation, ignore the congressional evidence, and substitute pop culture and its own policy judgment for that of Congress.”

Appeals decision pending

Minority Television has at least 60 days to decide whether to appeal the latest decision, according to Diercks.

Minority Television can appeal the Ninth Circuit ruling to the U.S. Supreme Court, which would decide whether to grant a writ of certiorari and hear the case. The Supreme Court, whose justices decide which cases make its docket, is under no obligation to take up an appeal.

Questions, comments, tips? mook@current.org
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