Thursday, April 12, 2012
Ninth Circuit and the Future of Public Broadcasting: First Amendment Requires Expansion of Advertisements
In its opinion in Minority Television v. FCC, a divided Ninth Circuit panel has declared two advertising bans unconstitutional under the First Amendment. At issue was 47 U.S.C. § 399b that prohibits public broadcast radio and television stations from transmitting over the public airways:
- advertisements for goods and services on behalf of for-profit entities
- advertisements regarding issues of public importance or interest (“public issues”)
- political advertisements
While upholding the first provision, the majority held the latter two were unconstitutional.
The panel opinion, authored by Judge Bea struggled to determine the correct standard of scrutiny, noting that because the doctrine and media landscape have changed substantially in recent years, this was "no simple matter." The panel rejected Minority Television's argument for strict scrutiny, even as it recognized that the statute made content distinctions. Instead, it found the intermediate standard of FCC v. League of Women Voters (1984) still applicable - - - "just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today." Nevertheless, Judge Bea stated it was important to be mindful that public issue and political speech were at the "very core of the First Amendment's protection," and that the the narrow tailoring prong of the intermediate scrutiny standard has been elaborated since 1984.
Essentially, Judge Bea's opinion turned on the existence of evidence before Congress to support its finding that the advertisements banned would negatively impact the government's interest in preserving public and niche programming available on public broadcast. There was evidence regarding advertisements on behalf of for-profit entities, but not as to public issues or political advertisements. Judge Bea targeted the government's citation practices - - - or lack thereof - - - in its brief to support his conclusion:
Ultimately, the most revealing statement in the government’s brief on this point is the following sentence, which contains no citations: “Political advertisers are no less capable of exerting influence on programmers than commercial advertisers, and, accordingly, political advertising has never been permitted in public broadcasting.” If that preliminary statement of fact about the ability of political advertisers to exert program influence were supported by some evidence—in particular, some evidence before Congress when it enacted the ban—the government could sustain its burden under intermediate scrutiny. But at such a critical point, the government makes only a bare assertion, unsupported by citation to any evidence. The government cannot simply assert its way out of the “substantial evidence” requirement of the First Amendment.
Senior Judge Noonon, concurring, revealed a bit about his own PBS habits, while suggesting that subsection 1 might also be unconstitutional:
As a viewer of Jim Lehrer NewsHour and its successor, I have seen announcements that to my mind are ads. 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. Consequently, on this point, too, I concur in the result reached by Judge Bea.
Dissenting, Judge Paez predicted that the decision could "jeopardize the future of public broadcasting." He would have preferred to defer to Congress and objected to the focus on the evidence before Congress.