Wednesday, December 4, 2013
In its opinion in Minority Television Project v. FCC, the en banc Ninth Circuit upheld the constitutionality of 47 U.S.C. § 399b which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.
Writing for the majority, Judge McKeown began by mentioning the showcase programming of public television: "Masterpiece Theater, PBS NewsHour, children’s programs such as Sesame Street and Curious George." In recognition of the "follow the money" reality, Congress recognized that advertising would "change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting." The First Amendment challenge by Minority Television Project, a public television broadcaster, was mounted after it was fined by the FCC for violating the ban on advertising through its "underwriting announcements." While the district judge upheld the statute, a divided Ninth Circuit panel upheld only the ban on for-profit advertising, while two judges issued separate opinions striking down the statute’s ban on issue and political advertising
The en banc majority upheld the constitutionality of the entirety of the bans, applying intermediate First Amendment scrutiny from FCC v. League of Women Voters, 468 U.S. 364 (1984) that nevertheless requires that the restrictions be "narrowly tailored" to further a substantial government interest, as well as a consideration of the sufficiency of less restrictive means, but do fall short of the strict scrutiny standard advanced by Minority Television Project. Applying intermediate scrutiny, the en banc majority held that legislative record was "ample" to support the statute and that the "case 'does not present a close call' requiring us to elaborate on what evidentiary burden Congress bears in enacting a law that implicates First Amendment rights." The majority stated that "substantial evidence before Congress supported the conclusion that the advertising prohibited by § 399b posed a threat to the noncommercial, educational nature of NCE [noncommercial educational] programming and that the additional evidence bears out Congress’s predictive judgment in enacting § 399b." For the majority, "Poking holes in the congressional evidence is hardly a substitute for the scrutiny required of this court."
The most contentious disagreement involved the ban on political and issue advertising. The majority held that Congressional findings regarding commercial advertising included political and issue advertising:
Congress determined that the “insulation of program control and content from the influence of special interests—be they commercial, political or religious”—was necessary. See H.R. Rep. No. 97-82, at 16 (1981). The government’s evidence regarding the enormous sums spent on political advertising confirms Congress’s prediction that, like advertising by for- profit entities, political advertising dollars have the power to distort programming decisions. In 2008 alone, political advertisers spent $2.2 billion. As the campaign season gets longer and longer, commercial television viewers are bombarded with political and issue advertising. Prohibiting only goods and services advertising and allowing issue and political advertising would have shifted incentives and left a gaping hole in § 399b’s protections.
While recognizing that political speech has a preferred place in First Amendment hierarchies of speech, the majority nevertheless found that the Congressional consideration of "commercialization" extended to this type of speech, as well as crediting Congressional consideration of an "experiment" to allow some time, place, and manner restrictions and the Congressional rejection of that option.
Judge Callahan wrote a very brief concurring and dissenting opinion, rejecting the constitutionality of the ban on the political and issues advertising.
Chief Judge Kozinski, joined by Judge Noonan, wrote a lengthy dissenting opinion, arguing that all of the advertising bans should be held unconstitutional. This opinion interestingly begins with what one might call its own sort of advertisement for American exceptionalism and the firstness of the First Amendment:
The United States stands alone in our commitment to freedom of speech. No other nation—not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment. These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, “uninhibited, robust, and wide-open.”
The dissent criticizes the majority's defence to Congress, including discussion from the FCC regarding the experiment, although the majority's opinion, in footnote 10, stated it was "surprised by the dissent’s effort to undermine the Commission’s recommendation with selective excerpts from the Commission’s report." The dissent also criticized the intermediate standard of review as being problematical and unpredictable as to outcome.
Should Minority Television Project seek certiorari, one might wonder whether Justice Sotomayor's appearance on Sesame Street will matter.