* 9th Circuit says FCC political ad ban too broad
* Dissent fears for future of public broadcasting
* FCC ban on ads for goods and services upheld
By Jonathan Stempel, Terry Baynes and Jasmin Melvin
APRIL 12 A divided U.S. appeals court struck
down a federal ban on political advertising on public TV and
radio stations, a decision that could open the public airwaves
to a heavy dose of campaign ads leading up to the November
By a 2-1 vote, a panel of the 9th U.S. Circuit Court of
Appeals in San Francisco said the Federal Communications
Commission violated the First Amendment's free speech clause by
blocking public broadcasters from running political and public
The court said the ban was over broad and that lifting it
would not threaten to undermine the educational nature of public
broadcast stations. It upheld a ban on ads for goods and
services on behalf of for-profit companies.
"Public issue and political speech in particular is at the
very core of the First Amendment's protection," Judge Carlos Bea
wrote in the main opinion.
"Public issue and political advertisements pose no threat of
'commercialization,'" he continued. "By definition, such
advertisements do not encourage viewers to buy commercial goods
and services. A ban on such advertising therefore cannot be
narrowly tailored to serve the interest of preventing the
'commercialization' of broadcasting."
Minority Television Project, a non-profit that runs KMPT-TV
in San Francisco, had challenged the FCC after being fined
$10,000 for running paid ads from companies such as insurer
State Farm and General Motors Co's Chevrolet division.
The FCC countered that the government has a significant
interest in ensuring the airing of educational programming, many
of which run on Public Broadcasting Service stations.
It said if public broadcasters became more dependent on ads,
they might end up replacing "Sesame Street" with programming
that may appeal to a wider range of viewers or listeners.
Walter Diercks, a lawyer representing the Minority
Television Project, declined immediate comment. The FCC did not
immediately respond to requests for comment. A PBS spokeswoman
declined to comment.
"IT SCARES ME TO DEATH"
Norman Ornstein, resident scholar at the American Enterprise
Institute, said the decision could "fundamentally change the
character of public television and radio" by allowing
deep-pocketed political and other organizations to begin
"swooping" onto the public airwaves to air their messages.
"I served on the board of PBS for six years and I know how
much we struggled to get adequate funding," he said. "This is
just going to move us further away from what remains of a public
square. ... To be truthful, it scares me to death."
The AEI is a conservative Washington think tank.
A federal judge in San Francisco upheld the FCC restrictions
in August 2009. Thursday's decision left the $10,000 fine
intact. The 9th Circuit oversees cases in several western U.S.
FUTURE AT STAKE
Concurring in Thursday's result, 9th Circuit Judge John
Noonan said the rise of newer technologies for transmitting TV
programs - such as cable, satellite, cell phones, the Internet
and Apple Inc's iPad - required a closer look at how
the government regulates speech on broadcast television.
He also suggested that regulations may be inconsistent,
referring to notices on behalf of financial services company
Charles Schwab Corp on the show "PBS NewsHour."
"I have seen announcements that to my mind are ads," he
wrote. "I have viewed Charles Schwab's message, 'Talk to Chuck'
- it is not about Chuck's golf game."
Judge Richard Paez dissented.
"For almost 60 years, commercial public broadcasters have
been effectively insulated from the lure of paid advertising,"
he wrote. "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."
Bea was appointed to the 9th Circuit by President George W.
Bush; Noonan by President Ronald Reagan; and Paez by President
The case is Minority Television Project Inc v. FCC, 9th U.S.
Circuit Court of Appeals, No. 09-17311.