* Congress sought to protect programming decisions
* 9th Circuit rejects First Amendment challenge
By Jonathan Stempel
Dec 2 A divided U.S. appeals court on Monday
upheld a federal ban on political advertising on public
television and radio stations, rejecting an argument that it
unconstitutionally violated the First Amendment.
By an 8-3 vote, the 9th U.S. Circuit Court of Appeals in San
Francisco let stand a 1981 federal statute that prohibits public
stations from transmitting paid advertisements on behalf of
political candidates, issues of public importance or interest
and for-profit entities.
Supporters of the law have expressed concern about turning
public stations into forums for political attack ads,
undermining their ability to emphasize public affairs and
educational programming such as PBS NewsHour and Sesame Street.
Both the Public Broadcasting Service and National Public
Radio Inc had urged that the law be deemed constitutional.
The case dates back a decade, when the Federal
Communications Commission fined Minority Television Project Inc,
which operated KMTP-TV in San Francisco, $10,000 for running
paid ads from companies such as Ford Motor Corp, General Motors
Co, Korean Air Lines Co and State Farm.
Writing for the 9th Circuit majority, Circuit Judge M.
Margaret McKeown said the FCC statute targets "the real threat -
the influence of paid advertising dollars."
She said this reflects Congress' view that programmers
should be discouraged from trying to "follow the money" and
helps preserve the "essence" of public broadcast programming.
"Congress's determination that all three kinds of
advertising posed a significant threat to public programming is
supported by substantial evidence," McKeown wrote.
HOW MUCH PROTECTION?
Minority Television Project will review the decision before
deciding whether to appeal to the U.S. Supreme Court, their
lawyer Walter Diercks said in a phone interview.
"Obviously, we're unhappy," said Diercks, a partner at
Rubin, Winston, Diercks, Harris & Cooke in Washington, D.C.
"We're talking about political speech and issue speech, which is
speech of the highest rung, and we're giving it less protection
than some forms of commercial speech."
The U.S. Department of Justice, which had defended the law
in court, did not respond to requests for comment.
PBS spokeswoman Jan McNamara said PBS is pleased with the
decision, believing that a contrary ruling could have pressured
public broadcasters to alter the "distinctive nature and
content" of noncommercial programming.
In August 2009, a federal district judge in San Francisco
had upheld the statute.
A three-judge 9th Circuit panel in April 2012 voided the ban
on political and public issue ads and upheld the ban on ads for
goods and services by for-profit entities.
Monday's decision affirmed the district court ruling.
Chief Judge Alex Kozinski of the 9th Circuit dissented from
Monday's decision, saying evidence supporting the FCC limits
"doesn't pass muster under any kind of serious scrutiny."
The influential conservative also urged that judges,
including on the U.S. Supreme Court, reconsider the proper
standard for reviewing broadcast restrictions.
"I would set public television and radio free to pursue its
public mission to its full potential," he wrote. "We'd all be
better off for it."
The case is Minority Television Project Inc v. Federal
Communications Commission et al, 9th U.S. Circuit Court of
Appeals, No. 09-17311.