A U.S. law prohibiting corporate and campaign advertising on public radio and television was upheld by a federal appeals court that ruled commercial messages threatened their educational mission.
The U.S. Court of Appeals in San Francisco said in a 9-2 ruling today that the government has a substantial interest in imposing advertising restrictions to “preserve the essence of public broadcast programming.” The 11-judge panel overruled an earlier decision by a three-judge panel.
“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,” the court’s majority said.
The court rejected arguments that broadcast speech should receive the same deference that the U.S. Supreme Court gave to speech related to elections in its 2010 Citizens United ruling that allowed corporations and unions to spend unlimited sums on political campaigns.
Citizens United “was not about broadcast regulation; it was about the validity of a statute banning political speech by corporations,” U.S. Circuit Judge M. Margaret McKeown, who was appointed to the court by President Bill Clinton, a Democrat, said in the ruling for the majority.
Minority Television Project Inc., a California nonprofit group that operates the public television station KMTP in Palo Alto, California, sued the Federal Communications Commission after it was fined $10,000 by the agency for allegedly broadcasting ads with promotional language for Chevrolet, Ford and Korean Airlines, according to the ruling.
Federal law bans broadcasters from airing paid ads for political candidates, issue advocacy and corporations on public radio and TV. The law allows programming suppliers such as National Public Radio to air messages by corporate sponsors, said Walter Diercks, an attorney for Minority Television.
The station claimed the ban on ads violated its right to free speech. A federal judge in San Francisco ruled in favor of the government, then a three-judge panel of the appeals court ruled 2-1 in 2012 that the ban on political and issue advertising was unconstitutional.
In today’s ruling, “from our point of view, the majority got it wrong,” Diercks said in a phone interview. He said the U.S. Supreme Court didn’t treat speech distributed by broadcast differently from speech over satellite or cable in the Citizens United case.
He also argues that the law is unconstitutionally vague about whether underwriter announcements identifying corporate sponsors cross the line into promotional announcements that would be barred.
Minority Television has months to consider whether to pursue another appeal to the high court. “Unfortunately this is sort of a David and Goliath thing,” Diercks said.
Mark Wigfield, an FCC spokesman, didn’t immediately respond to a voice-mail message seeking comment on the ruling.
The case is Minority Television Project Inc. v. FCC, 09-17311, U.S. Court of Appeals for the Ninth Circuit (San Francisco).
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