A divided Ninth Circuit Court of Appeals has upheld the Federal Communications Commissions’ ban on commercial advertising on public radio and television. But it struck down the bar on political advertising.
“Public issue and political advertisements pose no threat of ‘commercialization’,” Justice Carlos T. Bea wrote for the court majority on Thursday. “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.”
The reform group Free Press was quick to react to the 2-1 decision.
“Polluting public broadcasting with misleading and negative political ads is not in keeping with the original vision of noncommercial broadcasting. And it’s certainly not the solution to funding public media,” Free Press spokesperson Craig Aaron declared. “At a time when people are turning to public broadcasting to get away from the flood of nasty attack ads, viewers don’t want to see ‘Sesame Street’ being brought to them by shadowy Super PACs.”
The case was brought to the court by the non-profit Minority Television Project, which operates San Francisco station KMPT-TV. In 2002 the FCC ruled that Minority violated the Commission’s ban on paid promotional messages no less than 1,900 times between 1999 and 2002.
“Minority alleges that it has declined to broadcast public issue and political advertisements and would do so but for the fear of FCC fines and forfeitures similar to those previously imposed and paid,” the court noted, so this was a First Amendment matter.
A strong dissent against the decision came from Justice Richard A. Paez.
“For almost sixty years, noncommercial 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.”
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