The First Amendment and public television advertising: the need for clarity after Minority Television.

AuthorChapman, James

TABLE OF CONTENTS I. Introduction II. Background A. Facts of the Case B. Procedural History and Lower Court Opinions III. The Minority Television En Banc Opinions A. The Majority B. The Partial Concurrence and Dissent C. The Dissent IV. A Critique of the En Banc Ninth Circuit's Approach A. Applicable First Amendment Law B. Shortcomings o f the En Banc Ninth Circuit 's Opinion 1. The Full Range of Relevant First Amendment Interests 2. The Proper Rigor in an Intermediate Scrutiny Analysis 3. The Impact of Recent First Amendment Case Law C. Other Implicated Questions V. Conclusion I. INTRODUCTION

Seeking to liberalize its regulatory scheme of advertisements on public television, the Federal Communications Commission ("FCC") in 1981 did away with its long-standing prohibition of public television broadcasters airing any promotional content and adopted "the minimum regulatory structure that preserves a reasonable distinction between commercial and noncommercial broadcasting." (1) Congress followed by codifying the FCC's new regulatory framework at 47 U.S.C. sections 399a and 399b. (2) Section 399b specifically prohibits public television stations from airing three types of advertisements: for goods and services, regarding public issues, and supporting or opposing any political candidate. (3)

In 2006, Minority Television Project, Inc. ("Minority Television" or "Minority") brought suit, claiming these statutes and regulations were facially unconstitutional as abridging the First Amendment's protection of the freedom of speech. (4) The U.S. District Court for the Northern District of California upheld the laws, applying intermediate scrutiny and determining that the prohibitions were narrowly tailored to further the substantial governmental interest in preserving public broadcasting as a source of programming unavailable on commercial stations. (5)

On appeal, a sharply divided panel of the U.S. Court of Appeals for the Ninth Circuit upheld the ban on advertisements for goods and services, but struck down as unconstitutional the prohibitions on public issue and political advertisements. (6) Each judge on the panel wrote separately: Judge Bea wrote for the court, (7) Judge Noonan concurred in the judgment but disagreed strongly with Judge Bea's analysis and reasoning, (8) and Judge Paez dissented and would have upheld all the restrictions as constitutional. (9)

The Ninth Circuit then voted to accept the case for en banc review. (10) The en banc court reversed the panel and upheld the restrictions as constitutional. (11) Judge McKeown wrote for the court and seven other judges applying intermediate scrutiny and finding the three restrictions to be narrowly tailored to a substantial governmental interest. (12) Judge Callahan partially concurred and partially dissented. She would have upheld the ban on ads for goods and services, but would have struck down the ban on public issue and political ads. (13) Chief Judge Kozinski, joined by Judge Noonan, dissented. He would have held all the restrictions unconstitutional under the First Amendment. (14)

Generally, a content-based line between permitted and prohibited speech, like the one drawn in section 399b, would be heavily disfavored in our First Amendment law. (15) However, the Supreme Court has long accepted different standards of scrutiny for laws that regulate the broadcast medium due to the unique considerations and scarcity of spectrum. (16) Even operating within this unique analytical framework, the Ninth Circuit failed to adequately take into account three considerations: (1) the full range of relevant First Amendment interests, (2) the proper rigor needed in an intermediate scrutiny analysis, and (3) the impact of recent First Amendment case law, especially concerning issue and political advertisements.

This Comment critically evaluates the Ninth Circuit's opinions in Minority Television Project, Inc. v. Federal Communications Commission and argues that the en banc court failed to take the full range of First Amendment interests into account and conduct a proper intermediate scrutiny analysis under current First Amendment jurisprudence. Part II recounts the factual and procedural history of this case, and Part III examines the en banc Ninth Circuit opinions. Part IV then critiques the Ninth Circuit's approach and argues for greater weight to be given to First Amendment interests, more rigor in its intermediate scrutiny analysis, and a more comprehensive consideration of the impact of recent First Amendment case law, particularly in the context of issue and political ads. Part V closes the Comment with an analysis of the implications of the Minority Television decision on future cases and the prospects for Supreme Court review.


    1. Facts of the Case

      Our story begins in 1952, when the FCC first reserved broadcasting channels for noncommercial educational stations ("NCEs" or "public broadcast stations"). (17) When licensing noncommercial educational stations, the FCC, at the time, imposed an outright prohibition against public broadcast stations airing any promotional content to enable and encourage public broadcast stations to develop unique educational programming options free from market pressures. 18 By 1982, however, public broadcasters were in a bind. Growing financial pressures, coupled with anemic federal appropriations, prompted Congress and the FCC to revisit the restrictions on NCE promotional content, seeking to strike "a reasonable balance between the financial needs of [public broadcast] stations and their obligation to provide an essentially non-commercial service." (19)

      Congress thus adopted 47 U.S.C. sections 399a and 399b, (20) and the FCC promulgated 47 C.F.R. section 73.621(e) to implement these statutes." (21) Section 399a authorizes a public television station to broadcast "any business or institutional logogram" so long as any such announcement does not "interrupt regular programming." (22) A public broadcast station may not, however, "make its facilities available to any person for the broadcasting of any advertisement," (23) which is defined as any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended--

      (1) to promote any service, facility, or product offered by any person who is engaged in such offering for profit;

      (2) to express the views of any person with respect to any matter of public importance or interest; or

      (3) to support or oppose any candidate for political office. (24)

      In this framework, Congress sought to find a balance that enabled broadcasters to secure funding beyond federal appropriations while insulating them from commercial influences so that public television could maintain its unique programming niche and not succumb to market pressures to change its content. (25)

      Fast forward to 1999. Minority Television Project, Inc. owns and operates the public television station KMTP-TV in San Francisco, which focuses on multicultural programming and non-English language television programs. (26) KMTP-TV does not receive funding from the Corporation for Public Broadcasting. (27) Over the course of its operations from 1999-2002, Minority Television broadcast approximately 1,900 announcements that, in 2003, the FCC's Enforcement Bureau determined violated section 399b's prohibition against advertisements. (28) The FCC subsequently fined Minority $10,000, which Minority paid in full. (29) When Minority appealed the fine, the FCC denied its Application for Review (30) and its Petition for Reconsideration. (31) Minority then sought review in the federal courts.

    2. Procedural History and Lower Court Opinions

      Minority filed a Petition for Review of the FCC orders in the Ninth Circuit, and that court transferred the case to the district court. (32) The district court upheld the prohibitions on advertisements as narrowly tailored to further the substantial governmental interest "of insulating broadcasters from special interests and ensuring high quality programming." (33)

      The district court, while applying intermediate scrutiny pursuant to Federal Communications Commission v. League of Women Voters, (34) gave considerable deference to the determinations of Congress and the FCC that an advertising ban targeting those particular types of ads was narrowly tailored to the FCC's interest in "remov[ing] the programming decisions of public broadcasters from the normal kinds of commercial market pressures" (35) so they are able to "air programs with particular qualities consistent with their educational mission," particularly children's programming. (36) Minority Television did not contest this substantial government interest; it targeted instead the tailoring of the statute. (37) To determine the law's tailoring, the court looked to the tests established in Turner I (38) and Turner II (39): the government must demonstrate that the harms it addresses are real and the regulation will in fact alleviate those harms in a direct and material way, (40) and the law must be reasonable and supported by substantial evidence in the record before Congress. (41) The district court found these tests satisfied, and it found the same justifying rationale applied to each category of banned advertisement in its analysis. (42)

      Further, the district court found the advertising ban to be a content-based restriction on speech because section 399b "requires a content-based evaluation of advertisements." (43) It noted that the statute allows paid promotional use of logograms and identification of services, but prohibits advertisements on issues of public importance and political candidates, which "lie at the core of the First Amendment." (44) However, the court also noted that the statute permits unpaid political speech, such as a station editorial. (45) The court then deferred to Congress's judgment that allowing paid commercial, issue, and political advertisements...

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