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Political Ads Can't Be Banned from Public Television, 9th Cir. Rules

By Stephanie Rabiner, Esq. on April 17, 2012 | Last updated on March 21, 2019

Political and public issue advertisements may be coming to a public television station near you. The Ninth Circuit Court of Appeals has struck down a federal political ad ban, which had long prohibited the airing of such content on stations like PBS.

Congress had enacted the statute to ensure that the public airwaves broadcast only "high quality educational and noncommercial programming." Two of the three judges agreed that there is no evidence that political and public issue ads would pose a threat to this mission.

Before the court got to this point, it explained that the statute would only be upheld if there was concrete evidence that the ban was narrowly tailored to serve a substantial governmental interest.

The entire statute, which also bans advertisements by for-profit companies, was designed to prevent public stations from succumbing to the lure of ad dollars and special interests. Legislators feared that station managers would replace quality children's and public affairs programming with more commercialized or politicized content.

The court accepted this argument with respect to the commercial ad ban, but did not agree that there was such a threat should political and issue ads be allowed on public airwaves. "[T]he connection between a ban on public issue and political advertisements and the interest of promoting niche programming, is, to put it generously, tenuous," wrote the court.

Children can't vote, "so there is virtually no incentive for a station to alter its children's programming to suit the preferences of a political candidate or issue group."

As such, the court chose to strike down the political ad ban. Expect this one to hit the Supreme Court sometime in the next two years.

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