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Justice Department Asks 9th Cir to Rethink Public Broadcasting Ads

By Robyn Hagan Cain on July 03, 2012 4:03 PM

The federal government wants the Ninth Circuit Court of Appeals to reconsider a ruling that would allow public-broadcasting stations to accept political advertisements, reports The Wall Street Journal.

Friday, the Justice Department asked the court for rehearing or en banc review, claiming that the decision in Minority Television Project v. FCC "threatens the noncommercial, educational character of public broadcasting."

For years, federal law prohibited public broadcast radio and television stations from running: (1) advertisements for goods and services on behalf of for-profit entities, (2) advertisements regarding public issues, and (3) political advertisements. The statute is a content-based ban on speech: public broadcasters may transmit many types of speech, but, unlike most other stations, they may not transmit those three classes of advertising messages.

In April, the Ninth Circuit overturned a federal ban on political advertising on public television stations. In a 2-1 decision, the court found that the Federal Communications Commission (FCC) violated the First Amendment's free speech clause by prohibiting public broadcasters from running political and public issue ads, Reuters reports.

The controversy in this case started in 2009, when the FCC determined that Minority Television Project and San Francisco's KMTP television station had violated the federal advertising ban almost 2,000 times by broadcasting paid promotional messages on KMTP-TV. Applying intermediate scrutiny, the Ninth Circuit upheld the ban on the transmission of advertisements for goods and services by for-profit entities, but struck down the ban on public issue and political advertisements as unconstitutional.

Judge Carlos Bea wrote in the majority opinion "Public issue and political advertisements pose no threat of 'commercialization.' 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."

Judge Richard Paez, dissented, writing that political advertisements "could jeopardize the future of public broadcasting."

While it's unlikely that political advertising on public-broadcasting stations would result in an Elmo for Obama ad, it could change the tone of public programming during an election cycle. Laura Martin, an entertainment and Internet analyst for New York investment bank Needham & Co., told the Boston Globe that spending on political ads on local TV stations alone could reach approximately $3.2 billion.

Public broadcasting stations would not be required to take political ad revenue under the ruling, but stations that are struggling would probably be tempted.

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