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Ninth Circuit Opens Public Airwaves for Political Advertisements

By Robyn Hagan Cain on April 16, 2012 | Last updated on March 21, 2019

A recent Ninth Circuit Court of Appeals ruling could pave the way for political propaganda during your Downton Abbey viewing party.

Last week, 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.

Federal law prohibits 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 2009, the FCC determined that Minority Television Project, which operates the San Francisco-based KMTP television station, had violated the federal advertising ban approximately 1,900 times between 1999 and 2002 by "willfully and repeatedly" broadcasting paid promotional messages on KMTP-TV. Minority challenged the finding.

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, writing for the majority, noted, "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, however, disagreed. Paez wrote in his dissent, "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."

Do you think that public broadcasting will benefit from a chunk of the anticipated $3.2 billion in political advertisement spending during election season, or do the ads undermine the purpose of public broadcasting?

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