Political ads may soon air on public radio and TV—a major shift in the nature of public broadcasting. In a 2-1 decision, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that the federal ban on political advertising on public stations is unconstitutional because it violates the First Amendment.
The decision comes just as TV stations are set to enjoy a nice windfall of political dollars that could easily top $3 billion, setting up this election year to be the most expensive yet.
While the Ninth Circuit struck down the ban on political and public issue advertising, it upheld a ban on for-profit ads, agreeing with the government that commercial ads could influence and alter the educational programming offered by public stations.
"Public issue and political speech in particular is at the very core of the First Amendment's protection….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," wrote Judge Carlos Bea in his majority opinion.
The Minority Television Project, a nonprofit California corporation that operates public station KMTP-TV in San Francisco, brought the case. In 2003, the Federal Communications Commission fined the station $10,000 for airing promotional messages from companies such as State Farm and Chevrolet. The station paid the fine but challenged it in court.
The federal government will likely seek a rehearing of the case before the Ninth Circuit, either from the same panel or from from a larger panel of judges, especially in this case, where there was a dissent, said Bob Corn Revere, a partner with Davis Wright Tremaine who specializes in First Amendment law. In the broadcast indecency cases, the government sought a rehearing first before appealing to the Supreme Court.
"Typically the federal government feels duty-bound to seek Supreme Court review. It's the rare exception when they don't. It's also likely the court will take the case," said Revere.
But until the government seeks review (it has a 90-day window to respond), public radio and TV stations, even those outside the Ninth Circuit, could go ahead and accept political advertising without fear of FCC enforcement. "Quite often in cases like this, the FCC will refrain from enforcing nationwide until it is resolved," Revere said.
Public stations should avoid the temptation to take political ads because it will fundamentally alter the viewer experience, said Free Press, a public interest group. "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," said Craig Aaron, the group's president and CEO.
The FCC declined comment.