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Ninth Circuit strikes down ban on political ads on public television

The US Court of Appeals for the Ninth Circuit [official website] on Wednesday struck down [text. PDF] parts of a federal statute that prohibit public broadcasters from transmitting public issue and political advertisements. The suit was brought by the Minority Television Project on behalf of its public television station KMTP [official website] against the Federal Communications Commission (FCC) [official website] after the FCC fined KMTP $10,000 for broadcasting paid promotional messages from for-profit companies. KMTP claimed that the ban and resulting fine impaired their First Amendment right to free speech [Cornell LII backgrounder]. The FCC alleged that KMTP violated 47 USC § 399b [text], which bars public broadcasters from transmitting messages for compensation for (1) for-profit entities, (2) the expression of personal views, and (3) political messages supporting candidates. The trial court upheld all of the prohibitions. In this opinion, the Ninth Circuit upheld the provision prohibiting for-profit messages, but held the other provisions to be unconstitutional. They said:

The government's evidence in this case shows only the size and effect of one class of advertising: traditional commercial advertising. ... But the government cannot point to evidence that its fear of harm to public television that would come from allowing stations to air public issue and political advertisements is "real, not merely conjectural," much less that the portions of the statute which ban such political and public issue advertisements "alleviate those harms in a direct and material way."
In reaction to the ruling, some commentators noted that this may fundamentally change public broadcasting [Reuters report] and cause broadcasters to abandon educational and public interest program in favor of content with broader appeal to attract advertisers.

This ruling is also of particular importance in the wake of the Citizens United v. Federal Election Commission [Cornell LII backgrounder] decision issued by the Supreme Court [official website] in January 2010. In that case, the Court eased restrictions on political campaign spending by corporations. Shortly after Citizens United, in March 2010, the US Court of Appeals for the District of Columbia Circuit [official website] unanimously ruled [JURIST report] that limiting contributions from individuals to independent political advocacy organizations was unconstitutional. These decisions have led to significant increases in political message spending.

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