Ninth Circuit upholds advertising ban in public broadcasting

In an opinion released this week, the Ninth Circuit Court of Appeals has upheld broad restrictions on advertising in public broadcasting, including over-the-air student-run broadcast stations. The en banc decision reversed last year’s decision by a panel of three judges in the same court.

Advertising “posed a threat to the noncommercial, educational nature of noncommercial educational programming” on public broadcast stations, Judge M. Margaret McKeown wrote in Monday’s majority opinion.

The chief judge of the circuit, Alex Kozinski, vigorously dissented. In an opinion joined by Judge John T. Noonan, Kozinski said the majority opinion was overly deferential to the FCC’s justifications for restricting broadcasters’ speech: “[W]e can’t just trot out all of the reasons the government advances in support of the regulation and salute.” He mocked the evidence that advertising would threaten the nature of public broadcasting as “a bunch of talking heads bloviating about their angst.”

Last year, a panel of judges in the same court ruled the government could ban commercial, but not political or issue-oriented, advertising. The federal government appealed. The new ruling reinstates the ban as to political/issue ads as well as commercial ads.

Minority TV, a public broadcasting station in San Francisco, first challenged the ban when it was fined by the FCC for airing paid content. The station claimed the ban violated the First Amendment, but later paid the fine in full.