By Robert Corn-Revere
A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment. The court left intact another provision that prohibits commercial advertising on public stations. The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored. At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.
Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.” The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.” The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations. Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires.” That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.
Judge John Noonan concurred in the result but disagreed that the commercial speech precedents applied. Rather, he wrote that “in this delicate and difficult field of rapid change, it would be hard to believe that the restrictions on political speech established by the statute over thirty years ago are constitutionally valid even if they met constitutional criteria when they were published.” Judge Richard Paez dissented and agreed with Judge Noonan that Discovery Network does not apply to a case assessing the constitutionality of broadcast regulation. He wrote that the law should be upheld under the standard articulated in League of Women Voters.
The one point on which all of the judges agreed was that intermediate scrutiny – not strict scrutiny – should be applied, even though the law imposed a content-based restriction on political speech. Judge Bea cited the network brief filed in FCC v. Fox Television Stations and ABC, Inc. and observed that “the Supreme Court itself may soon declare that the era of special broadcast exemption from strict scrutiny is over.” But he added, “that case has not yet been decided, “ and “just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today.”
Nevertheless, Judge Bea applied what he described as “a robust form of intermediate scrutiny” that calls for “judicial ‘wariness’ within the standard described” because the restrictions prohibited core political speech. Apart from some assertions made by the government, he found no evidence, either in the record or in the legislative history, to support the restrictions on issue and political advertising. Thus, he concluded, even under intermediate scrutiny, the government “cannot simply assert its way out of the ‘substantial evidence’ requirement of the First Amendment.
The FCC may seek rehearing by the Ninth Circuit panel or en banc, which is likely given the significance of the decision and the divided panel opinion. If the circuit court denies rehearing or upholds the panel decision, the FCC may seek review by the Supreme Court. It would be expected to do so in such circumstances, since the panel decision invalidated sections of a federal statute
In a separate unpublished opinion, the panel unanimously rejected the Minority Television Project’s argument that the statute is unconstitutionally vague. The court noted that a statute need not have “mathematical certainty” to survive a vagueness challenge, and that, in case of doubt about the law’s scope, the FCC’s rules allow for declaratory rulings for broadcasters who fear they might run afoul of Section 399b.