Coming soon: Political ads on public radio/TV

It had to happen sooner or later — political ads on public radio and TV.

The Ninth Circuit Court of Appeals has ruled 2-to-1 that the Federal Communications Commission violated the First Amendment’s free speech clause by blocking public broadcasters from running political and public issue ads.

The federal government has a very narrow definition of what commercials — fine, we’ll call them “underwriting announcements” — are allowed by public broadcasters. In today’s rulling, the court did not strike them all down.

But the court clearly was mindful of the relationship between commercial advertising sales and lousy programming:


As previously discussed, we accept Congress’s conclusion that commercial advertisers seek the largest audience possible, and that, were public broadcast stations permitted to transmit commercial advertisements without restriction, such stations would seek to make themselves more attractive to advertisers by broadcasting programs with mass-market appeal. But neither logic nor evidence supports the notion that public issue and political advertisers are likely to encourage public broadcast stations to dilute the kind of noncommercial programming whose maintenance is the substantial interest that would support the advertising bans.

But the court doubted an effect on programming by allowing public issue advertising:


The government’s evidence in this case shows only the size and effect of one class of advertising: traditional commercial advertising. That is the content of speech proscribed in subsection § 399b(a)(1), which proscription we today hold passes “intermediate scrutiny” and which we uphold. 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.” Turner I, 512 U.S. at 664. Thus, we strike down as unconstitutional subsections 399b(a)(2) and (a)(3).

In a concurring opinion, a justice seemed to suggest public broadcasting isn’t the “special” form of media it once was…


With the rapid flux of technologies transmitting television, there have come new forms of television that do not require use of the narrow spectrum employed by broadcast television. These new forms — cable, satellite, cell phone, the Internet and the iPad — have introduced a variety of ways of communicating on television and call at least for a new look at the government’s substantial role in licensing and regulating speech on broadcast television.

But in a dissent, a justice says political advertising poses a bigger threat to public broadcasting than the commercial advertising that remains banned:


As described above, nonprofit announcements on public broadcasts are virtually negligible, and could easily be swamped by the very large market for political advertising. Congress could have reasonably feared the corrosive impact of advertising in general, but viewed non-profit advertisements as harmless to the public interest mission of public broadcasting.8 In addition, while Congress has long sought to shield public broadcasting from political influences, there is no evidence that Congress has viewed non-profit entities as a harmful outside influence. As Ozier’s declaration makes clear, the content and quantity of non-profit advertising do not pose the same sort of threat to public broadcasting’s financial model as other sorts of advertisements.

Reuters has the reaction:


Jeffrey Silva, a telecommunications analyst at Medley Global Advisors, said the decision could help ease the scramble that public broadcasters often face to raise money, but at a cost.

“You can almost see with some of them that are very much vested in keeping public television’s educational, nonpartisan nature intact that this could be kind of a complicating factor,” he said. “You can envision where public TV does not look like it traditionally had. It suddenly becomes a different animal.”

Norman Ornstein, resident scholar at the American Enterprise Institute, said the decision could “fundamentally change the character of public television and radio” by allowing deep-pocketed political and other organizations to begin “swooping” onto the public airwaves to air their messages.

“This is just going to move us further away from what remains of a public square,” said Ornstein, who said he served on PBS’ board for six years. “To be truthful, it scares me to death.”

Here’s the full opinion.