Unless the U.S. Supreme Court intervenes, you will not be hearing political advertisements on public radio or TV anytime soon.
The 9th Circuit Court of Appeals on Monday upheld the decades-old ban against political ads on public broadcasting stations, NPR reported. It ruled in the case of a San Francisco-area public broadcaster that was fined $10,000 for airing aids for Chevrolet, State Farm and other companies.
How public broadcasting makes money and what it can’t do to raise it is becoming an even more emotional topic within the industry and among listeners and viewers as threats to public funding increase. That point was driven home by the fact two judges on the appeals panel issued separate opinions on the issue, and whether public broadcasters have a First Amendment right against the restrictions.
They don’t, the majority ruled, noting that listeners and viewers have a right to receive programming that’s different from what commercial broadcasters provide.
One of the major themes in the evidence before Congress was that advertising distorts programming decisions because advertisers have something to sell—be it a product, message, or candidate—and they want to sell it to the largest audience possible.
Representative Robert Matsui, a former member of the Communications Subcommittee, explained that the “principal thrust of commercial broadcasting . . . is controlled by its need to reach mass audiences in order to sell products.
While this mass approach is definitely a valid purpose, commercial broadcasting is unable thereby to respond to the myriad of individual needs of any community. . . . It simply does not possess the programming flexibility to tailor shows to serve the numerous characteristics of each community.”
“More than thirty years since (the ban) was enacted,” Judge M. Margaret McKeown wrote in her opinion, “the continuing differences between public broadcasting and commercial broadcasting are a testament to the statute’s success in promoting Congress’s purpose.”
It suggested the issue is a debate for the very soul of public broadcasting. “Congress was trying to prevent the commercialization of public broadcasting itself, not simply advertisements by commercial businesses,” McKeown said, insisting that money distorts programming. “Advertisers also seek programming that is consistent—or at least not contrary to—their messages and values, or the values of their customers or constituencies,” she said.
That drew a rebuke from Chief Judge Alex Kozinski who criticized the majority of judges for “deferring” First Amendment questions to Congress.
But the First Amendment isn’t self-executing; it depends on the vigilance of judges in scrutinizing the multitude of prohibitions, restrictions, burdens and filters that government—federal, state and local—constantly seeks to impose on speech and the press.
The essence of First Amendment vigilance is skepticism, not deference. Governments always have reasons for the things they do and, for the most part, we accept those reasons as valid, even if they’re not entirely persuasive. But prohibitions on speech are different.
Whether we engage in strict scrutiny, which applies to most forms of speech, or intermediate scrutiny, which my colleagues believe applies here, we don’t uphold restrictions on speech if the government’s reasons do not, at the very least, make sense.
Judge Kozinski called the court’s decision “mushy and toothless,” and suggested the court ignored broadcasters’ right to broadcast what they want because they like public radio and TV.
The very indeterminacy of the standard enables—nay, encourages—judges to apply their own values. Speech that judges like gets protected, and speech that judges don’t like gets the back of the hand. And judges like public radio and television, while pretty much nobody likes commercials. It’s hardly a fair fight, which is why I believe it’s time to reconsider the applicability of intermediate scrutiny to broadcast restrictions.
Kozinski said at Congressional hearings leading to the ban on political advertising, “no one explained, much less provided evidence, how allowing stations to accept paid advertising from politicians would make them subject to influence by those politicians. No one said a word about influence by organizations that sponsor issue ads.”
These are certainly weighty concerns, but what’s remarkable about the testimony presented to Congress is that they are nothing but concerns.
The legislative record contains no documentation or evidence; there are no studies, no surveys, no academic analyses—nothing even as meaty as the rather anemic expert reports introduced by the government in our case. Sure, a lot of people worried that commercial advertising would wreck public broadcasting, but people worry about a lot of things that never come to pass.
What’s more, we know for a fact that some of the witnesses who testified before Congress in 1981 were wrong. Three of the witnesses, each of whom was worried sick about the potentially catastrophic effects of commercialization on public broadcast stations, also made dire predictions about the pernicious use of logograms.
Oy vey! Congress nevertheless adopted that provision, and logograms have been in use in public broadcasting for over a quarter of a century. And, know what? The Cassandras were wrong; public broadcasting as we know and love it has survived just fine—perhaps a tad better, as underwriting, including logograms, generates much-needed revenue for public broadcasting.
“I would set public television and radio free to pursue its public mission to its full potential. We’d all be better off for it,” Kozinski said.