The First Amendment and Public Television Advertising: The Need for Clarity after Minority Television

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TABLE OF CONTENTS    I. Introduction  II. Background      A. Facts of the Case      B. Procedural History and Lower Court Opinions III. The Minority Television En Banc Opinions      A. The Majority      B. The Partial Concurrence and Dissent      C. The Dissent  IV. A Critique of the En Banc Ninth Circuit's Approach      A. Applicable First Amendment Law      B. Shortcomings o f the En Banc Ninth Circuit 's Opinion         1. The Full Range of Relevant First Amendment Interests         2. The Proper Rigor in an Intermediate Scrutiny Analysis         3. The Impact of Recent First Amendment Case Law      C. Other Implicated Questions   V. Conclusion 

I. INTRODUCTION

Seeking to liberalize its regulatory scheme of advertisements on public television, the Federal Communications Commission ("FCC") in 1981 did away with its long-standing prohibition of public television broadcasters airing any promotional content and adopted "the minimum regulatory structure that preserves a reasonable distinction between commercial and noncommercial broadcasting." (1) Congress followed by codifying the FCC's new regulatory framework at 47 U.S.C. sections 399a and 399b. (2) Section 399b specifically prohibits public television stations from airing three types of advertisements: for goods and services, regarding public issues, and supporting or opposing any political candidate. (3)

In 2006, Minority Television Project, Inc. ("Minority Television" or "Minority") brought suit, claiming these statutes and regulations were facially unconstitutional as abridging the First Amendment's protection of the freedom of speech. (4) The U.S. District Court for the Northern District of California upheld the laws, applying intermediate scrutiny and determining that the prohibitions were narrowly tailored to further the substantial governmental interest in preserving public broadcasting as a source of programming unavailable on commercial stations. (5)

On appeal, a sharply divided panel of the U.S. Court of Appeals for the Ninth Circuit upheld the ban on advertisements for goods and services, but struck down as unconstitutional the prohibitions on public issue and political advertisements. (6) Each judge on the panel wrote separately: Judge Bea wrote for the court, (7) Judge Noonan concurred in the judgment but disagreed strongly with Judge Bea's analysis and reasoning, (8) and Judge Paez dissented and would have upheld all the restrictions as constitutional. (9)

The Ninth Circuit then voted to accept the case for en banc review. (10) The en banc court reversed the panel and upheld the restrictions as constitutional. (11) Judge McKeown wrote for the court and seven other judges applying intermediate scrutiny and finding the three restrictions to be narrowly tailored to a substantial governmental interest. (12) Judge Callahan partially concurred and partially dissented. She would have upheld the ban on ads for goods and services, but would have struck down the ban on public issue and political ads. (13) Chief Judge Kozinski, joined by Judge Noonan, dissented. He would have held all the restrictions unconstitutional under the First Amendment. (14)

Generally, a content-based line between permitted and prohibited speech, like the one drawn in section 399b, would be heavily disfavored in our First Amendment law. (15) However, the Supreme Court has long accepted different standards of scrutiny for laws that regulate the broadcast medium due to the unique considerations and scarcity of spectrum. (16) Even operating within this unique analytical framework, the Ninth Circuit failed to adequately take into account three considerations: (1) the full range of relevant First Amendment interests, (2) the proper rigor needed in an intermediate scrutiny analysis, and (3) the impact of recent First Amendment case law, especially concerning issue and political advertisements.

This Comment critically evaluates the Ninth Circuit's opinions in Minority Television Project, Inc. …