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Court Upholds Ban On Noncom Ads

A federal appeals court has upheld the advertising ban on noncommercial broadcasting, but with the court's chief judge dissenting.

The full panel of the U.S. Court of Appeals for the Ninth Circuit upheld a California District Court ruling upholding the FCC's prohibition on paid ads for for-profit entities, issue ads and political ads (the FCC allows nonprofits to advertise on noncoms).

In denying the challenge by noncommercial broadcaster Minority Television Project, the court found that  "the government has a substantial interest in imposing advertising restrictions in order to preserve the essence of public broadcast programming."

The court also concluded that the ban was not an unconstitutional abridgement of speech, citing historic rationales of scarcity and intrusiveness (Supreme Court decisions in the Pacifica and Red Lion cases) for its deference to government regulation of broadcast content.

It said the ban was narrowly tailored to address the harms Congress sought to prevent and did not affect speech that did not undermine that goals of the statute, which was to preserve the noncommercial, educational nature of the service.

The court rejected the argument that the statute was overinclusive because it prohibited political and issue advertising, or underinclusive because it allowed non-profit paid ads, instead saying Congress and the FCC had struck a justifiable balance.

In his dissent, Chief Judge Alex Kozinski said that those arguments, which date from a very different, decades-old marketplace, no longer carry any force.

He conceded it was a "fine point" as to whether "inferior courts" were "bound by Supreme Court decisions that the court itself hasn't yet bothered to overrule, but whose rationale has been decimated by intervening developments."

but he also pointed out that in another case, the circuit had defied a six-decade-old Supreme Court precedent and dozens of other lower courts, after which the Supreme Court granted cert on a challenge and unanimously affirmed the decision. "So, I guess the lesson is, we must not get ahead of the Supreme Court, unless we're right."

Kozinski made short work of complaints that allowing commercial ads on noncoms would destroy the "essence" of the noncommercial medium. He points out that Congress' move to restrict the ads stemmed in part from the fact that "a lot of people worried that commercial advertising would wreck public broadcasting." [B]ut people worry about a lot of things that never come to pass, he said. "[If]f we're conducting some level of heightened scrutiny [which speech issues demand], not merely rational basis review, we should insist on something more than a bunch of talking heads bloviating about their angst."

Kozinski said that had it been up to him he would have struck down the ban as unconstitutional, reversed the lower court with instructions to grant summary judgment in favor of the plaintiff, and "set public television and radio free to pursue its public mission to its full potential. We'd all be better off for it."