Title: The First Amendment and Public Television Advertising: The Need for Clarity after Minority Television
Abstract: TABLE OF CONTENTS I. Introduction II. Background A. Facts of Case B. Procedural History and Lower Court Opinions III. The Minority En Banc Opinions A. The Majority B. The Partial Concurrence and Dissent C. The Dissent IV. A Critique of En Banc Ninth Circuit's Approach A. Applicable First Amendment Law B. Shortcomings o f 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, 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 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 Project, Inc. (Minority Television or Minority) brought suit, claiming these statutes and regulations were facially unconstitutional as abridging First Amendment's protection of freedom of speech. (4) The U.S. District Court for Northern District of California upheld laws, applying intermediate scrutiny and determining that prohibitions were narrowly tailored to further substantial governmental interest in preserving public broadcasting as a source of programming unavailable on commercial stations. (5) On appeal, a sharply divided panel of U.S. Court of Appeals for Ninth Circuit upheld ban on advertisements for goods and services, but struck down as unconstitutional prohibitions on public issue and political advertisements. (6) Each judge on panel wrote separately: Judge Bea wrote for court, (7) Judge Noonan concurred in judgment but disagreed strongly with Judge Bea's analysis and reasoning, (8) and Judge Paez dissented and would have upheld all restrictions as constitutional. (9) The Ninth Circuit then voted to accept case for en banc review. (10) The en banc court reversed panel and upheld restrictions as constitutional. (11) Judge McKeown wrote for court and seven other judges applying intermediate scrutiny and finding three restrictions to be narrowly tailored to a substantial governmental interest. (12) Judge Callahan partially concurred and partially dissented. She would have upheld ban on ads for goods and services, but would have struck down ban on public issue and political ads. (13) Chief Judge Kozinski, joined by Judge Noonan, dissented. He would have held all restrictions unconstitutional under First Amendment. (14) Generally, a content-based line between permitted and prohibited speech, like one drawn in section 399b, would be heavily disfavored in our First Amendment law. (15) However, Supreme Court has long accepted different standards of scrutiny for laws that regulate broadcast medium due to unique considerations and scarcity of spectrum. (16) Even operating within this unique analytical framework, Ninth Circuit failed to adequately take into account three considerations: (1) full range of relevant First Amendment interests, (2) proper rigor needed in an intermediate scrutiny analysis, and (3) impact of recent First Amendment case law, especially concerning issue and political advertisements. This Comment critically evaluates Ninth Circuit's opinions in Minority Project, Inc. …
Publication Year: 2014
Publication Date: 2014-04-01
Language: en
Type: article
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