On April 18, 2014, Atlantic Legal filed a brief in Minority Television Project Inc. v. FCC, which involves an important First Amendment question relating to outdated restrictions on political speech in broadcast media.
The Ninth Circuit issued an en banc ruling that greatly limits the rights of public TV and radio broadcasters nationwide, relying on a 45-year old ruling in Red Lion Broadcasting v. FCC (1969).
The Ninth Circuit upheld a federal law prohibiting corporate and campaign advertising on public radio and television and ruled that the government has a substantial interest in imposing advertising restrictions to preserve the essence of public broadcast programming and that Congress recognized that advertising would change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting.
Minority Television Project Inc., a California nonprofit group operates the public television station KMTP in Palo Alto, California, many of whose broadcasts and announcements are in Asian languages, sued the Federal Communications Commission after it was fined $10,000 by the FCC for allegedly broadcasting ads.
Federal law bans broadcasters from airing paid ads for political candidates, issue advocacy and corporations on public radio and TV. The law allows programming suppliers such as National Public Radio to broadcast messages by corporate sponsors, however. The station claimed the ban on ads violates its right to free speech.
The Ninth Circuit en banc majority rejected arguments that broadcast speech should receive the same deference that the U.S. Supreme Court gave to speech related to elections in its 2010 Citizens United ruling that allowed corporations and unions to spend unlimited sums on political campaigns. Citizens United was not about broadcast regulation; it was about the validity of a statute banning political speech by corporations.
TV and radio broadcasters are subject to greater regulation than any other form of media or speech. The outdated Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969) decision requires courts to apply a lax standard when scrutinizing restrictions on broadcasting. The Supreme Courts rationale in Red Lion was that the broadcast spectrum, then the primary means of long-range communication, was a scarce resource.
Even if that justification was valid 45 years ago, it is obsolete today given the explosion in new media such as cable and satellite TV and the internet. Over the years, however, the FCC has used this lower standard to justify wide-ranging restrictions on the free speech of broadcasters from obscenity rules to rules governing even the ownership of broadcast stations that never would pass muster if applied to other speech. The Ninth Circuit not only upheld this justification in general, but used it to rationalize relaxed scrutiny applicable to political speech in particular, despite the Supreme Courts recent command in Citizens United v. FEC, 558 U.S. 310 (2010).
The thrust of our brief, filed with Southeastern Legal Foundation and several other non-profits, primarily addressed the issue whether, in light of the Courts decision in Citizens United v. FEC, 558 U.S. 310 (2010), courts should apply strict scrutiny to bans on paid political messages that are broadcast, rather than rational basis review, or intermediate scrutiny, as in FCC v. League of Women Voters, 468 U.S. 363 (1984).
To view the Foundations brief, please click here.