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The next season of Downton Abbey on PBS won’t be interrupted by paid corporate advertisers.
On Monday, the 9th Circuit Court of Appeals ruled that Congress didn’t cross the First Amendment line in adopting a ban on for-profit goods and services advertising on public television.
Writing for eight of 11 judges at the 9th Circuit, Circuit Judge Margaret McKeown wrote, “In a classic case of ‘follow the money,’ Congress recognized that advertising would change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting.”
The appeal was brought by Minority Television Project, operator of San Francisco’s KMTP-TV, which was determined by the FCC to have violated advertising restrictions more than 1,911 times between 1999-2002 for making underwriting announcements on behalf of corporations such as Chevrolet, Ford and Korean Airlines. The station was fined $10,000 before it went to court.
In the ruling (read here), Judge McKeown applies the test of “intermediate scrutiny” under the First Amendment instead of “strict scrutiny” as Minority Television had wanted, and determines that the government had a substantial interest in imposing restrictions in order to “preserve the essence of public television.” The judge also found that the law was narrowly tailored to further those interests.
Judge McKeown wanted to go further.
When this case was first heard by the 9th Circuit, circuit judges rejected the part of the advertising ban that precluded public issue and political advertisements. It was deemed to be unconstitutional. The dispute was then heard en banc before a full panel of 9th Circuit judges. Writing in dissent, Judge McKeown believes that the public issue advertisements should be disallowed too, saying, “Substantial evidence before Congress supported its determination that the selling of airtime to political and issue advertisers, as with for-profit advertisers, would distort programming decisions.”
Ninth Circuit Chief Judge Alex Kozinski is on the other extreme.
Not only is he willing to overturn restrictions on political ads, he doesn’t think there’s any place in the U.S. Constitution for bans on paid corporate advertising. He attacks the application of intermediate scrutiny to broadcast restrictions.
“A standard that calls on us to distinguish among shades of gray provides scant protection to speech,” he writes. “The very indeterminacy of the standards 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.”
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