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The next time Downton Abbey appears on PBS, viewers could be in for a shock. The character of Robert Crawley might be giving a speech, only to be interrupted by an advertisement from a super PAC that questions why the Crawleys pay a lower nominal tax rate than their servants. Or maybe one of the characters will become unwillfully pregnant, as Ethel Parks (Amy Nuttall) did in the second season, before a commercial for Planned Parenthood comes on about the necessity of reproductive health services.
Sound like a stretch? Maybe not after a 9th Circuit Court of Appeals ruling Thursday, which struck down in part a federal law against public TV and radio stations accepting paid advertising. The ruling determined that the law (47 U.S.C 399b(a)(1)) could continue to prohibit commercials advertising corporate goods and services but not those that merely wanted to speak on matters of public interest and political topics. The majority opinion by 9th Circuit Judge Carlos Bea determined that the government hadn’t narrowly tailored its interest in preserving educational content on public airwaves to escape First Amendment scrutiny.
The challenge came from the Minority Television Project, operator of San Francisco’s KMTP-TV, a nonprofit focused on multicultural programming, which engaged in a kind of a mutiny against the federal laws against public TV stations taking advertising dollars. The FCC determined that Minority Television had violated the law 1,900 times between 1999-2002 and fined the station $10,000. The station paid up but then filed a lawsuit and then appealed a loss.
Faced with a challenge, the FCC warned about the ramifications of what would happen if public television accepted advertising. According to the decision:
“The government contends that if public broadcast stations were permitted to transmit paid commercial, public issue, and political advertisements, public broadcast stations would attempt to attract advertising dollars by replacing niche educational programming with programming of greater mass-market appeal. In turn, the distinction between public broadcast and commercial stations would be blurred — and the breadth of quality educational and other noncommercial programming on public broadcast stations would be reduced.”
Judge Bea rejects this conclusion, at least when it comes to advertising that’s devoted to matters of public interest.
“It is easy to see how the ban on commercial advertisements in subsection 399b(a)(1) is narrowly tailored to further the governmental interest in preserving such niche programming,” he writes in his opinion. “But the connection between a ban on public issue and political advertisements and the interest of promoting niche programming is, to put it generously, tenuous — and a tenuous connection is not enough to survive intermediate scrutiny.”
The judge gives an example, and we’ll note it’s always fun when justices pretend they are TV programmers. Here, Bea wonders what type of programming might be put up to attract political ad buys and conjures the image of presidential candidates alongside superheroes.
“At the outer reaches of one’s imagination, perhaps, lies a potential Saturday morning cartoon featuring an appearance by President Obama or candidate Romney, Santorum, Paul or Gingrich, wherein the political personality appears in the episode to fight crime alongside Superman or Batman. It is true that such cartoon would be more likely to exist on a station where the particular candidate is able to run a 30-second political advertisement before and after his world-saving derring-do than on a station where such advertisements are prohibited. But the possibility that such cartoons will replace Sesame Street anytime soon seems quite remote. At best, it is pure speculation, which was never mentioned before Congress. Upholding the ban on public issue and political advertising requires more than speculation.”
The judge is skeptical about the government’s case that political advertisers are no less capable of exerting influence on programmers than commercial advertisers, asking, where’s the evidence there? Without it, the government can’t support its contention that the supposedly content-neutral regulation was narrowly tailored to serve a compelling interest. And thus, it fails the First Amendment.
The decision could impact the types of ads on public television. For instance, the FCC once gave a pass to an Indiana public station that ran a commercial from Planned Parenthood that promoted “confidential, affordable reproductive health services,” but it warned against an ad that supported or opposed a political candidate for office. Now that the law has been overturned by the 9th Circuit, the leash on groups like Planned Parenthood seems to have come off. Of course, it’ll still be up to individual stations to decide whether to accept advertising, and the opinion doesn’t get into such issues as cost and all the arcane rules there.
It’s also possible that the Supreme Court’s coming decision on indecency in television could impact the topic. On Wednesday, Bea noted that case currently under review, saying, “The Supreme Court itself may soon declare that the era of special broadcast exemption from strict scrutiny is over.” But he added that it was too soon to go there. “Just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today,” Bea said.
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