No adequate reason to ban political and issue ads on pubcasting, appeals court rules

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A federal appeals court in San Francisco today upheld the law banning for-profit goods-and-services ads on pubcasting stations but threw out the restrictions on issue-oriented and political ads.

A three-judge panel of the Ninth Circuit Court of Appeals voted 2-1 for the mixed verdict in a First Amendment case brought by Minority Television Project, longtime licensee of noncommercial San Francisco station KMTP-TV. The FCC had fined KMTP in 2003 after it illegally aired commercials for goods and services 1,900 times between 1999 and 2002, the appeals court said.

The court accepted the government’s traditional argument that goods-and-services advertising would harm public stations’ programming by boosting their incentive to reach bigger audiences. But the judges said Congress violated the First Amendment by restricting ads about public issues and political candidacies without showing how the ads would damage programming.

Even if political candidates could buy time to run cartoons of themselves as superheroes, “the possibility that such cartoons would replace Sesame Street anytime soon seems quite remote,” Judge Carlos T. Bea speculated in the opinion. Judge John T. Noonan concurred.

They said Congress had cited no evidence indicating that political advertising would harm pubcast programming.

In his dissent, Judge Richard A. Paez said he couldn’t see a tenable reason for permitting political ads while blocking consumer goods ads. After decades of protection from commercial pressures, public broadcasting could be jeopardized by the ruling, Paez wrote.

The decision directly affects only the nine Western states in the Ninth Circuit. The text is posted online.

The decision “leaves open many important questions as to how to implement it,” writes attorney Clifford M. Harrington on the Pillsbury CommLaw Center blog.

Craig Aaron, president of the media reform group Free Press, said the regulatory pullback could lead to the on-air pollution of public stations. “At a time when people are turning to public broadcasting to get away from the flood of nasty attack ads, viewers don’t want to see Sesame Street being brought to them by shadowy Super PACs.” Free Press also posted an online petition asking the public to “Tell PBS and NPR to keep their stations free of nasty attack ads.”

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