Minority Television Project, Inc. v. Federal Communications Commission

A federal statute, 47 U.S.C. § 399b prohibits public broadcast radio and television stations 1 from transmitting over the public airways: 1) advertisements for goods and services on behalf of for-profit entities, 2) advertisements regarding issues of public importance or interest (“public issues”), and 3) political advertisements. 47 U.S.C. § 399b(a). The statute is therefore a content-based ban on speech: public broadcasters may transmit many types of speech, but, unlike most other stations, they may not transmit those three classes of advertising messages. Plaintiff-Appellant Minority Television Project, a public broadcaster, contends that this ban violates the First Amendment. Applying intermediate scrutiny, we uphold the ban on the transmission of advertisements for goods and services by for-profit entities, but we strike down as unconstitutional the ban on public issue and political advertisements.

I. Facts and Prior Proceedings

Appellant Minority Television Project is a nonprofit California corporation which operates the San Francisco television station KMTP-TV. KMTP-TV focuses on what it describes as “multicultural programming,” and it airs a wide variety of…

concurring in the judgment:

Broadcast speech is protected by the First Amendment, but it has characteristics that distinguish it from most other forms of speech. Intermediate scrutiny must be applied to this modern medium unknown to the framers of the Constitution. FCC v. League of Women Voters, 468 U.S. 364, 380 , 104 S.Ct. 3106 , 82 L.Ed.2d 278 (1984). Broadcast speech, as it now exists, came into existence by the allocation by the government of space on the spectrum of frequencies for broadcasting. It is therefore licensed by the government. Of course, the government might have abstained from allocating frequencies, as it did before 1927. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375-76 , 89 S.Ct. 1794 , 23 L.Ed.2d 371 (1969). That road was not followed. Without effective challenge, the government took charge and rationed the frequencies. Broadcast television, as it exists today, exists as it does because the government has been a shaper of it. Speech by license of the government presents a formidable paradox in application of the First Amendment.

The appellant is licensed by the government as a not-for-profit broadcaster. It is authorized by license pursuant to 47 C.F.R.…

dissenting:

I agree with Judge Bea’s conclusions, contained in Part III of his opinion, that substantial evidence supports Congress’s determination that advertising by for-profit entities on public broadcast stations poses a real harm, and that 47 U.S.C. § 399b(a)(l) does not burden substantially more speech than necessary to further the government’s legitimate interest. However, as I explain in greater detail below, I agree neither with Judge Bea’s analytical approach, nor with his conclusion that § 399b(a)(2) and (3) impose an unconstitutional, content-based restriction on speech. Accordingly, I respectfully dissent.

For almost sixty years, noncommercial public broadcasters have been effectively insulated from the lure of paid advertising. The court’s judgment will disrupt this policy and could jeopardize the future of public broadcasting. I am not persuaded that the First Amendment mandates such an outcome. In my view, § 399(a)(2) and (3) satisfy the scrutiny standard set forth in F.C.C. v. League of Women Voters, 468 U.S. 364 , 104 S.Ct. 3106 , 82 L.Ed.2d 278 (1984). I therefore disagree with Judge Bea’s heavy reliance on a commercial speech case, City of Cincinnati v.…

Walter E. Diercks, Rubin, Winston, Diercks, Harris & Cooke LLP, Washington, DC, for the plaintiff-appellant.

Mark B. Stern, United States Department of Justice, Civil Division, Appellate Staff, for the defendants-appellees.

Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Concurrence in Judgment by Judge NOONAN; Dissent by Judge PAEZ.

BEA, Circuit Judge:

A federal statute, 47 U.S.C. § 399b prohibits public broadcast radio and television stations [1] from transmitting over the public airways: 1) advertisements for goods and services on behalf of for-profit entities, 2) advertisements regarding issues of public importance or interest ("public issues"), and 3) political advertisements. 47 U.S.C. § 399b(a). The statute is therefore a content-based ban on speech: public broadcasters may transmit many types of speech, but, unlike most other stations, they may not transmit those three classes of advertising messages. Plaintiff-Appellant Minority Television Project, a public broadcaster, contends that this ban violates the First Amendment. Applying intermediate scrutiny, we uphold the ban on the transmission of advertisements for goods…