Minority Television Project, I v. FCC ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINORITY TELEVISION PROJECT, No. 09-17311
INC.,
Plaintiff-Appellant, D.C. No.
3:06-cv-02699-
v. EDL
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF OPINION
AMERICA,
Defendants-Appellees,
and
LINCOLN BROADCASTING COMPANY,
Intervenor.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted En Banc
March 19, 2013—San Francisco, California
Filed December 2, 2013
Before: Alex Kozinski, Chief Judge, and John T. Noonan,
Barry G. Silverman, M. Margaret McKeown, Kim McLane
Wardlaw, William A. Fletcher, Ronald M. Gould, Marsha
S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan
and Andrew D. Hurwitz, Circuit Judges.
2 MINORITY TELEVISION PROJECT V. FCC
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Callahan;
Dissent by Chief Judge Kozinski
SUMMARY*
Public Television
The en banc court affirmed the district court’s summary
judgment in favor of the government in an action brought by
a public television broadcaster challenging, on First
Amendment grounds, 47 U.S.C. § 399b, which prohibits
public radio and television stations from transmitting paid
advertisements for for-profit entities, issues of public
importance or interest, and political candidates.
Applying intermediate scrutiny, the court upheld the
advertising ban as constitutional. The panel concluded that
substantial evidence before Congress supported the
conclusion that the advertising prohibited by § 399b posed a
threat to the noncommercial, educational nature of
noncommercial educational programming and that additional
evidence bore out Congress’s predictive judgment in enacting
§ 399b. The court held that the government has a substantial
interest in imposing advertising restrictions in order to
preserve the essence of public broadcast programming. The
court further held that § 399b’s restrictions were narrowly
tailored to the harms Congress sought to prevent and that the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MINORITY TELEVISION PROJECT V. FCC 3
restrictions left untouched speech that did not undermine the
goals of the statute.
The court rejected the assertion that the § 399b was
overinclusive because it prohibited political and issue
advertising and underlinclusive because it permitted
advertising by non-profit entities. Finally, the court affirmed
the district court’s dismissal of the as-applied challenges to
§ 399b and its challenge to the related regulation, 47 C.F.R.
§ 73.621(e), on the grounds that jurisdiction over challenges
to Federal Communication Commission orders lies
exclusively in the court of appeals; as such, federal district
courts lack jurisdiction over appeals of such orders.
Concurring and dissenting, Judge Callahan stated that she
concurred in the majority’s opinion only insofar as it upholds
47 U.S.C. § 339(b)’s prohibition against paid advertisements
by for-profit entities. She dissented from the majority’s
acceptance of § 339(b)’s prohibition of advertisements on
issues of public importance or interest and for political
candidates.
Dissenting, Chief Judge Kozinski, with whom Judge
Noonan joined, stated that he would strike down as
unconstitutional the statute and corresponding regulations
that prohibit public broadcast stations from carrying
commercial, political or issue advertisements. Chief Judge
Kozinski stated that the evidence presented by the
government in support of these speech restrictions doesn’t
pass muster under any kind of serious scrutiny, and that even
if intermediate scrutiny applies there is simply not enough
there to satisfy a skeptical mind that the reasons advanced are
rational, let alone substantial.
4 MINORITY TELEVISION PROJECT V. FCC
COUNSEL
Walter Elmer Diercks (argued), Rubin, Winston, Diercks,
Harris & Cooke, LLP, Washington, D.C.; John L. Fitzgerald,
Pinnacle Law Group, San Francisco, California, for Plaintiff-
Appellant.
Mark B. Stern (argued) and Samantha L. Chaifetz, Attorneys,
Appellate Staff, United States Department of Justice, Civil
Division, Washington, D.C.; Joseph P. Russoniello, United
States Attorney; Tony West, Assistant Attorney General;
Austin C. Schlick, General Counsel, Jacob M. Lewis, Acting
Deputy General Counsel, Joel Marcus, Attorney, and
Maureen K. Flood, Attorney, Federal Communications
Commission, Washington, D.C., for Defendants-Appellees.
Joyce Slocum and Gregory Allan Lewis, National Public
Radio, Inc., Washington, D.C.; Katherine Lauderdale and
Thomas Rosen, Public Broadcasting Service, Arlington,
Virginia, for Amici Curiae National Public Radio, Inc., and
Public Broadcasting Service.
OPINION
McKEOWN, Circuit Judge:
Public television—a fixture of American life for
decades—has showcased Masterpiece Theater, PBS
NewsHour, children’s programs such as Sesame Street and
Curious George, and many more audience favorites.
The hallmark of public broadcasting has been a long-
standing restriction on paid advertising to minimize
commercialization. In a classic case of “follow the money,”
MINORITY TELEVISION PROJECT V. FCC 5
Congress recognized that advertising would change the
character of public broadcast programming and undermine
the intended distinction between commercial and
noncommercial broadcasting.
Public broadcast radio and television stations are
regulated by federal statute. Under 47 U.S.C. § 399b, public
stations are prohibited from transmitting paid advertisements
for for-profit entities, issues of public importance or interest,
and political candidates. These restrictions were adopted to
minimize commercialization of public broadcast stations, also
known as noncommercial educational (“NCE”) stations
because they are “used primarily to serve the educational
needs of the community; for the advancement of educational
programs; and to furnish a nonprofit and noncommercial
television broadcast service.” 47 C.F.R. § 73.621.
Minority Television Project (“Minority TV”), a public
television broadcaster, challenges the advertising restrictions
as facially unconstitutional under the First Amendment.
Applying intermediate scrutiny, as counseled by the Supreme
Court in FCC v. League of Women Voters, 468 U.S. 364(1984), we uphold the advertising ban as constitutional. We
also affirm the district court’s dismissal of Minority TV’s as-
applied challenges to § 399b and its challenge to the related
regulation, 47 C.F.R. § 73.621(e).
BACKGROUND
I. NONCOMMERCIAL EDUCATIONAL STATIONS
For three-quarters of a century, the Federal
Communications Commission (“FCC”) has set aside
broadcasting channels for noncommercial educational
6 MINORITY TELEVISION PROJECT V. FCC
stations. See 3 Fed. Reg. 364 (Feb. 9, 1938) (reserving
channels for NCE FM radio stations); Sixth Report & Order,
41 F.C.C. 148, 158–59 (1952) (reserving channels for NCE
television stations); see also 47 U.S.C. § 303 (a)–(b)
(authorizing the FCC to classify radio stations and
“[p]rescribe the nature of the service to be rendered by each
class of licensed stations”). The FCC explained that it was
reserving a portion of the broadcast spectrum for NCE
television stations because of “the important contributions
which noncommercial educational television stations can
make in educating the people both in school—at all
levels—and also the adult public,” and the “high quality type
of programming” available on NCE stations—“programming
of an entirely different character from that available on most
commercial stations.” Third Notice of Further Proposed
Rulemaking, 16 Fed. Reg. 3072, 3079 (1951).
From the start, the FCC recognized that allowing NCE
stations to “operate in substantially the same manner as
commercial applicants” would not further its goal of ensuring
high quality educational programming. 41 F.C.C. at 166
(1952). Initially, NCE stations were prohibited from airing
any promotional content—even if it was unpaid—and were
only permitted to identify program underwriters by name.
See 17 Fed. Reg. 4062 (1952); Commission Policy
Concerning the Noncommercial Nature of Educational
Broadcast Stations, 86 F.C.C. 2d 141, 142, 154 (1981).
In response to concerns that this restriction was broader
than necessary to achieve its purpose, the FCC embarked on
an extensive notice and comment proceeding between 1978
and 1981. See 86 F.C.C. 2d at 141; Commission Policy
Concerning the Noncommercial Nature of Educational
Broadcast Stations, 90 F.C.C. 2d 895, 909 (1982). The FCC
MINORITY TELEVISION PROJECT V. FCC 7
undertook this effort “with an eye toward striking a
reasonable balance between the financial needs of such
stations and their obligation to provide an essentially
noncommercial broadcast service.” 86 F.C.C. 2d at 141. In
crafting new rules, the FCC noted that its “interest in creating
a ‘noncommercial’ service has been to remove the
programming decisions of public broadcasters from the
normal kinds of commercial market pressures under which
broadcasters in the unreserved spectrum usually operate.” Id.
at 142. Cognizant of First Amendment concerns, the FCC
stated that it was adopting “the minimum regulatory structure
that preserves a reasonable distinction between commercial
and noncommercial broadcasting.” Id. at 144. At the end of
lengthy deliberation, the FCC in 1981 set out a new,
liberalized broadcast advertising framework. Id. Later that
year, after two days of hearings,1 Congress essentially
codified the FCC’s new framework in 47 U.S.C. §§ 399a and
399b.2
1
Hearings before the Subcomm. on Telecomms, Consumer Protection,
and Finance of the H. Comm. on Energy and Commerce on H.R. 3238 and
H.R. 2774, 97th Cong. (1981) (hereinafter “H. Hgs.”). H.R. 3238 (“The
Public Broadcasting Amendments Act of 1981”) was passed by the House,
but § 399a and § 399b, along with the rest of the Public Broadcasting
Amendments Act of 1981, were enacted as part of the Omnibus Budget
Reconciliation Act of 1981. Pub. L. No. 97-35, 95 Stat. 357 (1981). We
look to the legislative history of H.R. 3238 for the record before Congress
when it enacted § 399b.
2
There were two minor differences between the FCC’s framework and
the enacted statutes. The FCC prohibited all goods and services
advertising for which consideration was received, but § 399b prohibits
such advertising by for-profit entities only. Section 399a also differs
somewhat from the FCC’s treatment of donor acknowledgments.
90 F.C.C. 2d at 901–02.
8 MINORITY TELEVISION PROJECT V. FCC
Section 399b—the heart of this case—prohibits paid
advertising, except for advertising for goods and services
offered by non-profit organizations. An “advertisement” is
defined as material transmitted in exchange for remuneration
that is intended:
(1) to promote any service, facility, or product
offered by any person who is engaged in such
offering for profit;
(2) to express the views of any person with
respect to any matter of public importance or
interest; or
(3) to support or oppose any candidate for
political office.
§ 399b(a). Section 399b allows the airing of promotional
content for which consideration is not received. Section
399a, which is not at issue here, permits the use of non-
promotional identifying information in donor
acknowledgments (for example, logograms and location
information). This scheme has been the law for more than 30
years.
II. MINORITY TV PROCEEDINGS
Minority TV is the licensee of a noncommercial
educational television station in San Francisco subject to the
advertising restrictions in 47 U.S.C. § 399b and 47 C.F.R.
§ 73.621(e). After another broadcaster complained to the
FCC about Minority TV’s underwriting announcements, the
FCC commenced a proceeding against Minority TV. The
FCC’s Enforcement Bureau found that Minority TV had
MINORITY TELEVISION PROJECT V. FCC 9
broadcast announcements that violated § 399b and
§ 73.621(e) more than 1,911 times, and issued a Notice of
Apparent Liability for Forfeiture in the amount of $10,000.
17 FCC Rcd. 15646 ¶¶ 30, 33 (2002). Minority TV’s
announcements were in exchange for consideration and on
behalf of for-profit corporations such as Chevrolet, Ford, and
Korean Airlines. Id. ¶ 14. The FCC found that the
advertisements included improper promotional language. Id.
¶¶ 9, 15. The FCC rejected nearly all of Minority TV’s
challenges and issued a forfeiture order for $10,000. 18 FCC
Rcd. 26611 (2003). The FCC denied Minority TV’s
application for review and petition for reconsideration.
20 FCC Rcd. 16923 (2005); 19 FCC Rcd. 25116 (2004).
Minority TV then filed in this court a petition for review
of the FCC orders. After filing the petition, Minority TV paid
the $10,000 forfeiture to the FCC in full. We transferred the
case to district court.3
The district court dismissed Minority TV’s challenges to
the notice and the forfeiture order, its as-applied challenges
to § 399b, and its facial and as-applied challenges to
§ 73.621(e) for lack of jurisdiction because the courts of
appeals have exclusive jurisdiction to review FCC regulations
and orders. 47 U.S.C. § 402(a). The court explained that
§ 504(a), the carve-out allowing district courts to review
forfeiture orders, applied only to unpaid forfeiture actions.
47 U.S.C. § 504(a).
3
In transferring the case, we cited 47 U.S.C. § 504(a) and Dougan v.
FCC, 21 F.3d 1488, 1490–91 (9th Cir. 1994), in which we held that
Ҥ 504(a) vests exclusive jurisdiction in the district courts to hear
enforcement suits by the government and suits by private individuals
seeking to avoid enforcement.” Id. (emphasis added).
10 MINORITY TELEVISION PROJECT V. FCC
On cross-motions for summary judgment, the district
court granted summary judgment for the FCC on Minority
TV’s facial challenges to § 399b. Minority Television
Project, Inc. v. FCC, 649 F. Supp. 2d 1025, 1048 (N.D. Cal.
2009). Invoking the intermediate scrutiny test from League
of Women Voters, the court held that the statute was
“narrowly tailored to further a substantial government
interest.” Id. at 1042. The court pointed to the ample
evidence before Congress showing that “the advertising
prohibitions were necessary to preserve the unique
programming presented by public stations,” id. at 1037, and
to “additional material before the Court demonstrat[ing] that
the legislative conclusions are supported by substantial
evidence,” id. at 1039. In addition, the court held that the
statute was not unconstitutionally vague. Id. at 1048.
Minority TV appealed. The panel upheld the ban on for-
profit goods and services advertising. Two members of the
divided panel issued separate opinions striking down the
statute’s ban on issue and political advertising. Minority
Television Project, Inc. v. FCC, 676 F.3d 869 (9th Cir. 2012).
In dissent, Judge Paez determined that §§ 399b(a)(2) and (3)
were neither “patently overinclusive [nor] underinclusive,”
and that there were no “‘less restrictive means’ to § 399b that
[were] readily available.’” Id. at 893–95 (Paez, J., dissenting)
(citation omitted). Unlike the panel majority, Judge Paez
found substantial record evidence to support § 399b’s narrow
tailoring. Id. at 896–97. In an unpublished memorandum
disposition, the panel unanimously held that the district court
correctly dismissed Minority TV’s as-applied challenges to
§ 399b and its challenges to 47 C.F.R. § 73.621(e), and that
§ 399b was not unconstitutionally vague.4 A majority of
4
Minority TV did not appeal the district court’s dismissal of its claims
regarding the notice and the forfeiture order.
MINORITY TELEVISION PROJECT V. FCC 11
nonrecused active judges voted in favor of rehearing en banc.
704 F.3d 1009 (9th Cir. 2012).
ANALYSIS
I. FACIAL INTERMEDIATE SCRUTINY CHALLENGE TO
§ 399b
A. FRAMEWORK FOR ANALYSIS
1. Intermediate Scrutiny Test for Broadcast
Regulation
The Supreme Court laid down the standard for evaluating
the constitutionality of § 399b—intermediate scrutiny—in
League of Women Voters. 468 U.S. at 380. That case
involved a First Amendment challenge to a statutory
provision forbidding all NCE stations that received grants
from the Corporation for Public Broadcasting from
“engag[ing] in editorializing.” Id. at 366 (citing 47 U.S.C.
§ 399 (1980)). The Court declined to apply strict scrutiny
even though the statute was content-based and “plainly
operate[d] to restrict the expression of editorial opinion on
matters of public importance”—a form of speech “entitled to
the most exacting degree of First Amendment protection.”
Id. at 375–76. It explained that, “because broadcast
regulation involves unique considerations, our cases have not
followed precisely the same approach that we have applied to
other media and have never gone so far as to demand that
such regulations serve ‘compelling’ governmental interests.”
Id. at 376.
The Court struck down the ban on editorialization because
it was not “sufficiently tailored to the harms it s[ought] to
12 MINORITY TELEVISION PROJECT V. FCC
prevent to justify its substantial interference with
broadcasters’ speech.” Id. at 392. In particular, the ban was
“manifest[ly] imprecis[e]”—both “patent[ly] overinclusive[]
and underinclusive[].” Id. at 392, 396. The government’s
substantial interest in ensuring that viewers did not think
broadcasters’ editorials reflected the views of the government
could “be fully satisfied by less restrictive means that [were]
readily available.” Id. at 395.
Like the statute at issue in League of Women Voters,
§ 399b is a content-based broadcast regulation, and we may
uphold the statute’s restrictions on advertising only if we are
satisfied that they are “narrowly tailored to further a
substantial governmental interest.” Id. at 380. In addition,
because subsections (a)(2) and (a)(3) burden public issue and
political speech, we must be “particularly wary in assessing
[the statute] to determine whether it reflects an impermissible
attempt ‘to allow a government [to] control . . . the search for
political truth.’” Id. at 384 (quoting Consolidated Edison Co.
v. Public Service Comm’n of N.Y., 447 U.S. 530, 538 (1980)
(alteration in original)).
Minority TV urges us to adopt a strict scrutiny standard.
We do not credit Minority TV’s argument that Citizens
United v. Federal Election Comm’n, 558 U.S. 310 (2010),
overruled decades of precedent sub silentio—especially given
that the Court there expressly overruled two other cases with
no mention of League of Women Voters or an intent to change
the level of scrutiny for broadcasting. Citizens United was
not about broadcast regulation; it was about the validity of a
statute banning political speech by corporations. Had
Citizens United changed the standard for broadcast
regulation, presumably the Supreme Court would have
recognized as much two years later in FCC v. Fox Television
MINORITY TELEVISION PROJECT V. FCC 13
Stations, 132 S. Ct. 2307, 2320 (2012), rather than declining
to address the broadcasters’ claim that precedent providing
for less rigorous scrutiny of broadcast regulation “should be
overruled because the rationale of that case has been
overtaken by technological change.” The Supreme Court has
not gone there and neither should we, absent a complete
record on the subject and a change of direction by the
Supreme Court. This case is not a suitable one for such
fundamental reconsideration of longstanding precedent.5
2. Scope of the Record
We are presented with an ample record to support § 399b,
consisting both of evidence that was before Congress in 1981
and evidence before the district court that covered the period
after enactment. Following the Supreme Court’s lead, we
look to “the evidence before Congress and then the further
evidence presented to the District Court.” Turner
Broadcasting Sys. v. FCC, 520 U.S. 180, 196 (1996)
(“Turner II”). As a matter of course, in multiple First
Amendment cases, the Court has looked beyond the record
before Congress at the time of enactment. See, e.g., League
of Women Voters, 468 U.S. at 387 & n.18, 390 & n.19, 392
n.21, 393 n.22 (looking to testimony before Congress as well
as reports and other evidence following the statute’s
enactment), and United States v. Playboy Ent. Grp., 529 U.S.
5We acknowledge that there has been considerable technological change
in broadcasting, including the ubiquity of the Internet. However, a
thoughtful examination of the impact of those changes on the use of
broadcast spectrum, market segmentation, and the like can hardly occur
on a record bare of evidence of the impact of technological change.
Minority TV has offered nothing other than sound bite platitudes, and the
dissent has offered nothing other than a series of newspaper articles, with
the weight of such publications as ESPN Playbook and Variety.
14 MINORITY TELEVISION PROJECT V. FCC
803, 821–22 (2000) (faulting the government for failing to
produce additional “probative evidence” to supplement the
“near barren legislative record” in applying strict scrutiny).
Congress enacted §§ 399a and 399b after a two-year FCC
notice and comment proceeding, days of hearings, and a
thoughtful committee report. Indeed, the record before
Congress provides a sufficient basis to uphold the statute
even without the supplemental evidence offered in the district
court. This case “does not present a close call” requiring us
to elaborate on what evidentiary burden Congress bears in
enacting a law that implicates First Amendment rights. Nixon
v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 393 (2000); see
also Sable Comm. of Cal., Inc. v. FCC, 492 U.S. 115, 133
(1989) (Scalia, J., concurring) (“Neither due process nor the
First Amendment requires legislation to be supported by
committee reports, floor debates, or even consideration, but
only by a vote.”).
It is clear, however, that Congress is “not obligated, when
enacting its statutes, to make a record of the type that an
administrative agency or court does to accommodate judicial
review.” Turner Broadcasting Sys. v. FCC, 512 U.S. 622,
666 (1994) (“Turner I”). We reject Minority TV’s
suggestions to the contrary. The dissent’s insistence on
“evidence” in the technical sense is misplaced. We are not
abdicating to a congressional whim or succumbing to some
notion that “judges like public radio and television,” Dissent
at 41, simply because we give credence to congressional
findings. Pure and simple, the dissent doesn’t like what
Congress found after considering extensive FCC
administrative proceedings, holding its own hearings, and
preparing a committee report. Congress is a political body
that operates through hearings, findings, and legislation; it is
MINORITY TELEVISION PROJECT V. FCC 15
not a court of law bound by federal rules of evidence.
Ignoring fundamental principles of separation of powers, the
dissent would rewrite the legislation, ignore the congressional
evidence, and substitute pop culture and its own policy
judgment for that of Congress.
In enacting §§ 399a and 399b, Congress made a
prediction about the effects of underwriting announcements,
logograms, and advertising on public broadcast programming.
We must accord deference “to [Congress’s] findings as to the
harm to be avoided and to the remedial measures adopted for
that end, lest we infringe on traditional legislative authority
to make predictive judgments when enacting nationwide
regulatory policy.” Turner II, 520 U.S. at 196.
Congressional concern and prognostication was well
informed, but the information before Congress was
necessarily limited because advertising had never been
allowed on NCE stations. The First Amendment does not
require Congress to wait for a feared harm to take place
before it can act. Such a high bar would make little practical
sense—it would tie Congress in knots and strip it of its ability
to adopt forward thinking public policy. “Sound
policymaking often requires legislators to forecast future
events and to anticipate the likely impact of these events
based on deductions and inferences for which complete
empirical support may be unavailable.” Turner I, 512 U.S. at
665.
Apart from the evidence that was before Congress in
1981, the government presented significant additional
evidence, including a 2007 report by the Government
Accountability Office (“GAO”) on public television; the
report of the Temporary Commission on Alternative
Financing for Public Telecommunications, which oversaw an
16 MINORITY TELEVISION PROJECT V. FCC
experiment with limited advertising on public television;
information about political advertising; an expert report from
a Stanford University professor emeritus with over 40 years
of experience in studying the economics of broadcasting and
public television; and a declaration from a vice president of
a foundation that operates numerous noncommercial
educational radio and television stations.
We conclude that substantial evidence before Congress
supported the conclusion that the advertising prohibited by
§ 399b posed a threat to the noncommercial, educational
nature of NCE programming and that the additional evidence
bears out Congress’s predictive judgment in enacting § 399b.
Minority TV’s scant evidentiary showing reinforces this
conclusion. See Nixon, 528 U.S. at 394 (noting that more
extensive evidence might be required if the parties
challenging the statute “had made any showing of their own
to cast doubt” on the evidence supporting it). Similarly, the
dissent offers only speculation not substance for its view that
permitting unfettered advertising wouldn’t lead to distortion
and perverse incentives. Poking holes in the congressional
evidence is hardly a substitute for the scrutiny required of this
court.
B. INTERMEDIATE SCRUTINY ANALYSIS OF SECTION
399b
We now turn to a more detailed analysis of whether
§ 399b is “narrowly tailored to further a substantial
governmental interest.” League of Women Voters, 468 U.S.
at 380. Section 399b was enacted in 1981 against the
backdrop of declining federal support for public broadcasting.
Congress was acutely aware that public broadcasting needed
new sources of revenue to survive, but it was also worried
MINORITY TELEVISION PROJECT V. FCC 17
about undermining the essential nature of public broadcast
programming. The FCC had just promulgated new,
liberalized regulations that were “designed to further the
important governmental interest in preserving the essentially
noncommercial nature of public broadcasting within a
minimal regulatory framework by insulating public
broadcasters from commercial marketplace pressures and
decisions.” 90 F.C.C. 2d 895, 896 (1982) (statement by FCC
Commissioner Washburn clarifying the impact of the Public
Broadcasting Amendments Act on the recently issued
regulations) (emphasis in original). The FCC believed the
liberalized advertising restrictions “satisf[ied] constitutional
objections.” Id. Congress agreed, and so do we.
1. Substantial Governmental Interest
Federal regulation of the broadcast spectrum, a scarce
public resource, is entitled to more deferential First
Amendment review than regulation of other types of media.
See Reno v. ACLU, 521 U.S. 844, 868 (1997) (highlighting
the “special justifications for regulation of the broadcast
media that are not applicable to other speakers,” including the
“history of extensive Government regulation of the broadcast
medium,” “the scarcity of available frequencies at its
inception,” and “its ‘invasive’ nature”) (citations omitted);
Turner I, 512 U.S. at 637 (noting that the “justification for
[the Court’s] distinct approach to broadcast regulation rests
on the unique physical limitations of the broadcast medium”).
This deferential review is not strict scrutiny light, but instead
requires us to benchmark the statute against the requirements
of League of Women Voters, including the government’s
substantial interest. Section 399b’s advertising restrictions
speak directly to the government’s substantial interest in
maintaining the unique, free programming niche filled by
18 MINORITY TELEVISION PROJECT V. FCC
public television and radio. That Minority TV does not
contest the government’s substantial interest in ensuring the
diversity and quality of public broadcast programming is no
surprise. Nonetheless, it is useful to detail the nature and
scope of the government’s interest both as a prelude to and a
basis for informing our narrow tailoring analysis.
The First Amendment rights of Minority TV and potential
advertisers do not exist in a vacuum. The Supreme Court has
recognized the public’s right “to receive suitable access
[through broadcast media] to social, political, esthetic, moral,
and other ideas and experiences.” Red Lion Broad. Co. v.
FCC, 395 U.S. 367, 390 (1969). “Balancing the various First
Amendment interests involved in the broadcast media and
determining what best serves the public’s right to be informed
is a task of great delicacy and difficulty,” and “we must
afford great weight to the decisions of Congress and the
experience of the [FCC].” Columbia Broad. Sys. v.
Democratic Nat'l Comm., 412 U.S. 94, 102 (1973).
In pursuit of its goal, the government set aside specific
channels for noncommercial use, provided funding through
the Corporation for Public Broadcasting and other means, and
created special requirements and restrictions for NCE
stations. See, e.g., 47 U.S.C. §§ 303 (a)–(b), 394, 396, 399a,
399b; 47 C.F.R. § 73.503. However, the dissent fails to
appreciate that section 399(b) is a central prong of these
structural constraints and that they operate as a package to
effectuate congressional intent. The dissent’s selective
excision of a foundational principle of public television
undermines the integrated legislative package and ignores the
FCC’s experience with public television. Section 399b does
not stand alone; it is an important piece of a comprehensive
MINORITY TELEVISION PROJECT V. FCC 19
scheme to promote programming that is differentiated from
the typical commercial fare.
Numerous statutes and reports recognize the unique
nature of NCE programming. For example, when the FCC
first set aside television channels for noncommercial use, it
pointed to “the important contributions which noncommercial
educational television stations can make” and the “high
quality type of programming” available on NCE
stations—“programming of an entirely different character
from that available on most commercial stations.” Third
Notice of Further Proposed Rulemaking, 16 Fed. Reg. 3072,
3079 (1951). In the Public Broadcasting Act of 1967, which,
among other things, established the Corporation for Public
Broadcasting, Congress found that “[i]t furthers the general
welfare to encourage public telecommunications services
which will be responsive to the interests of people both in
particular localities and throughout the United States, which
will constitute an expression of diversity and excellence, and
which will constitute a source of alternative
telecommunications services for all the citizens of the
Nation.” 47 U.S.C. § 396(a)(5). And in passing the
Children’s Television Act of 1990, the Senate explained that
“public television is the primary source of educational
children’s programming in the United States.”6 S. Rep.
101-66, at 7 (1989).
6
Speaking before the Senate on this Act, Senator Wirth stated that “[t]he
marketplace has simply failed to produce [educational children’s
programming] on its own, in large part because the advertiser-driven
television industry does not find children’s programming to be a
particularly lucrative venture” and that “educational [children’s] programs
have literally disappeared from the airwaves on all but PBS stations.”
136 Cong. Rec. 18241–18242 (daily ed. July 19, 1990).
20 MINORITY TELEVISION PROJECT V. FCC
The unrebutted evidence before us documents that
programming on public broadcast stations is markedly
different from that on commercial stations. That was true in
1981 when Congress enacted § 399b, and it is true now. As
the district court noted, “Congress did not write on a blank
slate when it enacted Section 399b; rather, after a half-century
of experience with public broadcasting, the record before
Congress showed that public television and radio stations
carry very different programming than do commercial
stations.” 649 F. Supp. 2d at 1036. For example, there was
testimony before Congress that public radio allows “7 or 15
minutes to explore an issue, rather than being confined to the
30-60- and 90-second snatches common to commercial
stations,” provides “the only network for the blind,” “gives
you jazz live,” and provides four hours of daily news of a
different nature than that provided by commercial stations.
H. Hgs. at 323 (Walda W. Roseman, Senior Vice President,
National Public Radio (“NPR”)).
Stanford University Professor Emeritus Roger Noll, a
government expert who has spent over forty years studying
the economics of broadcasting and public television,
presented evidence that “non-commercial stations offer
statistically significantly more public affairs, children’s and
family programming, and statistically significantly less
violent programming, than both affiliates of commercial
networks and all other commercial stations.” According to
the Government Accountability Office, public broadcasters
devote 16 percent of all program hours to educational
children’s programming,7 compared to the 3.32 hours per
week the average commercial broadcaster gives to such
7
Some NCE stations devote more than 40 percent of their weekday
program hours to children’s programming.
MINORITY TELEVISION PROJECT V. FCC 21
programming. Many NCE stations also broadcast
instructional programming for adults, including GED
preparation, community college telecourses, and professional
growth programming for teachers and administrators. In
addition, some public broadcast stations are the only source
of local programming that is not related to news or sports.
The primary harm § 399b sought to prevent was the loss
of the distinctive content of public broadcast programming.
Congress heard from dozens of witnesses who testified,
among other things, that “[c]ommercialization will make
public television indistinguishable from the new commercial
or pay culture cable services,” H. Hgs. at 149 (Larry Sapadin,
Executive Director, Association of Independent Video &
Filmmakers, Inc.), and that NCE-type programming “is just
not possible with the commercial constraints of providing a
commercial service,” H. Hgs. at 323 (Walda W. Roseman,
NPR). “All consumer and public interest group
representatives” who testified “were concerned about what
they viewed as a trend towards the commercialism of public
broadcasting.” H. R. Rep. No. 97-82, at 9 (1981).
One of the major themes in the evidence before Congress
was that advertising distorts programming decisions because
advertisers have something to sell—be it a product, message,
or candidate—and they want to sell it to the largest audience
possible. Representative Robert Matsui, a former member of
the Communications Subcommittee, explained that the
“principal thrust of commercial broadcasting . . . is controlled
by its need to reach mass audiences in order to sell products.
While this mass approach is definitely a valid purpose,
commercial broadcasting is unable thereby to respond to the
myriad of individual needs of any community. . . . It simply
does not possess the programming flexibility to tailor shows
22 MINORITY TELEVISION PROJECT V. FCC
to serve the numerous characteristics of each community.”
H. Hgs 30–31. Similarly, an article submitted to the House
by the National Association of Educational Broadcasters
explained that public broadcasters “don’t aim to amuse the
lowest common denominator of the audience because we’re
not seeking the highest ratings possible. Because we don’t
carry ads. Because the law won’t let us.” H. Hgs. 226–27;
see also H. Hgs. 129-30 (John C. DeWitt, American Found.
for the Blind) (testifying that “commercialization of public
broadcasting . . . run[s] the danger that [broadcasters] will
focus on the lowest common denominator of programming”
rather than on serving “diverse audiences” like minorities,
women, and the print handicapped). One member of the
House of Representatives summed up this concern: “Will the
search for dollars compromise [public broadcasting’s]
creative genius? Will there be strings attached to the money
that is given to public broadcasting so that the most
courageous and needed programs are not funded for fear of
controversy—or simply fear itself?” 127 Cong. Rec. 13148
(June 22, 1981) (Rep. Waxman).
The commercialization Congress feared was not restricted
to typical commercial business advertising. Rather, Congress
was worried about the commercialization of public
broadcasting itself: the selling of airtime. See, e.g., H. Hgs.
71 (Senator Wirth describing how the “selling of time” would
transform public broadcasting by leading stations to make
programming decisions based on their calculations of the
advertising value of shows); see also H. Hgs. 149 (the
Executive Director of the Association of Independent Video
& Filmmakers, Inc., emphasizing that “[s]elling makes its
own demands”).
MINORITY TELEVISION PROJECT V. FCC 23
Congress heard testimony about the need to protect public
broadcasting from all special interests whose advertising
dollars could affect programming decisions. See H. Hgs. 112
(Jack Golodner, Director, Department for Professional
Employees, AFL-CIO) (“[I]f public broadcasting is to
perform its role . . . , then sufficient public funding must be
made available so that to the furthest extent humanly
possible, it is insulated from political, corporate, and, for that
matter, labor influence.”). The record shows that Congress
was concerned with “insulat[ing] public broadcasting from
special interest influences—political, commercial, or any
other kind.” 127 Cong. Rec. 13145 (1981) (Rep. Gonzales);
see also H.R. Rep. No. 97-82, at 16 (1981) (listing as a
criterion for alternative financing mechanisms the “insulation
of program control and content from the influence of special
interests—be they commercial, political or religious”).
Evidence before the district court reinforces the
congressional view that if advertising were allowed,
programming would “follow the money,” changing the nature
of public broadcast programming. The research cited by Noll
is consistent with much of the testimony before Congress, and
it bears out Congress’s predictive judgment that advertising
would change the face of public broadcasting. Noll explained
that commercial broadcasting suffers from a “market failure”
in that a “competitive, advertiser-supported television system
leads to an emphasis on mass entertainment programming
with insufficient attention to programs that serve a small
audience, even if that audience has an intense desire to watch
programs that differ from standard mass entertainment
programs.” According to Noll, in order to attract advertising
dollars, NCE stations would have to change their
programming to be more like that on commercial stations—
programming that advertisers prefer because it attracts large
audiences.
24 MINORITY TELEVISION PROJECT V. FCC
The diversity and quality of programming on public
broadcast stations stems both from the restrictions on
advertising and from the incentives created by the existing
funding structure. Funding for NCE stations comes from
federal, state, and local subsidies; donations from viewers;
and program underwriters including corporations,
foundations, and other entities. Noll explained that,
“[b]ecause the viability of public television stations depends
on attracting donations, stations are motivated to offer
programs that encourage voluntary contributions from the
communities that they serve.”
Lance Ozier, the Vice-President for Planning and Policy
of the WGBH Educational Foundation, detailed that funding
from federal and state government sources as well as
foundations and other not-for-profit underwriters would be
jeopardized if NCE stations were permitted to air paid
advertisements. Ozier stated that the loss of funding would
not be restricted to those stations who chose to air
advertisements: “Every public station would face the
consequences generally of a perceived deviation from the
public education mission.”
In 2007, the GAO reported that many of the public
television licensees with whom it spoke opposed greater
underwriting flexibility. The large majority that opposed
greater underwriting flexibility said that it “would not
generate increased underwriting revenues, since corporations
and advertisers desire programming with high ratings and a
targeted demographic,” “would upset viewers and contribute
to a decline in membership support,” “could threaten a
licensee’s ability to receive financial support from a state
government,” and “would be inconsistent with the mission of
public television and could alter programming decisions.”
MINORITY TELEVISION PROJECT V. FCC 25
The upshot of the evidence—starting with the FCC study,
buttressed during congressional hearings, and reinforced by
additional evidence before the district court—is that the
government has a substantial interest in imposing advertising
restrictions in order to preserve the essence of public
broadcast programming.
2. Narrow Tailoring
With this substantial interest in mind, the next question in
our intermediate scrutiny analysis is whether the law is
“narrowly tailored to further [that] substantial government
interest.” League of Women Voters, 468 U.S. at 380. Unlike
strict scrutiny, intermediate scrutiny does not require that the
means chosen by Congress be the least restrictive. See
Turner I, 512 U.S. at 662; United Brotherhood of Carpenters
& Joiners of Am. Local 586 v. NLRB, 540 F.3d 957, 968 (9th
Cir. 2008). As the Supreme Court succinctly noted in a
commercial speech case, narrow tailoring requires “a ‘fit’
between the legislature’s ends and the means chosen to
accomplish those ends.” Bd. of Tr. of the State Univ. of New
York v. Fox, 492 U.S. 469, 480 (1989) (citation omitted).
Understanding the contrast between this case and the ban
on editorialization in League of Women Voters is a useful
starting point in the narrow tailoring analysis. See 468 U.S.
at 393. That ban was patently overinclusive because it
“include[d] within its grip a potentially infinite variety of
speech” that was not related to the government’s interests in
protecting NCE stations from “being coerced . . . into
becoming vehicles for government propagandizing or the
objects of governmental influence.” Id. at 393, 396. The
restriction was also patently underinclusive. Id. at 396.
Because the stations remained “fully able to broadcast
26 MINORITY TELEVISION PROJECT V. FCC
controversial views so long as such views [were] not labeled
as [their] own,” the ban did not effectively “reduce the risk of
government retaliation and interference.” Id. at 384–85.
There was also evidence that some supporters of the bill were
less concerned with the risk of government control of NCE
stations than they were with protecting themselves from
critical speech. Id. at 387 n.18 (quoting the provision’s chief
sponsor, who explained that some representatives “have very
strong feelings because they have been editorialized
against”). Finally, the government’s interest in ensuring that
audiences would not presume that broadcasters’ editorials
reflected official government views could have been easily
satisfied by a less restrictive regulation requiring NCE
stations to broadcast a disclaimer when they editorialized. Id.
at 395. In short, there was very little fit between the ban and
its stated purposes.
In contrast, § 399b’s restrictions are narrowly tailored to
the harms Congress sought to prevent. Having documented
the link between advertising and programming, Congress
reaffirmed the long-standing ban on advertising on NCE
stations, but in a more targeted manner. In place of the prior
absolute ban on promotional content, which swept within its
reach a wide range of speech that did not pose a significant
risk to public programming, Congress enacted targeted
restrictions that leave untouched speech that does not
undermine the goals of the statute. The restrictions leave
broadcasters free to air enhanced underwriting, which both
the FCC and Congress determined did not pose the same risk
to programming as advertisements. Broadcasters may air any
promotional content for which consideration was not
received. Finally, the statute permits non-profit
advertisements. As to this latter category, the government
offered evidence that non-profit advertisements, which are
MINORITY TELEVISION PROJECT V. FCC 27
few in number and perceived by the public as consistent with
the mission of public broadcasting, do not pose the same
threat as other forms of advertising.
Section 399b’s prohibitions are specifically targeted at the
real threat—the influence of paid advertising dollars.
Congress identified significant special interests that pump
money into advertising, setting out three subsets of
advertisers—typical for-profit businesses, political
candidates, and advocacy groups. The term “advertisement”
is defined by reference to these three subsets, which taken
together have a single effect: to prevent the
commercialization of public broadcasting by prohibiting
nearly all advertising. Although the dissent proffers
unsupported distinctions between political or issue
advertisements and commercial advertisements they are not
germane to the overall threat that Congress targeted:
commercialization through advertising.
Unlike the ban on editorialization, which was
underinclusive to the point of ineffectiveness, § 399b
effectively “insulate[s] public broadcasting from special
interest influences—political, commercial, or any other kind.”
127 Cong. Rec. 13145 (1981). More than thirty years since
§ 399b was enacted, the continuing differences between
public broadcasting and commercial broadcasting are a
testament to the statute’s success in promoting Congress’s
purpose. The government provided expert evidence that the
“present system of financing public television is
effective”—that it “improves diversity of programming”
while “avoiding problems associated with advertisements.”
Minority TV’s unsupported assertion that “399b’s attempt to
prevent the ‘buying’ of influence cannot possibly be
effective” because “groups, entities, and individuals” can still
28 MINORITY TELEVISION PROJECT V. FCC
“attempt to ‘buy’ influence” by making donations is not
persuasive. Not only is there no evidence that donations
affect programming; there is a huge difference between a
donation and targeted advertising.
The dissent acknowledges the evidence before Congress
and the district court, but offers its own theories of how to
protect public broadcasting. Contrasting the actual evidence
and the dissent’s proposals illustrates the difference between
the strict scrutiny standard that the dissent hoped we would
apply and the intermediate scrutiny standard that we are
bound to apply. We do not demand mathematical precision
from Congress; rather, we demand a “fit” between the ends
and the chosen means. Fox, 492 U.S. at 480. The evidence
in this case easily demonstrates a fit between section 399(b)
and the substantial interest in protecting the essence of public
broadcasting. Therefore, section 399(b) survives intermediate
scrutiny on this prong of the analysis under League of Women
Voters.
a. Overinclusiveness: Challenge to Issue and
Political Advertising Restrictions
Minority TV essentially lets pass § 399b’s restriction on
for-profit goods and service advertising and focuses its attack
on the political and issue advertising restrictions. This attack
rests on a distinction without a difference. Congress was
trying to prevent the commercialization of public
broadcasting itself, not simply advertisements by commercial
businesses.
Minority TV mistakenly attempts to equate congressional
focus on commercialization with for-profit businesses; but
this reading is at odds with congressional intent. Congress
MINORITY TELEVISION PROJECT V. FCC 29
determined that the “insulation of program control and
content from the influence of special interests—be they
commercial, political or religious”—was necessary. See H.R.
Rep. No. 97-82, at 16 (1981). The government’s evidence
regarding the enormous sums spent on political advertising
confirms Congress’s prediction that, like advertising by for-
profit entities, political advertising dollars have the power to
distort programming decisions. In 2008 alone, political
advertisers spent $2.2 billion. As the campaign season gets
longer and longer, commercial television viewers are
bombarded with political and issue advertising. Prohibiting
only goods and services advertising and allowing issue and
political advertising would have shifted incentives and left a
gaping hole in § 399b’s protections.
We recognize the special place political speech has in our
First Amendment jurisprudence. Morse v. Frederick,
551 U.S. 393, 403 (2007) (“Political speech, of course, is ‘at
the core of what the First Amendment is designed to
protect.’”) (citation omitted). But there is no evidence that
Congress was targeting political speech, critical speech or
particular viewpoints as opposed to the programming
influence exerted by advertising dollars. Cf. League of
Women Voters, 468 U.S. at 387 n.18 (noting that some
supporters of the ban on editorialization “appear to have been
more concerned with preventing the possibility that these
stations would criticize Government officials” than with the
risk of undue government influence).
Each form of prohibited advertising poses a similar threat.
Whether selling financial services, a state senator, or a voter
initiative, advertisers seek the largest possible audience. See
H. Hgs. 149 (“The purpose of advertising is simply to sell—a
product or an image. Selling makes its own demands.”)
30 MINORITY TELEVISION PROJECT V. FCC
(Larry Sapadin, Executive Director, Association of
Independent Video & Filmmakers, Inc.). Advertisers also
seek programming that is consistent—or at least not contrary
to—their messages and values, or the values of their
customers or constituencies. See Yoo, Christopher S.,
Architectural Censorship and the FCC, Regulation, vol. 28,
issue 1 (2005), at 24 (“Anecdotal evidence suggests that some
advertisers have discouraged networks from offering
programming that addresses controversial issues or that casts
their products in an unflattering light. In addition, reliance on
advertising support leaves programmers vulnerable to the
political biases of advertisers and special interest groups.”).
Finally, selling programs would essentially convert public
broadcasting into commercial broadcasting. See, e.g., H.
Hgs. 71 (“If we get public broadcasting into the selling of
time, how do we avoid then getting public broadcasting . . .
into a very large commitment of their own to figure out what
demographics they are touching or what the measurement is
going to be able to be of that particular population, and how
much X program sells for and how much Y program sells
for?”) (Sen. Wirth). It strains logic to suggest that advertisers
would compete intensely to run ads for a state senator or a
voter initiative on guns or taxes during Sesame Street or
Mister Rogers. Children are hardly the appropriate target
audience.
Minority TV argues that more was needed before
Congress could prohibit issue and political advertising. We
disagree. 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. As the Court observed in Turner II
in rejecting the dissent’s insistence that Congress was
required to have more information before it could enact the
MINORITY TELEVISION PROJECT V. FCC 31
cable must-carry legislation, that level of factfinding “would
be an improper burden for courts to impose on the Legislative
Branch.” 520 U.S. at 213. “That amount of detail is as
unreasonable in the legislative context as it is constitutionally
unwarranted.” Id. Congress’s prophylactic action, based on
common sense, congressional understanding of how political
advertising works, and record evidence, did not need to await
an empirical study to support its predictions. See Turner I,
512 U.S. at 665 (“Sound policymaking often requires
legislatures to forecast future events and to anticipate the
likely impact of these events based on deductions and
inferences for which complete empirical support may be
unavailable.”).
Congress’s determination that all three kinds of
advertising posed a significant threat to public programming
is supported by substantial evidence, and Minority TV does
not point to any evidence indicating that issue and political
advertising are less likely to result in commercialization than
corporate goods and services advertising. Its argument as to
overinclusiveness doesn’t pan out.
b. Underinclusiveness: Challenge to
Permitting Advertising by Non-Profit
Entities
Minority TV makes much of the fact that § 399b does not
prohibit advertising by non-profit entities. It frames this as an
argument that § 399b favors commercial speech—advertising
by non-profits—over non-commercial speech—political and
issue advertisements. Minority TV claims that the statute
“clearly inverts the hierarchy of constitutional protections of
speech.” There is, however, a documented reason for
exempting this tiny slice of advertising from the overall
32 MINORITY TELEVISION PROJECT V. FCC
restrictions—non-profit advertising is a drop in the bucket
money wise and this limited advertising has no programmatic
impact.
Although the cases that Minority TV relies on for this
argument concern newspaper racks and portable signs, the
argument itself appears to come straight from the law of
billboards. It is true that, with respect to billboards, “an
ordinance is invalid if it imposes greater restrictions on
noncommercial than on commercial billboards.” Nat’l Adver.
Co. v. Orange, 861 F.2d 246 (9th Cir. 1988). But public
broadcasting stations are not billboards, and broadcast
regulations are not subject to the formulation for billboards,
newspaper racks, or signs. “Each method of communicating
ideas is ‘a law unto itself’ and that law must reflect the
‘differing natures, values, abuses and dangers’ of each
method.” Metromedia, Inc. v. City of San Diego, 453 U.S.
490, 501 (1981) (quoting Kovacs v. Cooper, 336 U.S. 77, 97
(1949) (Jackson, J., concurring)).
Even if this longstanding distinction were cast aside,
Minority TV’s reliance on cases such as Ballen v. Redmond,
466 F.3d 736 (9th Cir. 2006), and Cincinnati v. Discovery
Network, 507 U.S. 410 (1993), is misplaced. In Ballen, for
example, the sign ordinance was ostensibly intended to
promote safety and community aesthetics. Instead, the
ordinance discriminated on the basis of content and the
permitted signs created the same harms as the prohibited
ones. This was a classic mismatch between the restriction
and its stated purpose. Unlike the statute here, the ordinance
in Ballen was not “a reasonable fit between the restriction and
the goal[.]” 466 F.3d at 744. Discovery Network also
underscored the same absence of “reasonable fit” because the
ordinance was directed to such a “paltry” aspect of the
MINORITY TELEVISION PROJECT V. FCC 33
purported problems posed by newspaper racks. 507 U.S. at417–18.
To the extent that Minority TV is making an
underinclusiveness argument—that § 399b is underinclusive
because it does not prohibit goods and services advertising by
non-profits—that attack also fails. See Sorrell v. IMS Health,
Inc., 131 S. Ct. 2653, 2668 (2011) (explaining that “[r]ules
that burden protected expression may not be sustained when
the options provided by the State are too narrow to advance
legitimate government interests”); see also Mainstream Mktg.
Servs., Inc. v. FTC, 358 F.3d 1228, 1238–39 (10th Cir. 2004)
(“The underinclusiveness of a commercial speech regulation
is relevant only if it renders the regulatory framework so
irrational that it fails materially to advance the aims that it
was purportedly designed to further.”). The statute in League
of Women Voters was “patent[ly] . . . underinclusive[]” and
“‘provide[d] only ineffective or remote support for the
government’s purpose,’” whereas § 399b has been effective
in meeting the government’s asserted interest. 468 U.S. at
396 (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 564 (1980)). Allowing non-
profit advertising has not thwarted § 399b’s goals.
In promulgating its newly liberalized 1981 regulations,
the FCC noted that “[m]any commenting parties were
concerned with the proscription” on promoting the sale of
products or services as applied to announcements made on
behalf of non-profit entities or the station itself. 86 F.C.C. 2d.
at 144. The FCC addressed this concern by limiting the ban
to announcements for which consideration was received. Id.
at 148–49. Congress went one step further in narrowly
tailoring the legislation, by allowing non-profit advertising
for goods and services without regard to whether
consideration was received.
34 MINORITY TELEVISION PROJECT V. FCC
Congress’s prediction that non-profit advertising would
not pose the same risk to public broadcasting as the restricted
types of advertising is borne out by the record. Lance Ozier
from the WGBH Educational Foundation explained that
advertising by non-profit entities “do[es] not present the same
danger” to public television as prohibited forms of
advertising because (1) “viewers generally have seen
messages from [non-profit] entities as being consistent with
the public education mission of public television,” so
advertisements by non-profit entities “do not threaten
traditional funding sources” like viewer donations and
government grants, and (2) “there is a much smaller set of
not-for-profit advertisers than there is of for-profit
advertisers.” Non-profit advertising sales are so small that
they did not even register on the breakdown of public
television revenue sources presented by the government.
Indeed, there is only a single actual non-profit announcement
in the record before us, and it is not one that Minority TV
sought to broadcast. Non-profit advertising does not pose the
same threat as commercial, political, or issue advertisements
in large part because the number of corporate advertisers
dwarfs the number of potential non-profit advertisers. In the
end, exempting non-profit advertising underscores, rather
than undermines, Congress’s narrow tailoring.
c. No Sufficient Less Restrictive Means
The goals of § 399b cannot “be fully satisfied by less
restrictive means that are readily available.” 468 U.S. at 395.
Section 399b already is a less restrictive means of ensuring
diverse, high quality programming on public broadcast
stations than either the previous promotional prohibition or
any attempt to directly regulate program content rather than
MINORITY TELEVISION PROJECT V. FCC 35
advertising.8 The latter approach would not only be less
effective, it would open a different can of First Amendment
worms.
Minority TV insists that time, place, and manner
restrictions could achieve the same goals. Without any
support as to correlation with Congressional goals, Minority
TV blithely suggests limiting the number of underwriting
announcements or permitting advertising that doesn’t
interrupt programming and is limited in length. But that
argument runs counter to the evidence. Lance Ozier
concluded that NCE stations would “be forced to change
[their] programming substantially . . . even if advertisements
did not interrupt programming or if they were limited in
length.” Ozier explained that, “should public broadcasting be
perceived as being ‘commercial,’” NCE stations would have
a harder time soliciting donations from viewers and might
lose funding from federal and state government sources,
foundations, and other not-for-profit underwriters. The
stations could also experience increased costs by losing the
beneficial treatment they currently receive in negotiating
labor contracts and broadcast rights.
Minority TV also ignores the history of the Advertising
Demonstration Program, an experiment authorized by the
Public Broadcasting Act of 1981 that allowed advertisements
on some public broadcast stations subject to the very
8
According to Roger Noll, “the regulatory approach—improving the
content of programs by writing content rules—is not as effective as simply
removing the commercial incentive by eliminating advertising and
subsidizing the right kind of programs.” For example, the poor outcomes
of efforts to mandate educational and informational children’s
programming on commercial stations evidence the weakness of a content
regulation approach.
36 MINORITY TELEVISION PROJECT V. FCC
restrictions Minority TV proffers—that the advertisements
not interrupt programming and be limited in length. The
Temporary Commission on Alternative Financing for Public
Telecommunications (“the Commission”), which was charged
with overseeing the experiment, concluded that “the benefit
that some public broadcasting stations might gain additional
revenues from the authorization of limited advertising does
not balance the potential risks identified in this report.”
Among the potential risks identified were those noted by
Ozier. For example, representatives of the five major unions
involved with program production told the Commission that
they “may seek ‘commercial’ rates and rights agreements
from public broadcast stations that air limited
advertisements,” and copyright-owners’ representatives
similarly indicated that they might seek higher payments
from those stations.9 Based on the results of the experiment,
the Commission recommended that Congress leave § 399b’s
prohibitions in place. It is rare to have the benefit of a
comparison when judging less restrictive means. We cannot
ignore experience with alternatives that demonstrates that
§ 399 is narrowly tailored to accomplishing Congress’s
goals.10
9
The Commission obtained agreements to freeze labor and copyright
costs for the course of the experiment with the express assurance that such
freezes would not constitute a precedent if limited advertising were later
authorized.
10
We are surprised by the dissent’s effort to undermine the
Commission’s recommendation with selective excerpts from the
Commission’s report. For example, the dissent picks up on language
suggesting a possible increase in revenues. The Commission, however,
specifically discounted reliance on data showing any increased revenue.
The dissent also highlights opinion polls that “showed an increase in the
number of subscribers who reported that they would continue to
contribute;” in fact, the actual data reflected “[a] significant decline in
MINORITY TELEVISION PROJECT V. FCC 37
Finally, although Congress may not have considered a
pure time, place and manner restriction, as Minority TV
claims it should have, it did evaluate less restrictive
alternatives. The House considered an alternative to § 399b
that would have allowed institutional advertisements that did
not interrupt regular programming and did not exceed thirty
seconds in duration. H. Hgs. 24 (proposed text of H.R. 2774).
While some of those who testified before Congress supported
allowing institutional advertisements, many opposed it. See,
e.g., H. Hgs. 229 (David Ives, president of WGBH TV in
Boston) (stating that allowing logograms “liberalizes our
rules without compromising our principles,” but that
permitting even limited institutional advertisements would
“blur the distinction between us and commercial stations”);
H. Hgs. 149 (Association of Independent Video and
Filmmakers, Inc.) (“Even tasteful, institutional advertising
will give rise to programming that will conform to the
purposes of corporate image-building . . . .”).
II. FACIAL VAGUENESS CHALLENGE TO § 399b
Section 399b’s prohibition of paid messages intended to
“promote” any service, facility, or product of a for-profit
entity is not unconstitutionally vague. A statute need not
have “mathematical certainty” to survive a vagueness
challenge; instead, it may be marked by “flexibility and
reasonable breadth, rather than meticulous specificity.”
average contribution per subscriber at advertising stations.” Moreover, the
data showed reduced giving from large contributors. Likewise, the dissent
ignores new costs to public broadcast stations that the Commission
identified, including tax increases or complete loss of tax-exempt status
that could result without section 399(b). The dissent’s “evidence” does
not withstand basic scrutiny.
38 MINORITY TELEVISION PROJECT V. FCC
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)
(citation omitted). Nonetheless, the meaning of the term
“promoting” a product or service is fully within “common
understanding” and is clear in the vast majority of
circumstances. Cal. Teachers Ass’n v. State Bd. of Educ.,
271 F.3d 1141, 1151 (9th Cir. 2001). To the extent it is not,
the FCC—to remove uncertainty—provides declaratory
rulings to broadcasters who fear they might run afoul of
§ 399b. 47 C.F.R. § 1.2. This guidance serves to
“sufficiently narrow potentially vague or arbitrary
interpretations” of the statute. Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504 (1982).
III. AS-APPLIED CHALLENGE TO § 399b AND
CHALLENGES TO 47 C.F.R. § 73.621(e)
The district court correctly dismissed Minority TV’s
as-applied challenges to § 399b and its challenges to
47 C.F.R. § 73.621(e). Section 399b was applied to Minority
TV only through FCC orders and regulations, including
47 C.F.R. § 73.621(e). Jurisdiction over challenges to FCC
orders lies exclusively in the court of appeals; as such, federal
district courts lack jurisdiction over appeals of FCC orders.
28 U.S.C. § 2342(1) (“The court of appeals . . . has exclusive
jurisdiction to enjoin, set aside, suspend (in whole or in part)
or determine the validity of . . . all final orders of the Federal
Communications Commission.”). See also United States v.
Dunifer, 219 F.3d 1004, 1007 (9th Cir. 2000) (explaining that
district courts lack jurisdiction over any challenge to FCC
regulations).
Although the Supreme Court has previously reviewed a
First Amendment challenge to an FCC regulation that was
initially filed in federal district court, see Greater New
MINORITY TELEVISION PROJECT V. FCC 39
Orleans Broadcasting Ass’n v. United States, 527 U.S. 173(1999), the Court in that case did not address—and was not
asked to address—whether jurisdiction in the district court
was proper. Courts “are not bound by a prior exercise of
jurisdiction in a case where it was not questioned and it was
passed sub silentio.” United States v. L.A. Trucker Truck
Lines, Inc., 344 U.S. 33, 38 (1952).
AFFIRMED.
CALLAHAN, Circuit Judge, concurring and dissenting:
I concur in the majority’s opinion only insofar as it
upholds 47 U.S.C. § 339(b)’s prohibition against paid
advertisements by for-profit entities.
I dissent from the majority’s acceptance of § 339(b)’s
prohibition of advertisements on issues of public importance
or interest and for political candidates. As explained by the
Chief Judge in his dissent, and by Judge Bea in his opinion
for the three-judge panel, Minority Television Project, Inc. v.
F.C.C., 676 F.3d 869, 885–89 (9th Cir. 2012), these
restrictions implicate the First Amendment’s core concerns
and are not justified on this record even under the
intermediate standard set forth in FCC v. League of Women
Voters, 468 U.S. 363 (1984). I would hold that these
restrictions are unconstitutional.
40 MINORITY TELEVISION PROJECT V. FCC
Chief Judge KOZINSKI, with whom Judge NOONAN joins,
dissenting:
The United States stands alone in our commitment to
freedom of speech. No other nation—not even
freedom-loving countries like Canada, England, Australia,
New Zealand and Israel—has protections of free speech and
free press like those enshrined in the First Amendment.
These aren’t dead words on paper written two centuries ago;
they live. In many ways, the First Amendment is America.
We would be a very different nation but for the constant
buffeting of our public and private institutions by a
maelstrom of words and ideas, “uninhibited, robust, and
wide-open.” N.Y. Times v. Sullivan, 376 U.S. 254, 270
(1964).
But the First Amendment isn’t self-executing; it depends
on the vigilance of judges in scrutinizing the multitude of
prohibitions, restrictions, burdens and filters that
government—federal, state and local—constantly seeks to
impose on speech and the press. The essence of First
Amendment vigilance is skepticism, not deference.
Governments always have reasons for the things they do and,
for the most part, we accept those reasons as valid, even if
they’re not entirely persuasive. But prohibitions on speech
are different. Whether we engage in strict scrutiny, which
applies to most forms of speech, or intermediate scrutiny,
which my colleagues believe applies here, we don’t uphold
restrictions on speech if the government’s reasons do not, at
the very least, make sense.
The majority embraces every justification advanced by
the government without the least hesitation or skepticism, and
without giving proper weight to the true harms caused by the
MINORITY TELEVISION PROJECT V. FCC 41
speech restrictions in question. The opinion is certainly a fine
example of rational basis review, but if intermediate scrutiny
is to have any bite, we can’t just trot out all of the reasons the
government advances in support of the regulation and salute.
The Supreme Court showed us how intermediate scrutiny
should be done in FCC v. League of Women Voters, 468 U.S.
363 (1984). There, the Court found restrictions on speech
wanting because the government’s justifications were
speculative and any problems could be remedied by less
drastic means. Id. at 385–99. The majority here downplays
League of Women Voters as an obvious case of governmental
overreach, but it wasn’t so obvious to the four Justices who
wrote three separate dissents taking the majority to task for
failing to accord the speech restrictions sufficient deference.
The majority cites the League of Women Voters opinion, but
its approach resembles far more the dissents.
That said, it’s hard to pinpoint exactly where the majority
goes astray. I will note what I consider to be errors, but doubt
I can persuade those not already on board. How could I?
With a standard as mushy and toothless as intermediate
scrutiny, it’s hard to be clearly wrong. A standard that calls
on us to distinguish among shades of gray provides scant
protection to speech: The very indeterminacy of the standard
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, which is why I believe
it’s time to reconsider the applicability of intermediate
scrutiny to broadcast restrictions.
42 MINORITY TELEVISION PROJECT V. FCC
The Court plucked broadcast stations out of the
mainstream of First Amendment jurisprudence in 1969, when
the world of communications looked vastly different. The
only way to reach mass audiences in those days was through
the broadcast spectrum. And no medium of communication
approached the power of radio and television to reach into
people’s homes with sounds and images. Given the scarcity
of the broadcast spectrum and the absence of viable
alternative means of communication, the Court may have
justifiably believed that it was confronted with a market
failure—a bottleneck in the pathways of communication. It
may have served the First Amendment to correct that market
failure by keeping those pathways accessible to a multitude
of views, Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969),
safe for minors, FCC v. Pacifica Found, 438 U.S. 726 (1978),
and otherwise regulated.
I’m certainly not the first one to note that that
rationale—whatever its merits at the time—no longer carries
any force. See, e.g., FCC v. Fox Television Stations, 129 S.
Ct. 1800, 1819–22 (2009) (Thomas, J., concurring). It’s a
fine point whether judges of the inferior courts are bound by
Supreme Court decisions that the Court itself hasn’t yet
bothered to overrule, but whose rationale has been decimated
by intervening developments. I was once of the view that
only the Supreme Court may perform such operations, and
the rest of us must keep applying law we know to be wrong
until the Court tells us otherwise. In fact, I once wrote a
jeremiad warning my colleagues of the perils of treating a
Supreme Court case as overruled, when the Court itself
hadn’t told us so. In that case, we not only defied a six
decades-old Supreme Court precedent, but also dozens of
cases in every other regional circuit. See United States v.
Gaudin, 28 F.3d 943 (9th Cir. 1994) (en banc) (Kozinski, J.,
MINORITY TELEVISION PROJECT V. FCC 43
dissenting). And, as I predicted, the Court granted cert. and
. . . unanimously affirmed us. United States v. Gaudin,
515 U.S. 506 (1995). So I guess the lesson is, we must not
get ahead of the Supreme Court—unless we’re right.
I
The statute here draws a curious line between permissible
and impermissible speech: Advertisements for commercial
goods and services are prohibited, and so are those for
political candidates and issues. 47 U.S.C. § 399b. But
logograms and advertisements for goods sold by
non-commercial entities are permitted. Id. To determine
whether speech falls on the permitted or prohibited side of the
line, the regulator (here the FCC) must evaluate what the
speech says; it must evaluate speech based only on its
content. Moreover, as the majority recognizes, some of the
prohibited speech—namely political and issue advertising—
implicates the First Amendment’s core concern with ensuring
an informed electorate. We must therefore be doubly
skeptical: first, because the restriction is content-based and,
second, because we have traditionally treated some of the
prohibited speech with the greatest solicitude.
The majority declares itself satisfied with the evidence
supporting these prohibitions and distinctions, but the record
is much sparser and far more ambiguous than the majority
acknowledges. There is, for starters, almost nothing in the
congressional record compiled at the time the legislation was
adopted that speaks to the supposed dangers posed by
political and issue advertising. Many witnesses testified
about their fear that “[c]ommercialization [would] make
public television indistinguishable from the new commercial
or pay culture cable services.” Maj. op. 21 (citing Hearings
44 MINORITY TELEVISION PROJECT V. FCC
before the Subcomm. on Telecomms., Consumer Protection,
and Finance of the H. Comm. on Energy and Commerce on
H.R. 3238 and H.R. 2774, 97th Cong. 149 (1981) (Larry
Sapadin, Executive Director, Association of Independent
Video & Filmmakers, Inc.) [hereinafter H. Hgs.]); see also H.
Hgs. at 323 (Walda W. Roseman, NPR). But
commercialization, as that term is commonly understood,
deals with commerce; it says nothing at all about advertising
for political candidates or on issues of public interest.
The majority also points to a few comments suggesting
that Congress feared the influence of political interests. Jack
Golodner, of the AFL-CIO, for example, advocated that
public broadcasting be “insulated from political, corporate,
and, for that matter, labor influence.” See id. at 112.
Congressman Gonzales similarly emphasized the need to
“insulate public broadcasting from special interest
influences—political, commercial, or any other kind.”
127 Cong. Rec. 13145 (1981). But such general concerns
about insulating public television from a variety of influences
say nothing about advertising. No one explained, much less
provided evidence, how allowing stations to accept paid
advertising from politicians would make them subject to
influence by those politicians. No one said a word about
influence by organizations that sponsor issue ads. Stray
comments, unsupported by facts, may be enough to support
legislation under the all-forgiving rational basis test, but
intermediate scrutiny surely calls for more.
There are other lacunae in the legislative record. No one
explains why political and issue ads are dangerous, if
advertising for non-commercial entities (including product
ads) isn’t. If legislators feared influence, why didn’t they
worry about stations falling under the sway of
MINORITY TELEVISION PROJECT V. FCC 45
non-commercial entities? The list of non-commercial entities
is vast. Many are poorly funded and non-controversial (such
as some museums and theater groups), but others are quite
wealthy and influential, including advocacy groups, churches,
foundations, think tanks and fraternal organizations. The
legislation forbids non-profit organizations from advertising
about matters of public concern or candidates for public
office. But nothing prevents them from advertising
themselves and the services they offer, and thereby
presumably influencing the programming of public broadcast
stations. If there are reasons why influence by the Westboro
Baptist Church, Heritage Foundation, Planned Parenthood,
National Rifle Association, Middle East Research Institute,
Family Research Council, Media Matters for America and
AARP poses less of a threat than influence by entities
commenting on issues of public importance or candidates for
public office, they are nowhere to be found in the legislative
record.
Even if we look at the evidence developed after the
legislation was passed—some of it decades later—there isn’t
much to support the ban on political and issue ads. The
majority cites a magazine article stating that in 2008, $2.2
billion was spent on political advertising. Maj. op. 29. So
what? Where’s the evidence that public broadcasters would
suffer adverse consequences if they were allowed to run such
ads? We can’t assume that political campaign ads will have
the same adverse effects attributed to commercial ads (more
on this later). Political ads are inherently more transitory and
episodic—centering on a particular campaign season, ballot
issue or candidate—so it’s far from clear that they would
present the same capture problem attributed to ads for
commercial products, whose producers are in the market for
the long haul. Nobody bothers to explain the connection, and
46 MINORITY TELEVISION PROJECT V. FCC
yet the majority sees no problem. This is hardly rational
basis review, much less intermediate scrutiny.
And the new evidence says nothing at all about issue ads.
Neither of the expert affidavits (such as they are) even
mentions them. There is no magazine article suggesting there
are billions of dollars in issue ads gearing up to invade the
public airwaves. No one suggests that sponsors of issue ads
are waiting voraciously in the wings, yearning to pressure
public broadcast stations into changing their programming.
Not a word. Nor is there a hint of a suggestion that issue ads
are out of keeping with the high-brow character of public
television. And, of course there can’t be, because issue ads
are about ideas. Where’s the beef?
Issue ads can be quite important from a First Amendment
perspective. Aside from generating revenue, which public
televison and radio stations can use to produce more and
better programming, issue ads can help educate the public
about some of the most significant questions of the day:
whether to take military action against foreign nations;
whether private individuals should have the right to carry
concealed weapons; whether minors are entitled to undergo
certain medical procedures without their parents’ consent;
whether we should have capital punishment, and for what
crimes; whether undocumented aliens should be given a path
to citizenship; how the tax burden should be allocated;
whether same-sex couples should be allowed to marry;
whether the government should be reading our e-mails or
listening to our phone calls . . . . The list is endless. How
exactly would public broadcasting as we know it be harmed
by allowing a limited number of paid issue ads that don’t
interrupt programming? My colleagues give the issue ban a
pass, based entirely on the momentum supposedly created by
MINORITY TELEVISION PROJECT V. FCC 47
the ban on commercial advertising. This isn’t intermediate
scrutiny; it’s zero scrutiny.
Which brings us to the one debatable issue—the ban on
advertisements for commercial products and services, which
was at the center of congressional concern when the 1981 Act
was passed. There was, indeed, much hand-wringing about
the dangers of commercialization, most of which the majority
references in its opinion. But there’s nothing that one might
call evidence. The legislation was designed to deal with the
problem of drastically diminished federal funding for public
broadcast stations, and the need for those stations to raise
money from other sources. Congress considered several
fund-raising possibilities, among them various flavors of
commercial advertising, including logograms, institutional
advertisements (promoting companies rather than specific
products) and commercial advertising. It’s fair to say that
none of the witnesses thought commercial advertising was a
good idea, and most thought it would significantly harm
public broadcasting.
Their concerns can be divided into roughly 4 categories:
(1) that adding commercial advertising would force changes
in program format and cause public broadcasting to lose its
distinctive character; (2) that broadcasters’ ability to raise
money commercially would cause subscribers and other
non-commercial sources of funding to withdraw support; (3)
that the need to raise revenue through commercial advertising
would necessitate changes in programming content, so as to
attract larger audiences, leaving no airtime to serve audiences
with less popular tastes; and (4) that there would be an
increase in various costs, ranging from increased labor costs
to the payment of additional royalties for copyrighted
materials to loss of various statutory benefits. In the
48 MINORITY TELEVISION PROJECT V. FCC
aggregate, the witnesses fretted, allowing commercial
advertising would dramatically change the character of public
broadcasting, defeating its mission of serving audiences not
served by commercial stations.
These are certainly weighty concerns, but what’s
remarkable about the testimony presented to Congress is that
they are nothing but concerns. The legislative record contains
no documentation or evidence; there are no studies, no
surveys, no academic analyses—nothing even as meaty as the
rather anemic expert reports introduced by the government in
our case. Sure, a lot of people worried that commercial
advertising would wreck public broadcasting, but people
worry about a lot of things that never come to pass. See, e.g.,
Peter Gwynne, The Cooling World, Newsweek, April 28,
1975, at 64. Where’s the proof, or even the rigorous analysis,
showing that the matters worried about were likely to occur?
It’s certainly not in the legislative record.
I know it’s difficult to prove with certainty what the
future will bring. See, e.g., Turner Broad. Sys. v.
FCC (Turner I), 512 U.S. 622, 665 (1994). Nevertheless, if
we’re conducting some level of heightened scrutiny, not
merely rational basis review, we should insist on something
more than a bunch of talking heads bloviating about their
angst. We should expect, for example, a study of how public
broadcast stations actually operate, how they differ in their
governance and structure from commercial stations and
whether those differences have any bearing on how they are
likely to respond if they were allowed to raise money through
commercial advertising. Or, witnesses might have presented
historical examples shedding light on the likelihood of future
behavior, or the experience of broadcast stations in other
countries. But there’s nothing like that; we’re left to take on
MINORITY TELEVISION PROJECT V. FCC 49
faith that the witnesses’ fears are justified. Such faith isn’t
consistent with the heightened scrutiny courts are supposed
to give legislation that abridges the freedom of speech.
In fact, there was a great deal that Congress could have
considered before resorting to such strict speech
restrictions—things we may not ignore in judging the
legislation under heightened scrutiny. We must consider
whether the speculation about the dangers of commercial
advertising makes sense in light of all the known
circumstances, just as the Court did in League of Women
Voters, 468 U.S. at 385–99. The concerns expressed by the
various witnesses about the dangers of commercial
advertising boiled down to the fear that it would change
public broadcasting into a more commercial enterprise, which
would disserve the segment of the public not being
adequately served by commercial broadcasting.
Does this make sense? Commercial broadcasters operate
the way they do precisely because they’re commercial
entities, whose purpose is to make profits for their
shareholders. Managers of commercial broadcast stations and
networks thus generally measure their success based on the
broad popularity of their shows and the revenue they generate
as a result of commercials and subscriptions. We call this
capitalism, and we’re perfectly content to have the laws of
supply and demand control the behavior of commercial
entities.
But we don’t observe non-commercial entities operating
by the same rules: Museums, charities, churches,
universities, hospitals, theater companies, musical ensembles
and a large variety of other organizations operate on a
non-profit basis, even as similar institutions (e.g., hospitals,
50 MINORITY TELEVISION PROJECT V. FCC
museums, universities, theaters) operate side-by-side with
them on a commercial basis. The lure of profit doesn’t cause
charitable institutions to abandon their missions and reinvent
themselves as commercial entities: The Red Cross doesn’t go
into the business of selling blood or charging for rescue
missions because there’s a quick buck in it; the Met doesn’t
swap programs with the Grand Ole Opry because it thinks it
can make more money playing country music; and food
banks don’t start charging prices that match those of the
supermarket across the street.
We understand perfectly well why this is so. Charitable
and civic organizations have charters and other organizational
constraints that tie them to their mission; they have a variety
of governmental regulations and incentives that keep them
from straying into the commercial arena; they have managers
and staff who are dedicated to the organization’s core
purpose; and they have boards of directors who supervise
them to ensure they stick to it. Just as important is what they
don’t have: shareholders who demand a return on their
investments. Charitable and civic organizations intrinsically
operate by different rules than commercial entities, and it
would never occur to us to pass laws prohibiting the Los
Angeles County Museum of Art from selling automobiles and
dishwashers, even though the sale of such items might well
be profitable and allow the museum to acquire more and
better art.
It thus seems wholly irrational to make undocumented
claims about the likely behavior of public broadcast stations,
were they allowed to air advertisements, without first
considering the ways in which they differ from commercial
entities. And the differences are huge. To begin with, public
broadcasters must, by law, operate as non-profit entities.
MINORITY TELEVISION PROJECT V. FCC 51
47 C.F.R. § 73.621. They must be owned by “a public
agency or nonprofit private foundation, corporation, or
association,” or by a municipality. 47 U.S.C. § 397(6). Any
station that isn’t owned or operated by a state, political
subdivision of a state or a public agency must have a
community advisory board. 47 U.S.C. § 396(k)(8)(A). In
fact, universities operate most public radio stations, while
non-profit community organizations and state government
agencies operate most public television stations. See
Corporation for Public Broadcasting, Who Operates the
Stations?, http://www.cpb.org/aboutpb/faq/operates.html.
Federal funding for public broadcasting stations is also
conditioned on their maintaining programming that is
consistent with the goals of the statute. Federal funds are
distributed by the Corporation for Public Broadcasting, which
may make grants “for production of public television or radio
programs by independent producers and production entities
and public telecommunications entities, producers of national
children’s educational programming, and producers of
programs addressing the needs and interests of minorities,
and for acquisition of such programs by public
telecommunications entities.” 47 U.S.C. § 396(k)(3)(B)(i).
Finally, licenses for public broadcast stations aren’t
handed out on a first-come, first-served basis. In deciding
whether to grant an application for a license, the FCC favors:
(1) “local applicants . . . who have been local continuously for
no fewer than two years”; (2) applicants with “no attributable
interests . . . . in any other broadcast station”; (3) public or
private entities “with authority over a minimum of 50
accredited full-time elementary and/or secondary schools
within a single state”; (4) accredited public or private
institutions of higher learning “with a minimum of five full
52 MINORITY TELEVISION PROJECT V. FCC
time campuses within a single state”; and (5) organizations
that will “regularly provide programming for and in
coordination with [statewide educational] entit[ies]” for use
in schools’ curricula. 47 C.F.R. § 73.7003. Further, to
receive a license, the potential station owner must show that
the proposed station will “be used primarily to serve the
educational needs of the community; for the advancement of
educational programs; and to furnish a nonprofit and
noncommercial television broadcast service.” 47 C.F.R.
§ 73.621.
None of those who presented “evidence”—better
characterized as Chicken Littleisms—about the calamitous
effects of allowing commercial (and political and issue)
advertising on public broadcasting took the slightest account
of these structural constraints. They all predicted that the lure
of advertising dollars would turn public broadcasters into
commercial broadcasters. But is it rational to believe that
public broadcast stations operated by municipalities,
universities and non-profit foundations would risk losing
federal funding (and perhaps their FCC licenses) by
abandoning their traditional viewership in order to compete
with commercial stations for advertising dollars? This strikes
me as about as likely as the Smithsonian turning itself into
Busch Gardens because it decides that roller coaster rides are
more popular than mastodon skeletons.
Still and all, had Congress been presented with evidence
that public broadcast stations could be diverted from their
mission by the lure of lucre, despite the multitude of
structural obstacles—had anyone even mentioned this as a
consideration—I might feel constrained to defer to the
congressional judgment. But no one paid any attention to the
obvious differences between non-profit and commercial
MINORITY TELEVISION PROJECT V. FCC 53
entities, and how they respond to market incentives—even
though there is a well-developed branch of economics that
deals with precisely this subject. See, e.g., Burton A.
Weisbrod, The Nonprofit Economy (1988); Susan Rose-
Ackerman, Altruism, Nonprofits, and Economic Theory, 34 J.
Econ. Lit. 701 (1996); Joseph P. Newhouse, Toward a Theory
of Nonprofit Institutions: An Economic Model of a Hospital,
60 Am. Econ. Rev. 64 (1970).
What’s more, we know for a fact that some of the
witnesses who testified before Congress in 1981 were wrong.
Three of the witnesses, each of whom was worried sick about
the potentially catastrophic effects of commercialization on
public broadcast stations, also made dire predictions about the
pernicious use of logograms. Oy vey! Congress nevertheless
adopted that provision, and logograms have been in use in
public broadcasting for over a quarter of a century. And,
know what? The Cassandras were wrong; public
broadcasting as we know and love it has survived just
fine—perhaps a tad better, as underwriting, including
logograms, generates much-needed revenue for public
broadcasting. See NPR, Public Radio Finances,
http://www.npr.org/about-npr/178660742/public-radio-
finances.
Congress knew that predictions about how commercial
advertising would affect public broadcast stations were
speculative. It therefore sought to develop empirical
evidence by authorizing an experiment that would allow
public broadcasters to air commercial advertising and
expanded underwriting credits. A temporary commission was
established to study the project and report back to Congress.
The majority alludes to this study in its opinion, claiming that
54 MINORITY TELEVISION PROJECT V. FCC
it supports its position, Maj. op. 35–36, but I read the study
very differently.
While written in cautious and somewhat tentative terms,
the report contained a number of findings and conclusions
that severely undermine the doomsday predictions made by
witnesses before Congress and accepted as Gospel Truth by
the majority today. Specifically, the Commission found as
follows:
C “Limited advertising and expanded underwriting
credits both generated revenues in excess of
reported expenses.” Such revenues “equaled
about 8.1 percent of the stations’ total net
income.”
C “In several cases, advertising revenues permitted
stations to acquire specific programs that they
otherwise could not have afforded to
purchase. . . . The demonstration program did . . .
suggest that (at least where advertising or
expanded underwriting revenue is only one source
among many) no movement toward programming
changes resulted.”
C “[W]hile most subscribers and regular viewers
reported initially that they would watch less
public television if advertisements were present,
the second wave of the survey showed no
differences in the amount of time these groups
reported watching.”
C “Although a first wave response suggested that 20
to 40 percent of public television subscribers
MINORITY TELEVISION PROJECT V. FCC 55
might reduce their contributions, the second wave
of the opinion poll showed no significant
differences in the overall amount of giving
reported. Additionally, the poll showed an
increase in the number of subscribers who
reported that they would continue to contribute to
public television.”
C “Analysis of subscription revenues at
participating stations showed . . . [a]n increase in
total number of subscribers and contributors at all
stations compared with the previous year; [n]o
significant differences in total number of
subscribers or total contributions compared to the
control group [stations that did not carry
advertising]; [a] significant decline in average
contribution per subscriber at advertising stations
compared to the control group [which] suggests
that carriage of limited advertising may have
affected giving by large contributors. The decline,
however, also could reflect an influx of new
subscribers contributing smaller amounts to the
stations involved.”
It is true, as the majority notes, that the Temporary
Commission recommended maintaining the advertising ban,
despite these positive findings. Instead of raising revenue
through advertising, the Commission recommended enhanced
federal funding for public broadcasting—at least the majority
did. For this, they were taken to task by the Minority Report,
authored by the National Telecommunications and
Information Administration, an executive agency within the
Department of Commerce. The minority decried the fact that
“[t]he majority report . . . does not fully and fairly reflect the
56 MINORITY TELEVISION PROJECT V. FCC
overwhelmingly positive results of the advertising
demonstration experiment itself. . . . The majority, in short,
seems to have rejected the Congressional directive that we
come up with some new lyrics and appears content instead
simply to sing what by now is a very familiar song.” It’s a
song that echoes loud and clear in today’s majority opinion,
three decades later. Pointing out that “the public’s money is
the easiest of all money to spend—because it doesn’t seem to
belong to anyone,” the minority chastised the majority for
“continuation of the ‘cargo cult’ approach all have seen
before.” Ditto.
Here is how the Minority Report summarized the results
of the demonstration program: “The evidence produced by
the advertising demonstration program is almost completely
positive and affirmative. In no instance did the findings
indicate any significant adverse consequences with respect to
these matters.” The demonstration program “confirmed the
view that people watch and support public television because
they like and enjoy the programming, not just because it is
‘commercial free.’” The Commission’s polling data, for
example, revealed that “no significant audiences were in fact
alienated,” and that stations were able to generate significant
revenues. Although the minority conceded that there were
risks to allowing public broadcasters to air paid
advertisements, because of the significance of the potential
gains, it concluded that “the sounder course for the
Temporary Commission would have been to place maximum
reliance on informed licensee discretion, and minimum
weight on the utility of Washington-imposed constraints.”
The significance of the demonstration program can’t be
overstated: It is the only evidence in the record about the
real-life consequences of allowing public broadcast stations
MINORITY TELEVISION PROJECT V. FCC 57
to run commercial advertisements. And the experience is
overwhelmingly positive. The demonstration program points
to yet another gap in the majority’s reasoning—the failure to
appreciate or accord any weight to the serious adverse free
speech consequences of the advertising ban. The record
suggests three:
First, as the demonstration program illustrates, stations
that receive paid advertising revenue can acquire or produce
programs that they could not otherwise afford. Thus, the loss
of advertising revenue can’t be dismissed as simply a loss of
money; it is, in fact, a loss of speech. We know for a fact
(from the demonstration program) that there are stations
wishing to run content that is consistent with their educational
and civic mission but can’t afford to do so. Advertising
revenue would allow public broadcast stations to acquire
content that will serve their audiences. Additional revenue
would also enable stations to produce local content, which is
one of the identified goals of public broadcasting, rather than
relying on content produced nationally or abroad.
Second, an infusion of additional non-governmental
revenue would help public broadcast stations gain
independence from the federal government. The record
before Congress, and the record in our case, makes it clear
beyond dispute that public broadcast stations are desperately
dependent on federal subsidies. Can broadcasters that are so
dependent on one source of revenue be truly free to speak in
ways that are critical of that source? Would public
broadcasters feel free to run a program exposing corruption
by, say, the chairman of the relevant appropriations
committee? My guess is that any station wishing to produce
such a program would be dissuaded from doing so.
Washington is a small town with a long memory, and no one
58 MINORITY TELEVISION PROJECT V. FCC
wants to get into a grudge match with the goose that lays
golden eggs. The only true independence, the only truly free
speech, comes from having a multitude of funding sources, so
that none is so crucial that it can’t be dispensed with.
Deriving a portion of revenue from commercial advertising,
along with other sources, can help secure that independence.
Third, advertisements are speech. Viewers often see
commercials as no more than annoying interruptions, but the
Supreme Court has recognized that advertisements often
carry important, sometimes vital, information. See, e.g.,
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (lawyer
advertising); Virginia State Bd. of Pharmacy. v. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976)
(prescription drug prices); Rubin v. Coors Brewing Co.,
514 U.S. 476 (1995) (beer labels). Advertisements can be for
annoying, useless or decadent products, but they can also
encourage people to get breast exams, http://goo.gl/MM6sV9;
join the peace corps, http://goo.gl/bfBmiy; get a smoke alarm,
h ttp : / / g o o . g l / w C h m N 0 ; prevent fores t fires ,
http://goo.gl/HrCxQG; vote, http://goo.gl/do9TCc, etc., etc.
Excluding advertising from public broadcasting deprives
viewers of the opportunity to obtain such important
information.
The statute’s ban on issue advertising (for which,
remember, no one gives any justification at all, see p. 46
supra) is particularly troubling, as it deprives public
broadcast audiences of precisely the type of information
we expect an informed public to have: how to vote on
issues of public importance, http://goo.gl/6CRk3J,
http://goo.gl/XLrL9A, http://goo.gl/TL6BQU; the state of
public health, http://goo.gl/PXI7am; and the performance
and funding of our public schools, http://goo.gl/1BRQJu.
MINORITY TELEVISION PROJECT V. FCC 59
Campaign ads can make or break presidential elections,
see, e.g., http://goo.gl/6oGrfy, http://goo.gl/fnFbkh;
http://goo.gl/v0Ju. Can we say that there is really a
substantial—or even a rational—justification for precluding
public broadcast audiences from being educated on issues of
public importance? Is it consistent with the principles of an
informed electorate to deprive those who watch public
television and listen to public radio of an important source of
information?
I understand the concern about turning public
broadcasting into something that is quite different from what
it is today. But why aren’t the structural constraints,
discussed above, sufficient to prevent this? And, if we fear
they’re not, there are many intermediate restraints, far short
of a complete prohibition. The Temporary Commission
suggested limiting the duration and placement of
advertisements, and ensuring diversity of funding (perhaps by
placing a limit on the percentage of revenue any station could
derive from any single source). Surely, anything is better
from a free speech perspective than an outright and total ban,
yet Congress seems to have given this possibility no
consideration. Nor does the majority.
I add only a few words about the two expert declarations
presented by the defendant in the district court; they deserve
no more. Assuming that it’s possible to supplement the
legislative record decades after the legislation is
passed—which to my mind is still an open question, see
Turner I, 512 U.S. at 671–74 (Stevens, J., concurring)—these
experts add nothing to the debate. The Ozier declaration
parrots the worries expressed by the witnesses before
Congress. He predicts that alternative sources of funding
would dry up, that stations would yield to pressure from
60 MINORITY TELEVISION PROJECT V. FCC
advertisers to change their programming, that foundations
would withdraw their support and that various concessions
now enjoyed by public television would be jeopardized.
Ozier provides no new facts, just the same lame predictions
previously made by others—and largely refuted by the
experiment conducted by the Temporary Commission
following the passage of the 1981 legislation.
The Noll affidavit does add some new matter, mostly
irrelevant. For example, Noll comments adversely on the
“advertising of nutritionally undesirable food and . . . the
inclusion of violent content” in commercial stations, and
reports that “[r]esearch has shown that violent program
content causes antisocial behavior among children and food
advertising to children promotes an unhealthy diet that causes
obesity.” What this has to do with the matter under
consideration is unclear; it seems at times like Professor Noll
prepared his declaration for another client and then adapted
it to this case.
In the parts of the declaration that do bear on our case, he
pretty much embraces the cargo cult attitude alluded to by the
Minority Report of the Temporary Commission, calling for
“replac[ing] advertising with government subsidies as the
main source of revenues.” For this you need a Ph.D.?
Noll also concludes, without much support or analysis,
that public broadcast stations would have to change the nature
of their programming to generate significant revenue. This
conclusion is flatly contradicted by the experiment conducted
by the Temporary Commission, which found that stations
could gain substantial revenue without changing their content.
See p. 54–55 supra. Noll doesn’t mention the Temporary
Commission’s Report, preferring to rely on his own intuition
MINORITY TELEVISION PROJECT V. FCC 61
rather than inconvenient real-world evidence. Nor does Noll
discuss, or even acknowledge, the structural constraints that
would likely prevent public broadcast stations from
reinventing themselves as commercial stations. I might not
go so far as to say the Noll report is irrational, but it certainly
doesn’t carry the kind of heft—in light of all the other
available evidence—that the Supreme Court’s analysis in
League of Women Voters demands.
In sum, the evidence presented by the government in
support of these speech restrictions simply doesn’t pass
muster under any kind of serious scrutiny—the kind of
scrutiny we are required to apply when dealing with
restrictions on speech. Even if intermediate scrutiny
applies—and I doubt that it does, see pp. 61–64 infra—there
is simply not enough there to satisfy a skeptical mind that the
reasons advanced are rational, let alone substantial.
II
Because “[t]he text of the First Amendment makes no
distinctions among print, broadcast, and cable media,”
Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,
518 U.S. 727, 812 (1996) (Thomas, J., concurring in the
judgment in part), Red Lion and Pacifica represent a jarring
departure from our traditional First Amendment
jurisprudence. As Justice Thomas explained in his lucid
concurrence in Fox Television, “Red Lion and Pacifica were
unconvincing when they were issued, and the passage of time
has only increased doubt regarding their continued validity.”
129 S. Ct. at 1820. Justice Thomas’s words echo the views
of Chief Judge Emeritus Harry Edwards in Action for
Children’s Television v. FCC, 58 F.3d 654, 673 (D.C. Cir.
1995) (en banc) (Edwards, J., dissenting): “There is no
62 MINORITY TELEVISION PROJECT V. FCC
justification for this apparent dichotomy in First Amendment
jurisprudence. Whatever the merits of Pacifica when it was
issued[,] . . . it makes no sense now.”
Today, Red Lion looks even more quaintly archaic than at
the time Judge Edwards and Justice Thomas made their
observations. To start, the broadcast spectrum has vastly
expanded, due in part to advances in technology, including
the “switch from analog to digital transmission, which . . .
allow[s] the FCC to ‘stack broadcast channels right beside
one another along the spectrum.’” Fox Television, 129 S. Ct.
at 1821 (Thomas, J., concurring) (quoting Consumer Elecs.
Ass’n v. FCC, 347 F.3d 291, 294 (D.C. Cir. 2003)). And
“traditional broadcast television and radio are no longer the
‘uniquely pervasive’ media forms they once were. For most
consumers, traditional broadcast media programming is now
bundled with cable or satellite services.” Id. at 1822. This
trend has continued and accelerated, with the delivery of
much content by way of cellular networks and the internet.
See, e.g., Jim Edwards, People Now Spend More Time
Watching Their Phones than Watching TV, Business Insider
(Aug. 15, 2012), http://goo.gl/jtrVNk; AJ Marechal, CW
Offers ‘Husbands,’ More Web Fare from Digital Studio,
Variety.com (Mar. 27, 2013), http://goo.gl/Cww32h; Maura
McGowan, Original Series Help Netflix Turn a Tidy Profit,
Adweek (Apr. 23, 2013), http://goo.gl/9oy0gb; Procon.org
and Pivot.tv Join Forces on Critical Thinking Campaign,
Procon.org (Sept. 13, 2013), http://goo.gl/ibGN1t; Jon
Robinson, New ‘Madden’ Includes NFL Sunday Ticket, ESPN
Playbook (May 17, 2013), http://goo.gl/gKJRVZ; Alex
Stedman, Disney Invites Kids To Bring iPads to Theaters for
‘The Little Mermaid’ Re-Release, Variety.com (Sept. 11,
2013), http://goo.gl/YjEfUw; Esther Zuckerman, Netflix Has
Done It Again: ‘Orange Is the New Black’ Has ‘Astounded’
MINORITY TELEVISION PROJECT V. FCC 63
the Critics, The Atlantic Wire (July 2, 2013),
http://goo.gl/mML64G.
For reasons explained at length above, I don’t think the
standard of review matters very much to the outcome in this
case; the restrictions on advertising by public broadcast
stations fail any standard of review more rigorous than a
straight-face test. But under an intermediate standard of
review, the result is highly unpredictable, as judges of
intelligence and good faith can view the situation very
differently. This isn’t because judges have failed; the
standard itself promotes uncertainty. Because there are no
absolutes, judges are left to exercise their judgment based on
their personal experiences and predilections.
“Liberty finds no refuge in a jurisprudence of doubt.”
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833, 844 (1992). Nowhere is this truer than in the
case of speech, which is especially vulnerable to uncertainties
in the law. This is why we have special doctrines applicable
to speech only. For example, we allow those whose rights
haven’t been violated to bring suit, and we’ll strike down a
law, even if it has some constitutional application, if it’s
substantially overbroad. See, e.g., Broadrick v. Oklahoma,
413 U.S. 601 (1973); Dombrowski v. Pfister, 380 U.S. 479(1965); see also N.Y. Times v. Sullivan, 376 U.S. 254, 272
(1964) (freedom of speech requires “breathing space”
(internal quotation marks omitted)). It is our constitutional
duty to make the law of free speech clear and predictable.
To the extent Red Lion was justified by the state of
technology at the time it was written, it’s certainly not
justified by the state of technology today. The bottlenecks
and monopolies that existed in the field of mass
64 MINORITY TELEVISION PROJECT V. FCC
communications when Red Lion was decided no longer exist.
It’s one of the oldest maxims of the common law that once
the reason for a rule ceases, the rule itself disappears. It’s a
maxim the Supreme Court recognizes and expects inferior
courts to honor. See Funk v. United States, 290 U.S. 371,
385–87 (1933). We shouldn’t turn a blind eye to the vast
technological changes in the field of mass communications
that make broadcasting less significant and pervasive every
day. We not only have the right, but also the constitutional
duty, to brush aside a precedent—venerable though it may
be—when its rationale has been hollowed out as if by
termites.
* * *
I would strike down as unconstitutional the statute and
corresponding regulations that prohibit public broadcast
stations from carrying commercial, political or issue
advertisements. I would reverse the district court and remand
with instructions that summary judgment be granted in favor
of the plaintiffs. And I would set public television and radio
free to pursue its public mission to its full potential. We’d all
be better off for it.