Let’s hope we don’t see Mitt Romney or President Barack Obama angling for votes in between Sesame Street segments — but that could be the reality in the future. An appeals court in California ruled that banning political and public-issue ads from public TV and radio stations is unconstitutional. Oh, First Amendment! Look what you’ve done!
AdAge says the court ruled that there wasn’t any concrete evidence to support the Federal Communications Commission’s ban on the paid ads. The FCC had said those kinds of ads would harm niche programming.
It all started with a lawsuit brought by Minority Television Project, a California nonprofit that operates San Francisco Bay-area public-TV station KMTP. The station had been fined by the FCC for violating their ban on paid ads from corporations, but they claimed the ban was at odds with thei right to free speech.
In the past, public TV and radio stations weren’t allowed to air ads for or against political candidates, ads expressing view on topics of public interest, and ads for products placed by for-profit companies.
The majority opinion from Circuit Judge Carlos T. Bea says that the current law runs into trouble with its content-based selectivity.
The fact that Congress chose not to ban all advertisements, but left a gap for certain nonprofit advertisements, is fatal to its case. That is the kind of picking-and-choosing among different types of speech that Congress may not do, absent evidence to show that Congress’s favoritism is necessary to serve its substantial interest.
However, the ban on product ads from for-profit entities was upheld, because it could nudge programmers from their high quality programming into “lowest-common denominator fare seen on broadcast and cable networks,” says AdAge.
If at first you don’t succeed, try again, Congress. The court said if they can come up with evidence that broadcasting the ads would actually cause harm, that stations would end up changing program content, they’ll consider the case again.