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Court Permits Political Advertising on Public Radio, TV

U.S. Appeals Court rules that PBS, NPR and others can air political and public issue ads. Paid ads from for-profit companies can still be banned

Public radio and TV stations can now air political and "public issue" advertisements, a United States Appeals Court ruled on Thursday.

In a 2-1 ruling, the appeals court argued that a law banning such advertisements violated the First Amendment because it places too great a restriction on speech without serving a substantial government interest. Those ads would not substantially affect the broadcasting of educational programming, which Congress' law was designed to protect, the court said.

Also read: Mitt Romney on PBS: 'Big Bird Is Going to Have Advertisements

This will no doubt have major implications on the election this year, opening up the public airwaves to all sorts of political ads. However Judge Carlos T. Bea, writing the majority opinion, stressed the violation of free speech.

“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,” Bea wrote.

The law prohibiting these various advertisements is intended to protect the public stations from having to broadcast programs with mass appeal in order to satisfy advertisers. By limiting the advertising, these stations can maintain their editorial independence and air educational programs.

The Minority Television Project, a nonprofit that runs KMPT-TV in San Francisco, challenged the law as unconstitutional after it was fined by the Federal Communications Commission for running paid ads from for-profit companies. The FCC declined to comment on the ruling.

The Court ruled that those types of ads can still be prohibited, but that political and public issue ads can not. 

Those parts of the law are unconstitutional because there “is simply no evidence in the record […] to connect the ban on this speech to the government’s interest in maintaining certain types of programming.”

It also said that there is no evidence that political and public issues ads, which were also made legal, are more harmful than ads for goods and services by non-profits, which are legal.

“Public issue and political advertisements pose no threat of 'commercialization,'" Bea wrote. "By definition, such advertisements do not encourage viewers to buy commercial goods and services. A ban on such advertising therefore cannot be narrowly tailored to serve the interest of preventing the 'commercialization' of broadcasting."

The court upheld the ban on ads for goods and services from for-profit companies after deciding it could look at those categories of advertising separately.

It identified all three bans as a “content-based ban on speech.”  Such a ban is only acceptable if there is substantial government interest and if permitting the speech would do substantial harm to those interests.

While the government “has a substantial interest in ensuring high-quality educational programming on public broadcast stations,” that is not something Minority disputed. It came down to whether allowing political ads would have a major impact on the airing of educational programs.

The court ruled it did not.