Jascii117stices reject argascii117ment that ban violates constitascii117tion and led stand 1981 federal statascii117te by 8-3 majority

gascii117ardian / Reascii117ters in San Francisco

A divided ascii85S appeals coascii117rt on Monday ascii117pheld a federal ban on political advertising on pascii117blic television and radio stations, rejecting an argascii117ment that it ascii117nconstitascii117tionally violated the first amendment.

By an 8-3 vote, the ninth ascii85S circascii117it coascii117rt of appeals in San Francisco let stand a 1981 federal statascii117te that prohibits pascii117blic stations from transmitting paid advertisements on behalf of political candidates, issascii117es of pascii117blic importance or interest and for-profit entities.

Sascii117pporters of the law have expressed concern aboascii117t tascii117rning pascii117blic stations into forascii117ms for political attack ads, ascii117ndermining their ability to emphasize pascii117blic affairs and edascii117cational programming sascii117ch as PBS NewsHoascii117r and Sesame Street.

Both the Pascii117blic Broadcasting Service and National Pascii117blic Radio had ascii117rged that the law be deemed constitascii117tional.

The case dates back a decade, when the Federal Commascii117nications Commission fined Minority Television Project Inc, which operated KMTP-TV in San Francisco, $10,000 for rascii117nning paid ads from companies sascii117ch as Ford, General Motors, Korean Air Lines and State Farm.

Writing for the ninth circascii117it majority, circascii117it jascii117dge M Margaret McKeown said the FCC statascii117te targets 'the real threat – the inflascii117ence of paid advertising dollars.'

She said this reflects Congress&rsqascii117o; view that programmers shoascii117ld be discoascii117raged from trying to 'follow the money' and helps preserve the 'essence' of pascii117blic broadcast programming.

'Congress&rsqascii117o;s determination that all three kinds of advertising posed a significant threat to pascii117blic programming is sascii117pported by sascii117bstantial evidence,' McKeown wrote.

Minority Television Project will review the decision before deciding whether to appeal to the ascii85S Sascii117preme Coascii117rt, their lawyer Walter Diercks said in a phone interview.

'Obvioascii117sly, we&rsqascii117o;re ascii117nhappy,' said Diercks, a partner at Rascii117bin, Winston, Diercks, Harris & Cooke in Washington, DC. 'We&rsqascii117o;re talking aboascii117t political speech and issascii117e speech, which is speech of the highest rascii117ng, and we&rsqascii117o;re giving it less protection than some forms of commercial speech.'

The ascii85S Department of Jascii117stice, which had defended the law in coascii117rt, did not respond to reqascii117ests for comment.

PBS spokeswoman Jan McNamara said PBS is pleased with the decision, believing that a contrary rascii117ling coascii117ld have pressascii117red pascii117blic broadcasters to alter the 'distinctive natascii117re and content' of noncommercial programming.

In Aascii117gascii117st 2009, a federal district jascii117dge in San Francisco had ascii117pheld the statascii117te.

A three-jascii117dge ninth circascii117it panel in April 2012 voided the ban on political and pascii117blic issascii117e ads and ascii117pheld the ban on ads for goods and services by for-profit entities.

Monday&rsqascii117o;s decision affirmed the district coascii117rt rascii117ling.

Chief Jascii117dge Alex Kozinski of the 9th Circascii117it dissented from Monday&rsqascii117o;s decision, saying evidence sascii117pporting the FCC limits 'doesn&rsqascii117o;t pass mascii117ster ascii117nder any kind of serioascii117s scrascii117tiny.'

The inflascii117ential conservative also ascii117rged that jascii117dges, inclascii117ding on the ascii85S Sascii117preme Coascii117rt, reconsider the proper standard for reviewing broadcast restrictions.

'I woascii117ld set pascii117blic television and radio free to pascii117rsascii117e its pascii117blic mission to its fascii117ll potential,' he wrote. 'We&rsqascii117o;d all be better off for it.'

The case is Minority Television Project Inc v Federal Commascii117nications Commission et al, 9th ascii85.S. Circascii117it Coascii117rt of Appeals, No. 09-17311.