Paul Watler's Perspective: Political Ads on Public Broadcast Stations

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Does Congress have constitutional authority to ban paid political advertising from public broadcast stations? Ad-weary viewers may learn the answer just in time for the next presidential election.

Many Americans this fall experienced political advertising fatigue. It seemed impossible in battleground states like Ohio and Florida to avoid an ad from the Obama or Romney campaigns when switching on a television or radio.

By many estimates, the 2012 presidential campaign surpassed $1 billion in spending on broadcast advertisements. Spending by Democratic and Republican presidential campaigns more than doubled from 2008, which also saw an all-time high. No doubt those records will be surpassed again in another four years.

One of the few places of refuge from the campaign advertising onslaught was public television and radio. For decades, PBS and NPR and their affiliates have been ad-free zones when it comes to paid political spots. That may change depending on a little-noticed First Amendment case working its way through the federal courts.

Governor Mitt Romney promised in the first 2012 presidential debate to cut the federal deficit by ending subsidies to public broadcasting for shows such as Sesame Street. President Obama counter-punched in favor of Big Bird. But in 2016, rather than the candidates debating subsidies to Big Bird, they may be paying the giant yellow creature to carry their latest political ads.

Governor Mitt Romney promised in the first 2012 presidential debate to cut the federal deficit by ending subsidies to public broadcasting for shows such as Sesame Street. President Obama counter-punched in favor of Big Bird. But in 2016, rather than the candidates debating subsidies to Big Bird, they may be paying the giant yellow creature to carry their latest political ads. At least, that is the prospect presented by Minority Television Project, Inc. v. Federal Communications Commission.

Last April, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled unconstitutional a federal statute that prohibits public broadcast stations from accepting paid political advertising. The Ninth Circuit panel ruled in Minority Television Project that the statutory provision was not narrowly tailored to serve a substantial interest of the government of preserving the mission and nature of educational public broadcasting. The opinion found that the statute did not withstand intermediate scrutiny because there was no evidence before Congress when it enacted the ban to justify the content-based restriction on speech.

The government's petition for en banc review by the entire Ninth Circuit was recently granted, and the panel opinion was vacated. An opinion by the full Ninth Circuit in 2013 may well be a prime contender for review by the Supreme Court in 2014. Should the courts affirm that the restriction by Congress on public broadcast political ads is unconstitutional, the FCC would likely undertake rule-making to work out the details.

So, we are a long way from the final word on this case. But by the time that the next set of presidential candidates starts testing the waters for the 2016 campaign, we may know if they will be permitted to buy advertising time on Sesame Street.

Nothing may change even if the final ruling weighs against the constitutionality of the public broadcast prohibition. Many stations—perhaps the vast majority—may be reluctant to accept such advertising for a variety of reasons. Some will share the notion that public broadcast stations should continue as a refuge from political ad wars. But it appears at least one public broadcaster—the Palo Alto, California station operated by Minority Television Project, Inc.,—is eager to accept advertising dollars from political campaigns.

Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.