TLJ News from November 21-25, 2012

9th Circuit Grants En Banc Rehearing in Challenge to Ban on Advertising by Public Broadcasters

11/21. The U.S. Court of Appeals (9thCir) issued an order granting en banc rehearing in Minority Television Project v. FCC.

On April 12, 2012, a three judge panel issued its divided opinion [49 pages in PDF] regarding the constitutionality of the statutory ban, codified at 47 U.S.C. 399b, on advertising by public broadcasters. See, story titled "9th Circuit Holds Unconstitutional the Ban on Public Broadcasting of Political and Issues Advertising" in TLJ Daily E-Mail Alert No. 2,372, April 16, 2012.

Section 399b provides that "No public broadcast station may make its facilities available to any person for the broadcasting of any advertisement".

It also provides that "advertisement" means "any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which 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."

Minority Television Project, a public broadcaster, filed a complaint in the U.S. District Court (NDCal) alleging that this ban violates its First Amendment free speech rights.

The District Court, and the three judge panel, applied intermediate scrutiny -- "narrowly tailored to further a substantial government interest". This is a standard of review was invented by the Supreme Court.

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, or of the press ..."

The District Court upheld all three parts of the ban.

The Court of Appeals panel concluded that, as to the bans on "public importance" ads and "candidate for political office" ads, the government has a substantial interest in noncommercial public broadcasting, and that Section 399b furthers this interest, but that this interest is not sufficiently tailored to survive broadcast scrutiny. Hence, the bans in subsections (2) and (3) are unconstitutional.

The Court of Appeals also held that the ban on products and services advertising satisfies the intermediate scrutiny test.  Hence, the ban in subsection (1) is constitutional.

Hypothetically, the en banc panel, or eventually, the Supreme Court, could write that the rationale for allowing regulation of broadcast speech is obsolete, and move towards abandonment. If so, this might result in holding unconstitutional all three parts of Section 399b.

On the other hand, the court could adhere to intermediate scrutiny, perpetuate regulation of broadcast speech, and uphold the statute in its entirety.

This case is Minority Television Project, Inc. v. FCC, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 09-17311, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 3:06-cv-02699-EDL.

More News

11/21. The U.S. Court of Appeals (3rdCir) issued its opinion [55 pages in PDF] in US v. Pavulek, affirming a conviction and life sentence for child porn related offenses. The Court of Appeals affirmed the District Court's denial of a motion to suppress evidence obtained pursuant to court warrants for an e-mail account and work computer. The Court of Appeals held that the Magistrate Judge lacked probable cause to issue the warrants, but that since the officers reasonably relied on the warrants in good faith, it was appropriate to deny the motion to suppress. This case is US v. Paul E. Pavulek, U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 11-3863, an appeal from the U.S. District Court for the District of Delaware, D.C. No. 1-09-cr-00043-001.

Go to News from November 16-20, 2012.