Minority Television Project, Inc. v. Federal Communications Commission
676 F.3d 869
9th Cir.2012Background
- Minority Television Project operates KMTP-TV, a public broadcast station in San Francisco, subject to 47 U.S.C. § 399b banning certain advertisements.
- § 399b defines 'advertisement' to include for-profit promotional messages, messages on matters of public importance, and political messages; prohibits these on public stations.
- FCC previously fined Minority about 1,900 violations (1999–2002) for paid promotional messages from for-profit entities and collected a $10,000 fine.
- District court granted cross-motions for summary judgment; Minority challenged § 399b as an unconstitutional content-based restriction on speech under First Amendment.
- The Ninth Circuit must determine appropriate level of scrutiny for broadcast regulation and severability of § 399b’s subsections.
- The court ultimately upholds § 399b(a)(1) under intermediate scrutiny but strikes § 399b(a)(2) and (a)(3) as unconstitutional and remands for entry of judgment accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of scrutiny for § 399b | Broadcast speech uses heightened scrutiny under League. | Broadcasts follow intermediate scrutiny per League of Women Voters. | Intermediate scrutiny governs |
| Severability of § 399b's subsections | All provisions should be treated together to avoid severance. | Statute should be severable; analyze §§ (a)(1) separately from (a)(2)-(a)(3). | Subsections severable |
| Constitutionality of § 399b(a)(1) | For-profit advertising restrictions are narrowly tailored to protect educational programming. | Ban on for-profit ads is necessary to preserve noncommercial programming. | § 399b(a)(1) upheld under intermediate scrutiny |
| Constitutionality of § 399b(a)(2) and (a)(3) | Public issue and political ads should be allowed or evaluated under strict scrutiny. | Public issue/political ads may be banned to protect educational programming; intermediate scrutiny suffices. | Unconstitutional; struck down |
Key Cases Cited
- League of Women Voters of Ky. v. FCC, 468 U.S. 364 (U.S. 1984) (broadcast regulation subject to intermediate scrutiny; cannot be overly broad)
- FCC v. League of Women Voters, 468 U.S. 364 (U.S. 1984) (foundational broadcast-specific scrutiny standard)
- Turner Broad. Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 622 (U.S. 1994) (set forth narrow tailoring under intermediate scrutiny for broadcasting)
- Turner Broad. Sys., Inc. v. F.C.C. (Turner II), 520 U.S. 180 (U.S. 1997) (evidence-based refinement of narrow tailoring; substantial evidence required)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (U.S. 1993) (content-based handbill ban not narrowly tailored; non-broadcast context)
- Citizens United v. FEC, 130 S. Ct. 876 (U.S. 2010) (campaign speech and broader First Amendment considerations; broadcast context distinguished)
- Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (U.S. 2011) (highlights heightened scrutiny for certain speech restrictions; not controlling here but relevant)
- FCC v. Pacifica Foundation, 438 U.S. 726 (U.S. 1978) (context for broadcast regulation and content-based restrictions)