F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M I N O R I T Y T E L E V I S I O N P R

O J E C T , I N C ., Plaintiff-Appellant

,

v

.

F E D E R A L C O M M U N I C A T I O N S C O M M I S S I O N ; U

N I T E D S T A T E S O F A M E R I C A , Defendants-Appellees

,

and

L I N C O L N B R O A D C A S T I

N G C O M P A

N Y , Intervenor

. N o. 09-17311

D.C. No. 3:06-cv-02699- EDL

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Eliz abeth D. L aporte, Mag istrate J udg e, Presiding

Arg ued and Submitted En B anc March 19, 2013—San F rancisco, California

F iled December 2, 2013

B efore: Alex Koz inski, Chief J udg e, and J ohn T. Noonan, B arry G. Silverman, M. Marg aret McKeown, Kim McL ane W ardlaw, W illiam A. F letcher, Ronald M. Gould, Marsha S. B erz on, J ohnnie B . Rawlinson, Consuelo M. Callahan and Andrew D. Hurwitz

, Circuit J udg es.M I N O R I T Y T E L E V I S I O

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Opinion by J udg e McKeown; Partial Concu rrence and Partial Dissent by J udg e Callahan; Dissent by

Chief J udg e Koz inski

SUMMARY *

P ublic Television

The e n banc court a ffirmed the district court’s summary judg ment in favor o f the g o vernment in an action broug ht b y

a public television broadcaster challeng ing

, on F irst Amendment g rounds, 47 U.S.C. § 399b, which prohibits public rad i o a nd television stations from transmitting p aid advertisements for for-profit entities, issue s of public importance or interest, and political candidates.

Apply ing intermediate scrutiny

, the court upheld the

a d vertising ban as constitutional. The panel concluded t h at substantial e vidence before Congr ess supported the conclusion that the advertising prohibited by § 399b posed a threat to th e noncommercial, educational n ature o f noncommercial educational p rog ramming and that additional evidence bore out Cong ress’s predictive judg ment in enacting § 399b. The c ourt held that the g overnment has a substantial inte r e s t in imposing advertising r estrictions in o r der to preserve the essence of public broadcast prog ramming . The
court further held that § 3 9 9 b ’ s restrictions were narrowly tailored to the harms Cong r ess soug ht to prevent and that the

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M I N O R I T Y T E L E V I S I O

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restrictions left untouched speech that did not undermine the
g oals of the statute.

Th e c o u r t rejected the assertion that the § 399b was overinclusive because it prohibited political and issue advertising and underlin c l usive because it p ermitted advertising by non-profit entities. F inally

, the c ourt affirmed the district court’s dismissal of the a s -a pplied challeng es to § 3 9 9 b and its challeng e to the related reg ulation, 47 C.F .R. § 73.621(e), on the g rounds that jurisdiction over c halleng e s to F e deral Commun i ca tion Commission orders lies

ex c l u s i v e ly in the court o f appeals; as such, federal district courts lack jurisdiction over appeals of such orders.

Concurring and dissenting

, J u dg e Callahan stated that she concurred in the majority ’s opinion only insofar a s it upholds 47 U.S.C. § 339(b)’s prohibition ag ainst paid advertisements by for-profit entities. She dissented f r o m the majority ’s acceptance of § 339(b)’s prohibition of advertisements on issues of public importance or interest a n d for political candidates.

Dissenting

, Chief J udg e Koz inski, with w hom J udg e Noonan j o i n e d, stated that would strike d own a s unconstitutional the statute and c orresponding reg ulations that prohib i t p ublic broadcast stations from carry ing

commerc i al

, political o r issue advertisements. Chief J udg e Koz inski stated that t h e evidence presented by the
g overnment in support o f thes e s peech restrictions d oesn’t
pass muster under any kind of serious scrutiny

, and that even if int ermediate scrutiny applies there is simply not enoug h there to satisfy a skeptical mind that the reasons advanced a re rational, let alone substantial.M I N O R I T Y T E L E V I S I O

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COUNSEL

W a lter Elmer Dier c k s (arg ued), Rubin, W inston, Diercks, Harris & Cooke, L L P, W ashing ton, D.C.; J ohn L

. F itz g erald, Pinnacle L aw G roup, San F rancisco, California, f or PlaintiffAppellant.

Mark B

. Stern (arg

ued) and Samantha L

. Chaifetz

, Attorney s, Appellate Sta f

f

, United States Department o f J ustice, Civil Division, W a shing ton, D.C.; J oseph P. Russoniello, United St a t e s Attorney ; T ony West, Assistant Attorney General; Austin C. Schlick, General Counsel, J acob M. L ewis, A cting Deputy General Counsel, J o el Marcus, A ttorney , and Maureen K

. Fl ood, Attorney
, F e deral Communications Commission, W a shing ton, D.C., for Defendants-Appellees.

J oy ce Slocum and G reg ory Allan L ewis, N ational Public Radio, I nc., Washing ton, D.C.; K ather ine L auderdale a nd Thomas Rosen, Public B r oadcasting Service, Arling ton, Virg inia, for A mici Curiae National Pub l i c Radio, I nc., a nd Public B roadcasting

Service.

OP INION

McKEOW

N, Circuit J udg e:

Public te levision—a fix ture of American life for d e c a d e s

— has showcased Master p i e c e T h e a t e r , P BS NewsHour, c hildren’s prog rams such as Sesame Stre e t a nd Curious G eorg e, a

nd many more audience favorites. The h allmark of public broadcasting has been a long

standing restric t i o n o n paid advertising to minimiz e commercializ ation. I n a classic case of “follow the money , ”M I N O R I T Y T E L E V I S I O

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C o ng ress recog niz ed that advertising would chang e t h e character of p u blic broadcast prog ramming and undermine
t h e i n t e n d e d d i s t i n c t i o n b e t w e en c o m m e r c i a l a n d noncommercial broadcasting

.

Public broadcast radio a n d television stat i o n s a re reg ulated by federal statute. Under 47 U.S.C. § 399b, public stations are prohibited from transmitting paid advertisements for for-profit entities, issues o f public importance or interest, and p olitical candidates. These restrictions w ere adopt e d t o

m i n i m i ze c ommercializ ation of public broadcast st a t i o n s , a l s o known a s noncommercial educational ( “ NCE”) stations because they are “ used primarily to serve the educational needs of the community ; for the advancement of educational
prog r ams; a

nd to f u r nish a nonprofit and noncommercial television broadcast service.” 47 C.F

. R. § 73.621.

Minority Television Project (“Minority TV”), a p u blic television broadcaster, challeng es the advertising r e strictions

as facially unconstitutional under the F irst A m e ndment. Apply ing intermediate scrutiny

, as counseled by the Supreme Court in FCC v. League of W o men Voters
, 468 U. S

. 3 64 (1984), we uphold the a dvertising ban as constitutional. W e also affirm the district court’s dismissal of Minority TV’s asapplied c hal l en ge s to § 399b and its challeng e to the r elated
reg ulation, 47 C.F .R. § 73.621(e).

B A C K G R O U N D

I. N O N C O M M E R C I A L E D U C A T I O N A L S T A T I O N S

F or three-quarters of a c entur y , the F ederal Communica t ions Commission (“F CC”) has set aside broadcasting c h annels for noncommercial educationalM I N O R I T Y T E L E V I S I O

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stations. See 3 F ed. Reg

. 364 (F eb. 9, 1 9 3 8 ) (reserving channels for NCE F M radio stations); Sixth Report & Order

, 41 F .C.C. 1 4 8, 158–59 (1952) (reserving channel s for NCE television stations); see also 47 U .S.C. § 303 (a)–(b) (authoriz ing the F CC to classify radio statio n s a n d “[ p] rescribe the nature o f t he service to be rendered by e ach class o f licensed stations”). The F CC e x plaine d t hat it was reservin g a portion of the b roadcast spectrum f o r NCE television st a tions because of “the important contributions which n oncommercial educational television stations c an make in educating t h e people both in school—at all levels—and also the adult p ublic,” and the “ hig h quality ty pe of prog ramming ” available on NCE stations—“prog ramming of an entirely different character from that available on most commercial stations.” T h ird Notice of Further P roposed Rulemaking , 16 F ed. Reg . 3072, 3079 (1951).

Fr o m the start, the F CC recog niz ed that a llowing NCE stations to “operate in substantially t h e s a me manner a s commercial a

pplicants” would not further its g oal o f ensuring h i gh q uality educational p rog ramming

. 41 F .C.C. at 1 6 6 (1952). I nitially

, N CE stations w e re prohibited from airing
any p romotional conte n t

— even if it was unpaid—and were

o n ly p ermitted to identify p rog ram underwriters by nam e. See 1 7 F ed. Reg

. 4062 (1952); C o m m ission Policy Concerning the Noncommercial Nature of Edu c a tional Broadcast Stations , 86 F .C.C. 2d 141, 142, 154 (1981).

I n response to concerns that this restriction wa s b r oader than n e cessary to achieve its purpose, the F CC embarked on

an ex tensive notice and comment proceeding betw ee n 1978 and 1981. S

e e 8 6 F. C.C. 2d at 141; Commission Policy Concerning the Noncommercial Nature of Educatio n a l Broadcast Stations
, 9 0 F

. C.C. 2 d 895, 909 (1982). The F CCM I N O R I T Y T E L E V I S I O

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undertook this effort “ with a n ey e toward striking a reasonable balance between the finan c i al needs of such stations a

nd thei r o blig ation to provide an essentially noncommercial broadcast service.” 86 F .C.C. 2d at 141. I n crafting new rules, the F CC noted that its “interest in creating

a ‘noncommercial’ service has been to remove the
p r og ramming decisions of public broadcasters f rom th e normal kinds o f commercial market pressure s under which broadcasters in the u nreserved spectrum u sually operate.” Id.

a t 142. Cog niz ant of F irst Amendment concerns, the FC C stated that it was adopting “ the minimum reg ulatory structure that preserves a reasonable distinction b etwee n c ommercial and noncommercial broadcasting .” Id. at 144. At the end o f leng thy d el i b e r a tion, the F CC in 1981 set out a new, liberaliz ed broadcast advertising f r amework. Id. L ater that
y ear, after two day s of hearing s, 1 Cong ress essentially codified the F CC’s new framework in 47 U.S.C. §§ 399a a nd 399b. 2

1 Hea rin gs b efo re th e S

ub co mm. o n T

eleco mms, Co n s u mer Pro tectio n , a n d Fin a nce o

f th e H. Co mm. on En erg

y a n d Co mmerce o n H.R. 3 2 38 a n d H.R. 2 7 74
, 9 7 th Co n g

. (1 98 1 ) (h erein af ter “ H. Hg s.”). H.R. 3 2 38 (“ T h e P u b lic B ro ad castin g A m en dm en ts A ct o f 19 8 1”) w as p assed b y th e H o u se, b u t § 3 9 9 a an d § 3 9 9 b

, alo n g w i th th e rest of th e P u b lic B ro ad castin g A m en d m en ts A ct o f 1 9 8 1, w ere en a c t e d as p art o f th e Om n ib u s B u d g et Reco n ciliatio n A ct o f 1 9 8 1

. P u b

. L

. No

. 9 7

- 35
, 9 5 Stat. 3 5 7 (1 9 8 1 ). W e lo o k to t h e leg islativ e h isto ry o f H.R. 3 2 3 8 f o r th e reco rd b ef

o re C o n g ress

w h en it en acted § 3 9 9 b

.

2 T h ere w ere tw o m in o r d if f eren ces b etw een th e FCC’ s f ram ew o rk an d th e en acted statu tes. T h e FCC p ro h ib ite d all g o o d s an d serv ices ad v ertisin g f

o r w h ich co n sid eratio n w as receiv ed

, b u t § 3 9 9b p ro h ib its

su ch ad v ertisin g b y f

o r- pro f it en tities o n ly

. S ectio n 3 9 9 a also d iffers

so m ew h at f ro m th e F CC’ s treatm en t o f d o n o r ack n o w led g m en ts. 9 0 F.C.C. 2 d at 9 0 1

– 0 2

.M I N O R I T Y T E L E V I S I O

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Section 399b—the h eart of this case—prohibits p aid

a d v e rtising

, ex cept for advertising for g oods a nd servic e s offered by non-profit org aniz at ions. A n “advertisement” is defined as material transmitted in ex chang e for r emuneration that is intended:

(1) to promote any service, facility

, o r product offered by any person who is eng ag ed in such offering for profit;

(2 ) to ex press the views o f any person with respect to any matter of public importance or interest; or

(3) to support or oppose any c andidate for political office.

§ 399b(a). Section 399b a llows the a i r i ng of promotional
content for which consideration is not r e c e i ved. Section 399a, which is n ot at issue here, permi t s the use of nonp r o m o t i o n a l i d e n t i f

y i n g i n f

o r m a t i o n i n d o n o r acknowledg ments (for ex ample, log og rams and location information). This scheme has been the law for more than 30
y ears.

II. M I N O R

I T Y TV P R O C E E D I N G S

Minority TV is the licensee of a noncommerci al educational television station in San F rancisco subject to the advertising restrictions in 47 U.S.C. § 3 99b and 47 C.F .R. § 73.621(e). After another broadcaster complained to the F CC about Minority

TV’s underwriting announcements, the F CC comme n c e d a proceeding ag ainst Minority TV. The F CC’s Enforcem e nt B ureau f ound that Minority TV h adM I N O R I T Y T E L E V I S I O

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broadcast a

nnounc em ents that violated § 399b a nd § 73.621(e) more than 1
, 911 times, and issued a Notice o f Apparent L iability for F orfeitu r e in the amount of $10,000. 17 F CC Rcd. 15646 ¶¶ 30, 33 (2002). Minority TV’s
announcements were in ex cha n g e for c onsideration and on behalf of for-profit corporations such a s Chevrolet, F ord, a nd Korean Airlines. Id

. ¶ 1 4. The F CC found that the advertisements included improper promotional lang uag e. Id. ¶¶ 9, 15. The F CC rejected nearly all of Minor i ty TV’s challeng es a

nd issued a forfeiture order for $10,000. 18 F CC Rcd. 26611 (200 3). The F CC denied Minority TV’s application for re v i ew and petition for reconsideration. 20 F CC Rcd. 16923 (2005); 19 F CC Rcd. 25116 (2004).

Minority TV then filed in this court a petition f or r eview of the F CC o rders. After filing the petition, Minority TV p aid the $10,000 forfeiture to the F CC in full. W e transferred the case to district court. 3

The district court dismissed Minority TV’s challeng es to the notice and the forfeiture order, its as-applied c halleng e s to § 399b, and i t s facial and as-applied c halleng e s to § 7 3 .621(e) for lack of jurisdictio n because the c ourts o f appeals have e x clus i v e j u

r isdiction to review F CC reg ulations and orders. 47 U.S.C. § 402(a). T h e court ex plained that § 504(a), the carve-out allowing d istrict courts to r eview forfeiture orders, applied only to unpaid forfeiture action s

. 47 U.S.C. § 504(a).

3 In tran s f errin g t h e c a s e , w e cited 4 7 U.S.C. § 5 0 4 (a) an d Do u g a n v. FCC
, 2 1 F .3 d 14 8 8
, 1 4 9 0

– 9 1 (9 th Cir. 1 9 9 4 ), in w h ich w e h eld th at

“ § 5 0 4 (a) v ests ex clu siv e j u risd i ctio n in th e d istrict co u rts to h ear

en f o rcem en t su its b y th e go v ern m en t a n d su its b y priv ate in d iv id u als seek in g to av o id en f

o rcem en t.” Id

. (em

p h asis ad d ed ).M I N O R I T Y T E L E V I S I O

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On cross-motions for summary judg ment, the d i s t rict
court g ranted summary judg ment for t h e FC C on Minority TV’s facial challeng es to § 399b. Minority Television Project, Inc. v. FCC
, 649 F

. Supp. 2d 1025, 1048 (N.D. Cal. 2009). I nvoking the inte rmediate scrutiny test from League of W omen Voters
, the c ou r t held that the statute was “narrowly tailore d to f urther a substantial g overnment interest.” Id. at 1042. The c ourt pointed to the ample evidence before Cong ress showing that “the advertising
pr o hibitions were necessary to preserve the unique
prog r am m ing p resented b y public stations,” id. at 1037, a nd
to “ additional material before the Court demonstrat[ ing ] that the leg islative concl u sions are supported by substantial evidence,” id. at 1039. I n a d d i t i o n , the court held that the statute was not unconstitutionally vag ue. Id. at 1048.

Minority TV appealed. T he panel upheld the ban on forprofit g oods a

nd services advertising

. Two members o f the divided panel issued separate opinions s t r i k ing down the statute’s ban on issue and p olitical ad v e r t ising

. Minority Television Project, Inc. v. FCC
, 676 F

. 3d 869 ( 9th Cir. 2012). I n dissent, J u dg e Paez determined that §§ 399b(a)(2) and (3)

were neither “patently overinc lusive [nor] underinclusive,” and that there were no “‘less r estrictive means’ to § 399b that [ were] readily available.’” I d. a t 893–95 (Paez

, J
., dissenting ) (citation omitted). Unlike the p a n e l majority

, J u d g e Paez found substantial record e v idence to support § 399b’s narrow tailoring

. I

d

. at 896–97. I n a

n unpublished memorandum disposition, the panel unanimously held that the district court correctly dismissed Minority T V’s as-applied challeng es to § 399b and its challeng es to 47 C.F .R. § 73.621 ( e )

, a n d that § 399b was not unconstitut i o n ally vag ue. 4 A majority o f

4 Min o rity

T V d id n o t ap peal th e d istrict co u rt’ s d ism issal o f its claim s reg ard in g th e n o tice an d th e f o rf eitu re o rd er.M I N O R I T Y T E L E V I S I O

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nonrecused active judg e s voted in favor of rehearing en banc. 704 F .3d 1009 (9th Cir. 2012).

A N A L Y S I S

I. F A C I A L I N T E R

M E D I A T E S C R

U T I N Y C H

A L L E N G

E T O § 399b

A. F R A M E W O R

K F O R A N A L Y S I S

1. Interm e d iate Scrutiny Test for Broadcast Regulation

The Supreme Court laid down the standard for evaluating the constitutionality of § 399b—intermediate scrutiny —in League of W

o men V oters

. 468 U

. S

. a t 3 8 0. That case involved a F irst Amendment challeng e to a statut o r y provision forbidding all NCE stations th a t r e ceived g rants from the Corporation for Public B roadcasting from “eng ag [ ing ] in editorializ ing .” Id. at 366 ( c i ting 47 U .S.C. § 399 (1980)). The Court declined t o ap p l y strict scrutiny

even thoug h th e statute was content-based and “plainly operate[ d] to restrict the e x p r ession o f editorial opinion on matters of public importance”—a form of speech “entitled to t h e most ex acting deg ree of F irst Amendment protection.” Id. at 375– 7 6

. I t ex plained that, “because broadcast
reg ulation involves unique considerations, our cases have not followed precisely the same a pproach that we have applied to other media an d h ave never g one so far as to demand that such reg ulations serve ‘compelling ’ g overnmental interests.” Id. at 376.

T he Court struck d own the ban on editorializ ation be c a u s e it was not “ s u f

f i ciently tailored to the harms it s[ o ug ht] toM I N O R I T Y T E L E V I S I O

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prevent to justify its substantial interference with broadcasters’ speech.” Id. at 392. I n particular, the ban was “manifest[ ly ] imprecis[ e] ”—both “patent[ ly ] overinclusive[ ] and underinclusive[ ]

. ” Id. a t 392, 396. The g overnme nt’s substantial interest in e n s u r i n g that viewers did not think broadcasters’ editorials reflected the views of the g overnment could “ be fully satisfied b y less restrictive means that [were] readily available.” Id. at 395.

L ike the statute a t issue in League of W omen Voters
, § 399b is a content-based broadcast reg ulation, and w e may uphold the statute’s r estrictions o n advertising only if we a re satisfied that they are “narrowly tailored to further a substantial g overnmental interest.” Id. at 38 0

. I n addition, because subsections (a)(2) and (a)(3) burden public issue a nd
po litical speech, we must be “particularly wary in assessing [ the statute] to determine whether it reflects an impermissible attempt ‘to allow a g o vernment [to] control

. . . the search for political truth.’” I

d

. at 384 (quoting Consolidated Edison Co.

v. Public Service Comm’n of N.Y

. , 447 U .S. 530, 538 (1980) (alteration in orig inal)).

Minority T V urg es us to adopt a strict scrutiny standard. W e d o not credit Minority TV’s arg ument that C i t i z e n s United v. Federal Election Comm’n
, 558 U.S. 310 (2010), overruled de c a d e s o f precedent sub silentio—especially g iven that the Court there e x pressly overruled two other cases with

no mention of League of W o men Voters or an intent to chang e the level of scrutiny for broadcasting

. Citizens United w a s not about b roadcast reg

ulation; it was about the validity of a
statute banning politic a l s peech by corporations. Had Citizens United chang ed the standard for broadcast

r e gu l ation, presumably the Supreme Court would have
recog niz ed as much two y ears later in FCC v. Fox TelevisionM I N O R I T Y T E L E V I S I O

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Stations
, 1 32 S. Ct. 2307, 2320 (2012), rather than declining
to address the broadcasters’ claim t h at precedent providing for less rig orous scrutiny of broadcast reg u lation “should be overruled because the rat i o n ale of that case has been overtaken by technolog ical chang e.” The Supreme Court has
not g one there a

nd neither shoul d w e , a bsent a complete record on the sub

j e c t and a chang e o f direction b y the Suprem e C o u r t

. This case is not a suitable one for such fundamental reconsideration of long standing precedent. 5

2. Scope of the Record

W e are p resented with an ample r ecord to support § 399b, consisting both of evidence that was b efore Cong ress in 1981 and evidence before the district court that covered the period after enactment. F ollowing th e Supreme Court’s lead, we look to “ the evidence before Cong ress and then the f urther evidence presented to the District Court.” Turner Broadcasting Sys. v

. FCC
, 520 U.S. 18 0
, 1 9 6 (1996) ( “Turner II

” ). As a matter of course, in m ultiple F irst Amendment cases, the Court h as looked bey ond the rec ord before Cong r ess at the time o f enactment. See, e.g. , League

o f W o m en Voters
, 468 U.S. at 387 & n.18, 390 & n.19
, 3 9 2 n.21, 393 n.22 (looking to testimony before Cong ress as w ell

as r eports and other evidence following the statute’s enactment), a

nd U nited States v

. Playboy Ent. Grp.
, 529 U.S.

5 W e ack n ow led g e th at th ere h as been co n sid erab le tech n o lo g ical ch an g e in b ro ad castin g , in clu d in g th e u b iq u ity o f t

h e In tern et. Ho w ev er, a th o u g h t f u l ex am in atio n of th e im p act o f t h o se ch a n g e s o n th e u s e of b ro ad cast s p e ctru m , m ark et seg m en t atio n , an d th e lik e can h ard l y o ccu r

o n a reco rd b are o f ev id en ce o f th e im p a c t o f tech n o lo g ical ch an g e. Min o rity T V h as o f

f ered n o t h in g o th er th an so u n d b ite p l atitu des, an d th e d issen t h as o f

f ered n o th in g o th er th an a series o f n ew sp ap er articles, w i th th e w eig h t o f

su ch p u b l icatio n s as ESP N P lay

b oo k an d Variety

.M I N O R I T Y T E L E V I S I O

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803, 821–22 (2000) ( faulting the g overnment f or failing to produce additional “p r o bative evidence” to supplement the “near barren leg islative record” in apply ing strict scrutiny

).

Cong r ess enacted §§ 399a and 3 99b after a two-y ear F CC notice and comment proceeding

, d ay s of hearing s, a nd a thoug htful committee report. I n deed, t h e record before Cong r ess provides a sufficient basis to uphold the s t atute

even without the supplemental evidence offered in the district
court. This case “d oes not present a close call” requiring us to elaborate on what e videntia ry burden Cong ress bears in enacting a law that implicates F irst Amendment rig hts. Nixon

v. Shrink Missouri Gov’t PAC
, 528 U.S. 377, 393 (2000); see also Sable Comm. of Cal.

, I n c. v. FCC
, 492 U.S. 115, 133 (1989) (Scalia, J

., c oncurring ) (“Neither due process nor the F irst A mendment requires le g islation to be supported b y committee reports, floor debates, or e ven consideration, but only by a vote.”).

I t is clear, however, that Cong ress is “not oblig ated, when enacting its statutes, to make a rec o r d of the ty pe that an administrative ag ency or court does to accommodate judicial review.” Turner Broadcasting Sys. v. F CC
, 512 U.S. 6 2 2
, 666 ( 1994) (“ Turner I ”)

. W e r eject Minority TV’s
sug g estions to the contrary

. The dissent’s i n s i s tence on “evidence” in the tec h n i c a l sense is misplaced. W e are not abdicat ing to a cong ressional whim or succumbing to some notion that “judg es like public radio and television,” Dissent
at 41, simply because we g ive credence to cong ressional finding s. Pure and simple, the d issent doesn’t l i k e what C o n g r e s s f

o u n d a f t e r c o n s i d e r i n g e x t e n s i v e F C C administrative proceeding s, holding its own hearings

, a nd
p r e paring a committee report. Cong r ess is a p olitical body that operates throug h hearing s, finding s, and leg islation; it isM I N O R I T Y T E L E V I S I O

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not a court of law bound by f e d e r a l rules of evidence. I g noring fundamental principles of separation o f powers, the dissent would rewrite the leg islation, ig nore the cong ression a l evidence, and substitute pop culture and its own p olicy judg ment for that of Cong ress.

I n e n a ct i n g § § 3 9 9 a a n d 3 9 9 b

, C o n gr e s s m a d e a prediction about the effects o f underwriting a nnouncements, log og rams, an d a d

v e r t i s i n g o n p u

b l i c broadcast prog ramming

. W e must a ccord deference “to [Cong ress’s] finding s as to the harm to be avoided and to the remedial measures adopted for that end, lest w e infring e o n traditional leg islative authority
to make predictive judg ments when enacting n ationwide
reg ulatory policy .” Tur n e r I I
, 5 20 U .S. at 196. Cong r essional concern and p r og nostication w as w ell in f o rmed, but the information before Cong ress was necessarily limited because adver t i s i ng had never been allowed on NCE stations. The F irst Amen d m e n t d o es not require Cong ress to wait for a feared harm to take place before it can a ct. Such a hig h bar would make little practical sense—it would tie Cong ress in k nots and strip it of its ability
to adopt forward thinking public policy

. “Sound policy making often requires leg isla t o r s to forecast future
events and to anticipate the likel y i mpact of these events ba s e d on deductions and inferences for which complete empirical support may be unavailable.” Turner I
, 512 U .S. at 665.

Apart f rom the evidence that was before Cong ress in 1981, the g overnment presented sig nificant addi t i o nal evidence, including a 2007 r eport by the Government Accountability O ffice (“GAO”) on public television; t he

r e port of the Temporary Commission on Alternat i v e F inancing for Public T elecommunications, which oversaw anM I N O R I T Y T E L E V I S I O

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ex p eriment with limi t ed advertising on public television; information about political advertising ; an ex pert report from

a Stanford U niversity professor emeritus with over 40 y ears of ex perience in study ing the economics of broadcasting a nd public television; a

n d a decla r at i o n from a vice president o f

a foundation that o perates n umerous noncommercial educational radio and television stations.

W e conclude that s ubstantial evidence before Cong ress supported t h e conclusion that the advertising prohibited b y § 3 9 9 b p osed a threat to the n oncommercial, educational
nature of NCE prog ramming and that the additional evidence bears o ut Cong ress’s predictive judg ment in enacting § 399b. Minority TV’s sca n t evidentiary showing reinforces this conclusion. See Nixon
, 528 U.S. a t 3 9 4 (noting that more

ex tensive evidence mig ht be required if the parties challeng ing the statute “had made any showing of their o wn to cast do ubt” on the evidence supporting it). Similarly

, the dissent offers only speculation not substance for its view that permitting unfettered advertising wouldn’t lead to distortion and perverse incentives. Poking h ol e s i n the cong ressional evidence is hardly a substitute for the scrutiny required o f this
court.

B. I N T E R

M E D I A T E S C R

U T I N Y A N A L Y S I S O F S E C T I O N 399b

W e now turn to a more d et a i l ed analy sis of whether § 399b is “narrowly tailored to f urthe r a substantial
g overnmental interest.” League of W o men Voters , 468 U.S.
at 3 80. Section 3 99b was enacted in 1981 ag ainst the backdrop o f d e c lining federal support for public broadcasting

. Cong r ess was acutely aware that public broadcasting needed

new sources of revenue to survive, but it was also worriedM I N O R I T Y T E L E V I S I O

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about undermining the essential n ature of public broadcast
prog r amming

. Th e F CC had just promulg ated new, liberaliz ed reg ulations that were “desig ned to further the important g overnmental interest in preserving the essentially noncommercial n ature of public broadcasting within a minimal regulatory framework by insulating public broadcasters f

rom commercial marketplace pressures a nd decisions.” 9 0 F .C.C. 2d 895, 8 96 (1982) (statement by F CC Commissioner W ashburn clarify ing the impact of the Public B roadcasting Amendments A ct on the recently issued
reg ulations) (emphasis in o rig inal). The F CC b e l i e ved the liberaliz ed advertising restrictions “satisf[ ied] constitutional objections.” Id. Cong ress ag r eed, and so do we.

1. Substantial G overnm ental Interest

F ederal reg ulation of the broadca s t s pectrum, a scarce public resource, is entitled to more def e r e ntial F irst Amendment review than r eg ulation of ot h e r ty pes of media. See Reno v

. ACLU

, 5 21 U.S. 844, 868 ( 1997) ( h i g h lig hting the “special justifications for r eg u l a t ion of the broadcast media that are not applicable to other speakers,” including the “history o f ex tensive Government reg ulation of the broadcast medium,” “the scarcity o f av a i l a b le frequencies at its inception,” a n d “its ‘invasive’ nature”) (citations omitted); Turne r I
, 512 U.S. at 637 (noting that the “justification for [ the Court’s] distinct approach to broadcast reg ulation rests

on the unique phy sical limitations o f the b roadcast medium”). This deferential r eview is not strict scrutiny lig h t, but instead requires us to benchmark the statute ag ainst the requirements of League of W

omen Voters
, including the g overnment’s substant i al interest. Section 3 99b’s advertising r e strictions speak directly to the g ov ernment’s substantial interest in maintaining the unique, free p r og ramming niche filled b yM I N O R I T Y T E L E V I S I O

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public t elevision and radio. T hat Minority TV does not contest the g overnment’s substantial interest in ensuring the diversity a

nd quality of public broadcast prog ramming is no surprise. N onetheless, it is useful t o detail the nature a nd
scope of the g overnment’s interest both as a prelude to and a basis for informing o u r narrow tailoring analy sis.

The F irst Amendment rig h ts of Minority TV and potential advertisers do not ex ist in a vacuum. The Supreme Court has
recog niz ed the public’s r ig ht “to receive suitable access [ throug h broadcast media] to social, political, esthetic, moral, and other ideas a

nd ex periences

. ” R ed Lion Broad. Co. v

. FCC
, 395 U.S. 367, 390 (1969). “B a lancing the v arious F irst Amendment interes ts involved in the broadcast media a nd determining what best serves the public’s rig ht to be informed is a task o f g reat delicacy a n d d if f i c u l t y ,” and “we must afford g reat w eig ht to the decisions of Cong ress and the

ex p erience of the [ F CC ]

. ” Columbia Broad. S ys. v

. Democratic Nat'

l Comm. , 412 U.S. 94, 102 (1973).

I n pursuit of its g oal, the g o vernme n t set aside specific channels f

or noncommercial use, provided funding throug h the Corporation for Public B roadcasting and other means, a nd created special requirements and r estrictions f o r NCE stations. See, e .g. , 47 U.S.C. §§ 303 (a)–(b), 394, 396, 3 99a, 399b ; 4 7 C

. F .R. § 7 3.503. H owever, the dissent fails to appreciate that section 3 99(b) i s a central prong of these
st r u c t u r al constraints and that they operate as a packag e to effectuate cong ressional intent. The dissent’s s e l e ctive

ex c ision of a foundational principle o f public television undermines the integ r ated leg islative p a c kag e and ig nores the F CC’s ex p erience with p u blic television. Section 399b does
not stand alone; it is an important piece of a comprehensiveM I N O R I T Y T E L E V I S I O

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scheme to promote pr o gr amming that is differentiated from the ty p ical commercial fare.

Numerous sta t utes a

nd r eports recog niz e the unique
nature of NCE prog ramming

. F or ex a mple, when the F CC first set aside televis i on channels for noncommercial use, it pointed to “the imp o r

t a n t c o n t r i b u t ions which noncommercial educational television stations can make” a n d the “hig h
q u a l ity ty

p e of prog ra m m i n g” a v a i l a b l e o n N C E stations—“pr o g r amming of a n entirely different character from that avail a b l e on most c o mmercial stations.” Third Notice of Further Proposed Rulemaking

, 16 F ed. Reg

. 3072, 3079 (1951). I n the Public B r oadcasting Act of 1967, which,
among o ther thing s, established the Corporat i o n for Public B roadca sting

, Cong ress found that “ [i] t furthers the g eneral welfare to encourag e public telecommunications services which will be responsive to the interests of peo ple both in particular localities and throug hout the United States, which will constitute an ex pression of diversity and ex cellence, a nd

w h i c h w i l l c o n s t i t u t e a s o u r c e o f a l t e r n a t i v e t e lecommunications services for all the citiz ens of t h e Nation.” 47 U.S.C. § 396(a)(5). And in pas s i n g t he Children’s Television A ct of 1990, the Senate ex plained that “public tele v i s i o n is the primary source of educational children’s prog ramming in the United States. ” 6 S. Rep. 101-66, at 7 (1989).

6 Sp eak in g b ef

ore th e Sen ate o n th is A ct, Sen ato r W irth stated t h at “ [t]h e

m a rk etp lace h as sim

p ly f ailed to p ro d u ce [ed u catio n al ch ild re n ’s
p ro g ram m i n g ] o n its o w

n , in larg e p art b ecau se th e ad v ertiser- d riv en t elev isio n i n d u stry d o es n o t f in d ch ild ren ’ s p ro g ram

m in g to b e a p articu larly lu cr a

t i v e v en tu re” an d t

h at “ ed u catio n al [ch ild ren ’ s] p ro g ram s h av e literally d i s ap p eared f ro m th e airw av es o n all b u t P B S statio n s.” 1 3 6 Co n g . Rec. 1 8 2 4 1

– 1 82 4 2 (d aily ed . J u ly 1 9, 1 9 9 0 ).M I N O R I T Y T E L E V I S I O

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The unrebutted ev i d e nce before us documents that
prog r amming on public broadcast stations is markedly different f rom that on commercial stations. That was true in 1981 when Cong ress enacted § 399b, and it is true now. As
t h e district court noted, “Cong ress did n ot write on a bl a n k slate when it enacted Section 399b; rather, after a half-century of ex perience with public b r o a d casting

, the record before Cong r ess showed that public television and radio stations
carry very different prog ramming than do comme rcial stations.” 649 F

. Supp. 2d at 1036. F or ex ample, there was testimo n y b e fore Cong ress that public radio allows “7 o r 15 minutes to ex plore an issue, rather than being confined to the 30-60- and 90-second snatches common to commerc ial stations,” p r o v i d es “the only network for the blind,” “g ives
y ou jaz z live,” and provides four hours of d a i l y n e w s of a different nature than that p rovided by c ommercial s tations. H. Hg s. at 323 (W alda W

. Roseman, S e n ior Vice President, National Public Radio (“NPR”)).

Stanford University Pr ofessor Emeritus Rog er Noll, a g overnment ex pert who has spent over for t y y ears study ing the economics of broadcasting and public tel evision, presented evidence th a t “non-commercial stations offer statistically sig nificantly more public affairs, children’s a nd f a mily p rog ramming

, a

nd statistically sig nificantly less violent prog ramming

, t h an both affiliates of commercial networks and a ll other commerci al stations.” According to the G overnment Accountability Office, public br oadcasters devote 16 percent of all prog ram hours t o educational children’s prog ramming

, 7 compared to the 3.32 hours per

wee k the averag e commercial broadcaster g ives to such

7 So m e NCE statio n s dev o t e m o re t h an 4 0 p ercen t of th eir w eek d ay p ro g ram h o u rs to ch ild ren ’ s p ro g ram m in g

.M I N O R I T Y T E L E V I S I O

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prog r amming

. Many NC E stations also broadcast instru c tional prog ramming f or adults, including GED preparation, community colleg e telecourses, and professional
g rowth p rog ramming for t e achers and administrators. I n

a ddition, some public b roadcast stations are the only sou r c e of local prog ramming that is not related to news or sports.

The primary harm § 399b soug ht to prevent was the loss of the distin c t i v e content o f public broadcast prog ramming

. Cong r ess heard from doz ens o f witnesse s w ho testified,

am ong other thing s, that “[ c] ommercializ ation will make public television indisting uishable from the n ew commercial

or pay c ulture cable services,” H

. Hg s. at 149 (L arry Sapadin, Ex ecutive Director, Association of I ndependent Video & F ilmmakers, I nc.), and that NCE-ty pe prog ramming “ is just
not possible with the commercial constraints of pro viding a commercial service,” H. H g s. at 3 2 3 ( W a lda W

. Roseman, NPR). “All consumer and public interest g ro u p representatives” who testified “were c o n c erned about what they viewed as a trend towards the commercialism of public broadcasting .” H. R. Rep. No. 97-82, at 9 (1981).

One of the major themes in the evidence b efore Cong ress

was that advertising distorts prog ramming decisions because advertisers have something to sell—be it a product, messag e , or candidate—and they want to sell it to the larg est audience possible. Representative Robert Matsui, a former member o f the Communications Subcommittee, ex plained that the “principal thrust of commercial broadcasting

. . . is controlled by its need to reach mass audiences in order to sell p roducts. W h ile this mass approach is definitely a valid p u r p o se, commercial broadcasting is unable thereby

to respond to the
my riad o f individual needs of any community . . . . I t simply does not possess the prog ramming flex ibility to tailor showsM I N O R I T Y T E L E V I S I O

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to serve the numerou s characteristics of each community

. ” H. Hg s 30–31. Similarly

, an a rticle submitted to the House by the National A s s ociation of Educational B r oadcasters

e x plained that public broadcasters “don’t aim to amuse t h e lowest common denominator o f the audience because we’re
not seeking the hig hes t r a t ing s p ossible. B ecause we don’t
carry a ds. B ecause the law w on’t let u s.” H. Hg s. 226–27 ;

see also H. Hg s. 129-30 (J ohn C. DeW itt, American F ound. for the B lind) (testify ing that “comm e r c i aliz ation of public b roadcasting

. . . r

un[ s] the dang e r that [ broadcasters] w i l l focus on the lowest common denominator of programming ” rath er than on serving “diverse audiences” like minorities,

w o m e n , and the print handicapped). One member of the House of Representatives summed up this concern: “W ill the search for d ollars compromise [public broadcasting ’s] creative g enius? W ill there b e string s attached to the money that is g iven to public broadcasting so that the most courag e ous a

nd needed prog rams are no t f u nded f or fear o f controversy

—or simply fear itself? ” 1 2 7 C o ng

. Rec. 13148 (J une 22, 1981) (Rep. W ax man).

T h e c ommercializ ation Cong ress feared was not re s t r i c t e d
to ty p ical commercial business advertising

. Rather, Cong ress

was worried about the commercializ a tion o f public broadcasting itself: the selling of airtime. See, e.g. , H. Hg s. 71 (Senator W irth describing how the “ selling of time” would transform public broadcasting by leading stati o n s to make
prog r amming decisions based on their calculations o f the advertisi n g v a l ue of shows); see also H. Hg s. 149 (the Ex ecutive Director of the Association of Independent Video & F ilmmakers, I nc., e mphasiz ing that “[ s] elling ma k e s its own demands”).M I N O R I T Y T E L E V I S I O

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Cong r ess heard testimony a bout the need to protect public broadcasting f

rom all special interests whose advertising dollars c ould affect prog r amming decisions. See H. Hg s. 112 (J ack Golodner, D irector, D epartment for Professional Employ ees, AFL

- CI O) (“[ I ]f public broadcasting is to perform its r ole

. . . , the n s u f f icient public funding must be made available so that to the furthest ex tent humanly possible, it is insulated from political, corporate, and, for that matter, labor i n f

luence.”). The record shows that Cong ress

was c oncerned with “insulat[ i n g ] public broadcasting from special interest influences—po litical, commercial, or any other kind.” 127 Cong

. Rec. 13145 (1981) (Rep. Gonz ales);

see a lso H.R. Rep. No

. 9 7 -82, at 16 (1981) ( listing as a criterion for alternative financing mechanisms the “insulation of prog ram control and content f r om the influence of special interests—be they commercial, political or relig ious”).

Evidence before the district court r einforces the
cong ression a l view that if advertising were allowed,
prog r amming w ould “follow the money ,” chang ing the nature of p ublic broadcast prog ramming

. The research cited by Noll is consistent with much of the testimony before Cong ress, a nd it bears o ut Cong ress’s pre d i c t ive judg ment that advertising would chang e the face o f public broadcasting

. Noll ex p lained that commercial b r oadcasting suffers f rom a “market failure” in that a “competitive, advertiser-supported television sy stem leads to an e mphasis on mass e n tertainment prog ra mming with insufficient attention to p r o grams that serve a small audience, even if that audience has an intense desire to watch
prog r ams that differ from standard mass entertainment
prog r ams.” A ccording to Noll, in order to attract advertising dollars, NCE stations would ha ve to chang e their
prog r amming to be more like that on commercial stations—
prog r amming that advertisers prefer b e c ause it attracts larg e audiences.M I N O R I T Y T E L E V I S I O

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The diversity and q u ality of prog r amming on public broadcast stations stems both f rom t h e r estrictions on advertising a

nd f rom the incent i v e s created by the ex isting funding structure. F u nding for NCE stations comes from f e d eral, state, and local subsidies; donations from viewe r s ;

a n d p r o g r a m u n d e r w r i t e r s i n c l u d i n g c o r p o r a t i o n s , foundations, and other entities. Noll ex plained that, “[ b] ecause the viability of p ublic television stations depends

on attrac t i n g donations, stations are motivated to offer
prog r ams tha t encourag e voluntary contributions from the communities that they

serve.”

L ance Oz ier, the Vice-President for Planning and Policy of the WGB H Educational F oundation, detailed that funding from federal and st ate g overnment sources as well a s foundations and other not-for-profit under writers would be jeopardiz e d if NCE stations were p e r mitted to air p aid advertisements. Oz ier stated that the loss o f funding would
not be restricted to those stations who chose to air advertisements: “Every public station would face the
consequences g enerally of a perceived deviati o n from the public education mission.”

I n 2007, the G AO reported that many of the public television licens e e s with whom it spoke opposed g reater underwriting f

lex ibility

. The l arg e majority that opposed
g reater underwriting flex ibility said that it “would not g enerate increased underwriting revenues, since corporations and advertisers desire prog ra m m i n g with hig h rating s and a targ e ted demog raphic,” “would upset viewers and contribute
to a decline in members h ip support,” “could threaten a licensee’s ability to receive financial su p p o r t from a state g overnment,” a

nd “would be inconsistent with the mission o f public television and could alter prog r amming decisions.”M I N O R I T Y T E L E V I S I O

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The upshot of the evidence—starting with the F CC study

, buttressed during cong ressional he aring s, and reinforced b y additional evidence be f

o re the district court—is that the
g overnment has a substantial interest in imposing advertising restrictions in order to pr e s e r v e the essence of public broadcast prog

ramming

.

2. Narrow Tailoring

W ith this substantial interest in mind, the nex t question in

our intermediat e scrutiny analy sis is whether the law is “nar rowly tailored to f

urther [ that] substantial g overnment interest.” League of W

omen Voters
, 468 U.S. at 380. Unlike strict scrutiny

, intermediate scrutiny does not require that the

means chosen by Cong re s s b e the least r estrictive. See Turner I
, 512 U.S. at 6 62; United Brotherhood of Carpenters & Joiners of

Am. Local 586 v

. NLRB
, 540 F .3d 957, 968 (9th Cir. 2 0 08). As the Supreme Court suc c i n c t l y noted in a commercial speech case, narrow tailorin g re quires “a ‘fit’ between the leg islature’s ends and the means chosen to accomplish those ends.” Bd. of Tr. of the State Univ. of New Y o rk v. Fox , 492 U.S. 469, 480 (1989) (citation omitted).

Understanding the c ontrast between this case and the b an

on editorializ ation in League of W omen Voter

s i s a useful

s t a r ting point in the narrow tailoring analy sis. See 468 U.S.
at 393. That ban w as paten t ly overinclusive b e cause it “include[ d ] w ithin its g rip a potentially infinite v a r i e t y o f speech” that was not related to the g overnment’s interests in protecting NCE s t a t i o ns from “being coerced

. . . into becoming vehicles for go v e r n ment p ropag andiz ing or the objects of g overnmental in fluence.” Id. at 393, 396. The restriction w as also patently underinclusive. Id. at 396. B ecause the stations remained “fully able to broadcastM I N O R I T Y T E L E V I S I O

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controversial views so long a s such v iews [ were] not labeled

as [ their] o wn,” the ban did not effectively “reduce the risk o f
g overnment r etaliation a n d interference.” Id. at 384–85. There w as also evidence that some supporters of the b ill were less concerned with the ri s k of g overnment control o f NCE stations than they were w ith pro t ec ting themselves from critical speech. Id. at 387 n .18 (quoting the p rovision’s chief
sponsor, who ex plained that some r epresentatives “have very stron g feeling s because they have been editorializ ed
ag ainst”). F inally

, the g overnment’s interest in ensuring that audiences would n ot presume th at broadcasters’ editorials reflected official g overnment v iews could have b een easily satisfied by a less r e strictive r eg ulation requiring NCE stations to b r oadcast a disclaimer when they editorializ ed. Id.
at 395. I n short, there was very little f it between the ban a

nd its stated purposes.

I n contrast, § 399b’s restrictions are narrowly tailored to the harms Cong r ess soug ht to prevent. H a v i n g documented the link b etween advertising and prog ramming

, Cong ress reaffir med the long -standing ban o n advertising o n NCE stations, but in a more targ eted manner. I n place o f the prior absolute ban on promotional content, which swept within its reach a wide rang e of speech that did not pose a sig nificant risk to public prog r amming

, Cong r ess enacted targ eted restrictions that leave untouched speech that does not undermine the g oal s o f t h e statute. The restrictions leave broadcasters free to a ir enhan c e d underwriting

, which both the F CC and Cong r ess determined did not pose the same risk
to prog ramming as advertisements. B roadcasters may air any promotional content for wh i c h consideration was not

r e c e i v e d

. Fi n al l y , t h e s t a tute p e r m i t s n o n -p r o f i t

a d vertisements. As to this latter categ o ry , the g overnment offered evidence that n o n

- p rofit advertisements, which a reM I N O R I T Y T E L E V I S I O

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few in number and perceived by the p ublic as consistent with the mission of public broadcasting

, d o not p ose the same threat as other forms of advertising

.

S ection 399b’s p rohibitions are specifically targ eted at t h e real threa t

— t he influence o f p aid advertising dollars. Cong r ess identified s ig nificant special interests that pump money into advertising

, setting out three subs e t s o f

a d v e r t i s e r s

— t yp i c a l f

o r

- p r o f i t b u s i n e s s e s , p o l i t i c a l candidates, and a dvocacy g roups. The term “advertisement” is d efi n e d b y reference to these three subsets, w hich taken
t o g e t h e r h a v e a s i n g l e e f f e c t : t o p r e v e n t t h e commercializ at ion of public broadcasting b y p rohibiting nearly all a d v e rtising

. Althoug h the dissent proffers unsupported distinctio ns between political o r issue advertisements and commercial adver tisements they are not g ermane to the overall threat th a t C ong ress targ eted: commercializ ation throug h advertising

.

Unlike the ban on editorializ ation, w hich was underin c lusive to the point o f ineffectiveness, § 399b effectively “insulate[ s] public broadcasting from special interest influences—politic a l

, c o m m e r c i a l

, o r a ny other k ind.” 127 Cong

. Rec. 1 3145 (1981). More t h an thirty y ears since § 399b was enacted, the continuing differences b etween public broa d c a sting and commercial broadcasting a re a testament to the statute’s succ e s s in promoting Cong ress’s
purpose. The g overnment provided ex pert evidence that the

“ p r e s e nt sy stem of financin g p u b l i c t e l e v i s i o n i s effective”—that it “improves d iversity of prog ramming ” while “avoiding problems associated with a dvertise m ents.” Minority TV’s unsupported assertion that “399b’s attempt to prevent t h e ‘buy ing ’ of influence c annot possibly be effective” because “g r oups, entities, a nd individuals” can stillM I N O R I T Y T E L E V I S I O

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“attemp t to ‘ buy ’ influence” by making donations is not persuasive. Not only is there no evidence that donations affect prog r amming ; there is a hug e difference b etween a donation and targ eted advertising

. The dissent acknowledg e s the evidence before Cong ress and the district c o u r t , but offers its own theories of how to protect public broadcasting

. Contrasting the actual evidence and the dissent’s proposals illustrates the difference b etween the strict scrutiny standard that the dissent hoped we would apply and the i n t e rmediate scrutiny standard that we a re bound to apply

. W e d o n ot d emand mathematical precision from Cong ress; rather, we demand a “ f i t ” between the ends and the chosen means. Fox
, 492 U.S. at 480. The evidence in this case easily d emonstrates a fit between section 399(b) and the substantial interest in protecting the essence of public broadcasting

. T her e f

o r e , s e c t i o n 3 9 9 ( b ) s u

rvives intermediate scrutiny o n this prong of the analy sis under League of W omen Voters

.

a. Overinclusiveness: Challenge to I ssue a nd

P olitical Advertising Restrictions

Minority T V essentially lets pass § 3 99b’s restriction on for-profit g oods and service a dvertising and f ocuses its attack

on the political and issue advertising restrictions. This attack
rests on a d istinction without a d ifference. Cong ress was try ing to prevent the commercializ ation of public broadcasting itself, not simply advertisements by commercial businesses.

Minority TV mistakenly attempts to equate cong ressional focus o n commercializ atio n with for-profit businesses; but this r eading is at odds with cong ressional intent. Cong ressM I N O R I T Y T E L E V I S I O

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determined that the “ insulati on of prog ram control a nd
content f rom t h e influence of special interests—be they commercial, political or relig ious”—was necessary

. See H.R. Rep. No. 97-82, at 16 (1981). T h e g overnment’s ev idence

r eg arding the e normous sums spent on political a dvert i s i n g confirms Cong ress’s pre d iction that, like advertising by forprofit e ntities, political advertising dollars have the power to distor t p r og ramming d ecisions. I n 2008 alone, political advertisers spent $2.2 billion. A s t h e c ampaig n season g e ts long er a nd long er, commercial television viewers a re bombarded with political an d issue advertising

. Prohibiting only g oods and services advertising and allowi n g issue a nd political advertising w ould have shifted incentives a nd left a g aping hole in § 399b’s protections.

W e recog niz e the special place political speech has in our Fi rst Amendment jurisprudence. Morse v. F rederi c k

, 551 U.S. 393, 403 (2007) (“Political speech, of course, is ‘at the core of what the F i rst Amendment is desig ned to protect.’”) ( citation omitted). B ut there is no evide n c e t h at Cong r ess was targ eting political speech, c ritical speech o r particular viewpoints as opposed to the prog ramming i nfluence ex e rted by advertising dollars. Cf. Leag u e o f W omen Voters
, 4 68 U .S. a t 387 n.18 (noting that some supporters of the ban on e ditorializ ation “appear to have been

more concerned with p reventing the possibilit y that these stations w ould criticiz e Government officials” than with the risk of undue g overnment influence).

Each form of prohibited advertising p oses a similar threat. W h ether selling financial services, a state senator, or a voter initiative, advertisers seek the larg est p ossible audience. See H. Hg s. 149 (“The purpose of advertising is simply to sell—a product or an imag e. Selling makes its own d e mands.”)M I N O R I T Y T E L E V I S I O

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(L a rry Sapadin, E x ecutive Director, Association o f I ndependent Video & F ilmmakers, I n c.). Adve rt i s ers also seek prog ramming that is consistent—or at least not contrary to —their messag es and values, or the values of their

cus t omers or constituencies. See Yoo, Christopher S., Architectural Censorship and the FCC , Reg u lation, vol. 28, issue 1 (2005), at 24 (“Anecdotal evidence sug g ests that some advertisers have discourag ed netw o r k s from offering
prog r amming that addresses c o ntroversial issues or that casts their products in an unflattering lig h t. I n addition, reliance on advertising sup p o rt leaves prog rammers vulnerable to the political biases of adver t i s ers a nd special interest g roups.”). F inally

, selling prog rams would e ssentially c onvert public broadcasting into c ommercial broadcasting

. See, e.g. , H

. Hg s. 71 (“I f we g et public broadcasting into the selli ng o f ti m e , h o w do w e avoid then g etting public broadcasting

. . . into a very larg e commitment o f their o wn to fig ure out what demog raphics they are touching or what the measurement is
g oing to be able to be of that particular population, and h ow much X prog ram sells for and how much Y prog ram sells for? ”) ( Sen. W irth). I t strains log ic to sug g est that advertisers would compete intensely to run ads f o r a state senator or a voter initiative on g uns or tax es d u ring S e s ame Street o r Mister Rog ers. Children are hardl y the appropriate targ et audience.

Minority TV arg ues th a t more was needed before Co n gress could prohibit issue and political advertising

. W e disag ree. Substantial evidence before Cong ress supported its determination that the selling o f airtime to political and issue advertisers, as with for-profit advertisers, would distort
prog r amming decisions. As the Court observed in Turner II in r e j ecting the dissent’s insistence that Cong ress was required to have more information before it could enact theM I N O R I T Y T E L E V I S I O

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cable must-carry leg islation, that level o f factfinding “ would be an improper burden for courts to impose on the L eg islative B ranch.” 520 U.S. at 213. “That amount of det ai l i s a s unreasonable in the leg islative contex t as it is constitutionally unwarranted.” Id. Cong ress’s prophy lactic a ction, based on

common sense, cong ressional u nderstanding of how political advertising works, and record evidence, did not n eed to await

an empiri c a l s t u d y to support its predictions. S e e Turner I

, 512 U.S. a t 665 ( “Sound policy making often req u i r e s leg islatures to forecast future events and to anticipate the likely impact of these events based on deductions a nd i nferences for which c o mplete empirical support may b e unavailable.”).

Cong r ess’s determination that all three kin d s o f advertising posed a sig nificant threat to public prog ramming is supported by substantial evidence, and M i n o rity TV does

n ot point to any evidence indicating that issue and political advertising are less likely to result in commercializ ation than corporate g oods and services advertising

. I ts arg ument as to overinclusiveness doesn’t pan out.

b. U n d e r i n c l u s i v e n e s s : C h a l l e n g e t o P erm itting Advertising by Non-P rof it Entities

Minority T V makes much of the f act that § 399b does not prohibit advertising by non-profit entities. I t frames this a s an arg ument that § 399b favors commercial speech—advertising by non-profits—over non-commercial speech—political a nd issue advertisements. Minority TV claims that the statute “clearly inverts the hierarchy of constitutional protections o f speech.” T h ere is, h owever, a documented reason for

ex e mpting this tiny slice of advertising from the ove rallM I N O R I T Y T E L E V I S I O

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restrictions—non-profit advertising i s a drop in the bucket
money wise a

nd this limited advertising has no prog rammatic impact.

Alt h o u g h the cases that Minority TV relies on for this

a r gu ment concern n ewspaper racks and portable sig ns, the
argu m en t itself appears to come straig ht from the law o f billboard s

. I t is true that, with respect to billboards, “an ordinance is invalid if it imposes g reater restri c t i o n s on

noncommerc i a l t

h a n on commercial billboards.” Nat’l Adver. Co. v. Orange
, 8 6 1 F.2d 246 (9th Cir. 1988). B ut public broadca sting stations are not billboards, and broadcast
reg ulations are not subject to the formulation f or bill b o a rds,
newspaper r acks, or sig ns. “Each method of communicating ideas is ‘a law unto itself’ and that law m u s t r e flect the ‘differing natures, values, a buses and dang ers’ of e ach method.” Metromedia, Inc. v. City o f S a n Diego
, 453 U.S. 490, 501 (1981) (quoting Kovacs v. Cooper
, 336 U.S. 77, 97 (1949) (J ackson, J ., concurring )).

Even if this long standing distinction w ere cast aside, Minority TV’s reliance on cases such as Ballen v. Redmond

, 466 F .3d 736 (9th Cir. 2 006), and Cincinna t i v. Discovery Network

, 507 U .S. 410 (1993 )

, i s misplaced. I n Ballen

, for

ex a mple, the sig n ordinance w as o st en s ibly intended to promote safety and c ommunity aesthetics. I n s tead, the ordinance d iscriminated on t h e b asis of c ontent and the permitted s ig ns created the same h arms as the p rohibited

ones. This was a classic mis m a t ch between the restriction and its stated purpose. Unlike the statute here, the ordinance in B allen w as n ot “a reasonable f it b etween the restriction a nd the g oal[ .] ” 4 66 F .3d at 744. Discovery Network also underscored the same absence o f “reasonable fit” because the ordinan c e w as d irected to such a “paltry ” aspect of theM I N O R I T Y T E L E V I S I O

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purported problems p o s e d by newspaper racks. 507 U.S. at 417–18.

To the e x tent t h a t Minority TV is making an underinclusiveness arg u ment—that § 3 99b is underinclusive because it does not prohibit g oods and services advertising b y non-profits—that attack also fails. See Sorrell v. IMS Health, Inc.
, 131 S. Ct. 2653, 2 668 ( 2011) (ex p laining that “[ r] ules that burden protected ex pression may n ot be sustained when the option s p rovided by the State are too narrow to advance leg itimate g overnment inter e s t s ” ) ; s e e also Mainstream Mktg. Servs., Inc. v. FTC
, 358 F .3d 1228, 1238–39 (10th Cir. 2 004) (“The underinclusiveness of a commercial speech reg ulation is relevant o nly if it renders the reg u lator y f ramework so irrational that it fails materially to advance the aims t hat it

was purportedly desig ned to further.”). T he statute in League of W omen Voters was “ patent[ ly ]

. . . underinclu s i v e [ ] ” a nd “‘provide[ d] o nly ineffective or remo t e support f or the
g overnment’s purpose,’” whereas § 399b has been effective in meeting the g overnment’s asserted in t e rest. 468 U.S. at 396 ( quoting Cent. Hudson Gas & Elec. Co r p. v. Pub. Serv. Comm’n of N.Y

. , 447 U.S. 557, 5 64 (1980)). Allowing nonprofit advertising has not thwarted § 399b’s g oals.

I n promulg ating i t s newly liberaliz ed 1981 reg ulations, the F CC noted that “[ m] any commenting part ies were concerned with the proscription” on promoting the sale o f products o r s ervices as applied to announcements made on behalf of n on-profit entities or the station itself. 86 F .C.C. 2d. at 144. The F CC addressed this concern by limiting the ban
to a nnouncements for which consideration was received. Id.
at 148–49. Cong ress went one s t e p further in narrowly tailoring the legislation, by allowing non-profit advertising for g oods and services without reg ard to whether consideration was received.M I N O R I T Y T E L E V I S I O

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Cong r es s ’s prediction that non-profit advertising would
not pose the same risk to public broadcasting as the restricted ty pes of advertising is borne out by the record. L ance Oz ier from the W GB H Educational F ounda t ion ex plained that advertising by non-profit entities “do[ es] not present the same dang er” t o p ublic television a s p rohibited forms o f advertising b ecause (1) “viewers g en erally have seen messag es from [ non-profit] e n tities as bei n g consistent with the public education mission of public television,” so advertisements by non-profit entities “ d o not threaten traditional funding sources” like viewer dona t i o ns a nd
g overnment g rants, and (2) “there is a much sm a ller set o f not-f o r

- profit advertisers than there is of for-profit advertisers.” Non-profit ad v ertising sales are so small that they d id not even r e gi ster on the breakdown o f public television revenue sources presented by the g overnment. I ndeed, there is only a sing le actual non-profit announcement in the record before u s, and it is n ot one th a t M i n ority TV
soug h t to broadcast. Non-profit a dvertising d oes not pose the

same threat a s commercial, political, or issue advertisements in larg e part b ecause the number of corporate advertisers dwarfs the number of potential non-profit advertisers. I n the end, ex empting non-profit advertising unde r s cores, rather than undermines, Cong ress’s narrow tailoring

.

c. No Suf

f icient Less Restrictive Means

Th e g oals of § 3 99b cannot “ be fully satisfied by less restrictive means that are readily available.” 468 U.S. at 395. Section 399b already is a less restrictive means of e n s u r i n g div erse, hig h quality prog r amming on public broadcast stations than either the previous promotio n al prohibition o r any attempt to directly reg ulate prog ram content rather thanM I N O R I T Y T E L E V I S I O

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advertising

. 8 The latter approach w ould not only be less effective, it would open a differe n t c an of F irst A mendment

worms.

M i n o rity TV insists that time, p lace, and man n e r restrictions could achieve the s a m e goals. W ithout any support as to correlation with Cong r essional g oals, Minority TV bli t h e l y sug g ests limiting the number of underwriting

annou n c ements or permitting advertising that d oesn’t interrupt prog ramming and is l i m ited in leng th. B ut that
arg ument runs counter t o t h e evidence. L ance Oz ier

c o n cluded that NCE stations would “be forced to chan ge [ their] prog ramming substantially

. . . even if advertisements did not interrupt prog ra m m ing or if they were limited in leng th.” Oz ier ex plained that, “should public broadcasting be perceived as being ‘ commercial,’” NCE stations would have

a harder time soliciting donations f r om viewers and mig ht lose funding from federal and state go v ernment sources, foundations, and o ther not-for-profit u n derwriters. The stations could also ex perience increased costs by losing the beneficial treatment they currently r e c eive in n eg otiating labor contracts and broadcast rig hts.

Minority TV a l s o ig nores the history of the Advertising Demonstration Prog ram, a n e x perimen t authoriz e d b y the Public B roadcasting Act of 1981 that allowed advertisements

on some public broad c a s t stations subject to the very

8 A cco rd in g to Ro g e r No ll, “ th e reg u lato ry ap p ro ach —im p ro v in g th e

co n ten t o f p ro g ram s b y w

ritin g co n ten t ru l es—is n o t as ef f ectiv e as s im

p ly

rem o v in g th e co m

m ercial in cen t iv e b y elim in atin g ad v ertisin g an d

su b sid izin g th e rig h t k in d o f p ro g ram s.” Fo r ex am p le, t h e p o o r o u tco m es

o f ef f orts to m an d ate ed u catio n al an d in f o rm atio n al ch il d r en ’ s p ro g ram m in g o n co m

m ercial s tatio n s ev id en ce th e w eak n ess o f a co n ten t reg u latio n

ap p ro ach

.M I N O R I T Y T E L E V I S I O

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restrictions Minorit y T V proffers—that the advertisements
not interrupt prog ramming and be limited in l e n g t h

. The Temporary Commission on Alternative F inancing for Public T e l e c o m m

u n i c a t i o n s ( “ t h e C o m m i ssion”), which was c h a r g e d with overseeing the ex per i ment, concluded that “the benefit that some public broadcasting stations mig ht g ain additional

revenues from the a u t h o r iz ation of limited advertising does
not balance the p o tential r isks identified in this report.” Among the p o t e ntial risks identified were those noted b y Oz ier. F o r ex ample, representatives of the five major unions involved w ith prog ram production told the Commission that they “m a y s eek ‘commercial’ rates a nd rig hts ag reements f r o m p u b l i c b r o a d c a s t s t a t i o n s t h a t a i r l i m i t e d advertisemen t s,” and copy rig ht-owners’ representatives similarly indicated that th e y mig ht seek hig her pay ments from those stations. 9 B ased on the r esults of the ex periment, the Commission recommended that Cong ress leave § 399b’s prohibitions in place. I t is rare to have th e benefit of a comparison w hen judg ing less restrictive means. W e cannot ig nore ex perience with alternatives th a t demonstrates that § 399 i s n arrowly tailored to accomplishing Cong ress’s
g oals. 1 0

9 T h e Co m

m issio n ob tain ed ag reem en ts t o f reeze l ab o r an d co p y

rig h t

co sts f o r th e co u rse o f t h e ex p erim en t w ith th e ex p ress assu ran ce th at su ch f reezes w o u ld n o t co n stitu te a p reced en t if

lim ited ad v ertisin g w ere later

au th orized

.

1 0 W e are s u rp rised b y th e dissen t’ s ef f o rt to u n d erm in e th e Co m m i ssio n ’ s reco m

m en datio n w ith selectiv e ex cerp t s f ro m th e Co m m i ssio n ’ s rep o rt. Fo r ex am ple, th e d issen t p i c k s u p o n l an g u ag e

su g g estin g a p o s sib le in crease i n rev en u es. T h e Co m m issio n , h o w ev er, sp ecif ically d isco u n ted relian ce o n d at a sh ow in g an y in creased rev en u e. T h e d issen t also h ig h lig h ts o p in io n p o lls th at “ sh o w ed an in crease i n th e

n u m b er o f su

b scrib ers w

h o r e p o r ted th at th ey w o u ld co n tin u e to

co n trib u te;” in f

act, th e actu al d ata ref

lected “ [a] sig n i fi c an t declin e inM I N O R I T Y T E L E V I S I O

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F inally

, althoug h Con g r e s s may not have considered a pure time, place a

nd manner restriction, as Minority TV claims it should h ave, it did evaluate less restrictive alternatives. The House considered an alternative to § 399b that w ould have allowed institutional advertisements that did
not interrupt reg ular p r o gr amming and did not ex ceed thirty seconds in duration. H

. Hg s. 24 ( proposed tex t of H.R. 2774). W h ile some of those who testified before Cong ress supported allowing institutional advertisements, many opposed it. See,
e.g. , H. H g s. 229 (David I ves, p reside n t o f W GB H T V in B oston) (stating that a llowing log og rams “liberaliz es our rules without compromising our princip l e s , ” but that permitting even limited institutional adverti s em ents would “blur the distinction between us and c ommercial stations”); H. Hg s. 149 (Association of I ndepe n d e nt Video a nd F i l mmakers, I nc.) (“Even tasteful, institutional advertising will g ive rise to p rog ramming tha t w i l l conform to the purposes of corporate imag e-building . . . .”).

II. F A C I A L V A G U E N E S S C H A L L E N G

E T O § 399b

Section 3 99b’s prohibition of paid messag e s intended to “promote” any service, facilit y , o r product of a for-profit entity is not unconstitutio n al l y vag ue. A statute need not have “ mathematical c e rtai nty ” to survive a vag ueness chal l e ng e; instead, it may be marked by “flex ibility a nd reasonable breadth, rather than meticulous specificity

. ”

av erag e co n trib u tio n p er s u b scrib er at ad v ert i s i n g s t a t i o n s.” Mo reo v er, th e d ata sh o w ed red u ced g iv in g f ro m l arg e co n trib u to rs. L ik ew ise, t h e d issen t ig n o res n ew co sts to p u b l ic b ro ad cast statio n s t h a t t h e Co m m issio n i d e n t i f i ed

, in clu d in g tax in creases o r co m p lete lo ss o f tax

- ex em

p t statu s th at co u ld resu lt w i t h o u t sectio n 3 9 9(b ). T h e d issen t’ s “ ev id en ce” d oes

n o t w ith stan d b asic scru tin y

.M I N O R I T Y T E L E V I S I O

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G r ayned v. City o

f Rockford

, 408 U.S. 104, 110 (197 2 ) (citation omitted). Nonetheless, the meaning of the term “promoting ” a product or service is f ully withi n “ c o m mon understanding ” and is clear in t h e v as t majority o f

c i r cumstances. Cal. Teachers Ass’n v. State Bd. of E d u c

. , 271 F

. 3d 1141, 1151 (9th Cir. 2001). To the ex tent it is not, the F CC —to remove uncertainty —provides d eclaratory rulings to broadcasters who f ear they mig ht run a foul o f § 399b. 47 C.F .R. § 1.2. This g uida n c e serves to “suffici e n t l y n a r r o w p o t e n t i a l l y v a gu e o r a r bitrary interpretations” of the statute. Vill. of Hoffma n E s t a t es v

. Flipside, Hoffman Estates

, Inc. , 455 U.S. 489, 504 (1982).

III. A S

- A P P L IE D C H A L L E N G

E T O § 3 9 9 b A N D C H A L L E N G

E S T O 47 C.F .R. § 73.621(e)

The district court correctly dismissed Mi n ority TV’s as-applied challeng es to § 399b and its chall eng es to 47 C.F .R. § 73.621(e). Section 399b was applied to Minority TV only th r o u gh F CC orders and reg ulations, including 47 C.F .R. § 7 3 .621(e). J urisdiction over challeng es to F CC orders lies ex clusively in the c ourt o f appeals; as such, federal district courts lack juris d iction over appeals of F CC orders. 28 U.S.C. § 2342(1) (“The court of appeals

. . . h a s ex clusive jurisdiction to enjoin, set aside, suspend (in whole or in part)

or determine the validity of

. . . all final orders of the F ederal Communi cations Commission.”). See a lso United S tates v

. Dunifer

, 219 F .3d 1004, 1007 ( 9th Cir. 2000) (ex plaining that district cou r ts lack jurisdiction o ver a ny challeng e to F CC
reg ulations).

A l thoug h the Supreme Court has previously reviewed a F irst A mendment challeng e to an F CC reg ulation that was initially filed in feder al district c ourt, see Greater NewM I N O R I T Y T E L E V I S I O

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Orleans Broadcasting Ass’n v. United S tates , 527 U.S. 173 ( 1 9 9 9 )

, the Court in that case d id not address—and w as n o t asked to address—whether jurisd i c t i on in the district court

was proper. Courts “ar e n o t b o und by a prior ex ercise o f jurisdiction in a case where it was not questioned and it was passed sub silentio.” United States v. L.A. Trucker Truck Lines, Inc. , 344 U.S. 33, 38 (1952).

AF F IRMED.

CAL L A HAN, Circuit J udg e, concurring and dissenting :

I concur in the majority ’ s opinio n only insofar as it upholds 47 U.S.C. § 339(b)’s prohibition aga i n s t p aid advertisements by for-profit entities.

I dissen t f

r o m the majority ’ s acceptance of § 339(b)’s prohibition of a dvertisements on issues of public importance

or interest and for political candidates. As ex plained by the Chief J udg e in his dissent, and by J udg e B ea in h i s o p i n i on for the three-judg e p anel, M inority Television Project, Inc. v

. F

. C .C.
, 676 F .3d 869, 885–89 ( 9th Cir. 2012), these restrictions implicate the F irst Amendment’s cor e concerns and are n ot justified on th i s record even u n der the inte r m ediate standard set forth in FCC v. League of W omen Voters
, 4 68 U.S. 363 ( 1984). I would hold t hat these restrictions are unconstitutional.M I N O R I T Y T E L E V I S I O

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Chief J udg e K OZ I

NSKI
, with whom J u dg e NOONAN joins, dissenting :

The U nited States stands alone i n our commitment to freed o m of speech. No other nation—not even freedom-loving countries l ike Canada, Eng land, Australia, New Z ealand and I srael—has protections of free speech and free press like those enshrined in the F ir s t A m e ndment. These aren’t dead words on paper written two centuries ag o; they live. I n many way s, the Fi rst Amendment is America. W e would be a v e r y d i fferent nation but for the constant buffeting of our public and private institut ions by a maelstrom of w o rds a

nd ideas, “uninhibited, robust, a nd wide-open.” N.Y

. Times v. Sullivan

, 376 U .S. 254, 270 (1964).

B u t the F irst Amendment isn’t self-ex ecuting ; it depends

on the vig ilance of judg es in scrutiniz ing th e m u l t itude o f
p r o h i b i t i o n s , r e s t r i c t i o n s , b u r d e n s a n d fi l t er s t h at g overnment—federal, state a n d local—constantly seeks to impose on speech an d t h e p r ess. The essence of F irst Amendm ent vig ilance is skepticism, not d eference. Governments alway s have reasons for the thing s they do and, for the most part, we a c c e p t t hose reasons as valid, even if they ’re not entir e l y p ersuasive. B ut prohibitions on speech

are d ifferent. W heth e r we eng ag e in strict scrutiny

, which applies to most forms of speech

, or intermediate scrutiny

, which my colleag ues believe applies here, w e do n ’t u p hold restrictions o n speech if the g overnment’s reasons do not, at the very least, make sense.

The majority e m braces e very justification a dvanced b y the g overnment without the least hesitation or skepticism, a nd without g iving proper weig ht to the true harms caused by theM I N O R I T Y T E L E V I S I O

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speech restrictions in question. The o pinion is certainly a fine

ex a mple of rational basis review, but if intermediate scrutiny is to h ave any bite, w e can’t just trot out a ll of the reasons the
g overnment advances in support of the reg ulation and salute.

The Supreme Court showed us how intermediate scrutiny should be d one in FCC v. League of W omen Voters
, 468 U.S. 363 (1984). There, the Court found restrictions o n s p e e ch wanti n g b ecause the g o vernment’s justifications were speculative and any problems could be remedied by less drastic means. Id. at 385–99. The majority here downplay s League of W

omen Voters as an obvious case of g overnmental overreach, but it w a s n ’ t so obvious to the four J ustices w ho
wrote three separate dissent s t a k i n g the majority to task for failing to accord the speech restrictions sufficient d eference. The majority cites the League of W omen Voters opinion, but its approach resembles far more the dissents.

That said, it’s hard to pinpoint e x actly where the majority
g oes astray

. I will note what I c onsider to be errors, but doubt I can persuade those not already on board. H o w c o u ld I ? W ith a standar d a s mushy and toothless as intermediate scrutiny

, it’s hard to be clea r l y wrong

. A standard that calls

on u s to disting uish among shades o f g ray provides sca nt protection to speech: The very indeterminacy of the standard enables—nay

, encourag es—judg es to apply their own values. Speech that judg e s like g ets protected, and speech that judg e s don’t like g ets the back of the hand. A nd judg es li k e public radio and televis ion, while pretty much nobody likes commercials. I t’s hardly a fair fig ht, which is why I believe it’s time to reconsider the applicability of inter mediate scrutiny to broadcast restrictions.M I N O R I T Y T E L E V I S I O

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The Court plucked broadcast stations out o f t h e mainstream o f F irst Amendment jurisprudence in 1 9 69, when the world of communica t i o n s looked vastly different. The only way to r e ach mass a

udiences in those day s was throug h the broadcast spectrum. And no medium of communication approached the power of radio a n d television to r eac h into people’s homes with sounds and imag es. Given the scarcity of the b roadcast spectrum and the a bsence of viable alternative means o f c ommunication, the Court may have justifiably b elieved that it wa s co n fronted with a market failure—a bottleneck in the p athway s of communi cation. I t may have served the F irst Amendment to correct that market f ailure by keeping those pathway s accessible to a multitude of views, Red Lion Broad. Co. v. FCC
, 395 U.S. 367 (1969), safe f or minors, FCC v. Pacifica Found

, 4 38 U.S. 7 2 6 (1978), and otherwise reg

ulated.

I ’m certainly not the first o ne to note that that rationale—whatever its merits at the time—no long er carries
any force. See, e.g. , FCC v

. Fox Television Stations
, 129 S. Ct. 1800, 1819–22 (2009) (Thomas, J
., c o n c u r ring )

. I t’s a fine point whether judg es o f the inferior courts are bound by S u preme Court decisions that the Court itself hasn’ t y et bothered to overrule, but whose rationale has been decimated by intervening developments. I w as once of t h e v iew that only the Supreme Court m a y p erform such operations, a nd the rest o f us must keep a p ply ing law we know to be wrong

un t i l t h e Court tells us o therwise. I n fact, I once w rote a jeremiad warning my colleag ue s o f t he perils of treating a Supreme Court ca s e a s overruled, when the Court itself hadn’t told us so. I n that c a s e, w e not only defied a six d e c ades-old Supreme Court precedent, but also doz ens o f

cases in every other reg ional circuit

. S e e U nited States v. Gaudin

, 28 F .3d 943 (9th Cir. 1994) (en banc) (Koz inski, J
.,M I N O R I T Y T E L E V I S I O

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dissenting ). And, as I predicted, the C o u rt g ranted cert. a nd

. . . unanimously a f

firmed us. United State s v

. Gaudin

, 515 U.S. 506 (1995). So I g ues s t h e lesson is, we must not g et ahead of the Supreme Court—unless we’re rig ht.

I

The statute here draws a c urious line between permissible and imper m issible speech: A dvertisements for commercial
g oods and services are prohibited, a n d so are those for political c andi d a t e s and issues. 47 U.S.C. § 399b. B ut l o go gr a m s a n d a d v ertisements for g oods sold b y non-commercial entities are perm i t t e d

. Id. To determine whether speech falls on the permitted or prohibited side of the line, the reg ulator (here the F CC) must evaluate what the speech say s; it must evalu a t e speech based only on its
content. Moreover, a s the majority recog niz es, s o me o f the prohibited speech—namely political and issue advertising

— implicates the F irst Amendment’s core concern with ensuring

an informed electorate

. W e must therefore be doubly skeptical: first, because the restriction is content

- b ased and, second, because we have traditionally tre a ted some of the prohibited speech with the g reatest solicitude.

T he majority declares itself satisfied with the evidence supporting these prohibitions and d istinctions, but the record is much s p arser and far more ambig u ous than the majority

ac k n o w l e dg e s. There is, f or starters, almost nothing in the
cong ressional record compiled at the time the leg islation was adopted that speaks to the s u pposed dang ers p osed b y political and issue adverti s i ng

. Many witnesses testified about their fear that “[ c] o mmercializ ation [ would] m ake public television indisting uishable from the n ew commercial
or pay culture cable services.” Maj. op. 21 (citing HearingsM I N O R I T Y T E L E V I S I O

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before the Subcomm. on Telecomms., Consumer Protection, and Finance of the H. Comm. on Energy and Commerce on H.R. 3238 and H. R

. 2 7 74
, 97th Cong

. 149 (1981) (L arry Sapadin, Ex ecutive Director, Association of I ndependent Video & F ilmmakers, I nc.) [ hereinafter H. Hg s.] ); see also H

. Hg s. at 323 (W alda W

. Roseman
, NPR). B ut commercializ ation, as that term is co m monly understood, deals with commerce; it say s nothing a t all about advertising for political candidates or on issues of public interest.

The majority also points to a few c o m m e n ts sug g esting that Cong ress f

eared the influence of political interests. J ack G olodner, of the AF L -CI O, for ex ample, advocated that public broad c asting be “insulated from political, corporate, and, for that matter, labor influence.” See id. at 112. Cong r essman Gonz ales simila r ly emphasiz ed the need to

“ i n s u l at e p u b l i c b roadcasting from special inter e s t influences—political, commercial, or any other k ind.” 127 Cong

. Rec. 13145 (1981). B ut such g e neral concerns about insulating public television from a variety of influences
say nothing about advertising . No one ex plained, much less
pr o v i d e d evidence, how a llowing stations to accept p aid adverti s i n g from politicians would make them subject to influence by those politicians. No one sai d a word about influence by org aniz ations that sponsor issu e a d s

. Stray

comm ents, unsupported by facts, may be enoug h to support leg isla t i o n under the all-forg iving rational basis test, but intermediate scrutiny

surely calls for more.

There are other lacunae in the leg islative record. No o ne

ex p lains why political a n d issue ads are dang erous, if advertising for non-commer c i al entities (including product ads) isn’t. I f l e gislators feared influence, why d idn’t they

w o r r y a b o u t s t a t i o n s f a l l i n g u n d e r t h e s w ay o fM I N O R I T Y T E L E V I S I O

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non-commercial entities? T he list o f non-commercial entities is vast. Many are poorly funded and non-controversial (such

as some museums and th e a ter g roups), but others are quite wealthy and influential, including ad v o c a c y g roups, churches, foundations, think tanks and fraternal org aniz ations. The leg islation forbids non-profit o rg aniz ations from advertising abo u t m a tters of public concern or candidates f or public office. B ut nothing prevents the m from advertising themselves and the services they offer, a nd th er eby presumably influencing the prog ramming of public broadcast stations. I f there are reasons why influence by the W e stboro B aptist Church, He r i t ag e F oundation, Planned Parenthood, N a tional Rifle Association, Middle East Research I nstitute, F amily Resea r c h Council, Media Matters for America a nd AARP p oses less of a threat than influence by entities commenting on issues of public importance or c andidates for public office, they

are nowhere to be found in the leg islative record.

Even if we look at the evidence deve l o p e d after the leg islation was passed—some of it decades later—there isn’t

m uch to support the ban on political and issue a d s

. T h e majority cites a mag az ine a rt i c l e stating that in 2 008, $2.2 billion w as spent o n p olitical advertising

. Maj. op. 29. So what? W here’s the evidence that public broadcasters would suffer adverse consequences if they were allowed to r un such ads? W e can’t assume that political campaig n ads w ill have the same adverse effects attributed to commercial ads (more

on this later). Political ads are inherently more transitory a nd episodic—centering on a part i c ular c a mpaig n season, ballot issue or candidate—so it’s far from clear that the y would present the same capture probl e m attributed to ads for commercial p r oducts, whose producers are in the market for the long haul. Nobody bothers to ex p lain the connection, a ndM I N O R I T Y T E L E V I S I O

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y e t t h e majority sees no p roblem. This is hardly rationa l basis review, much less intermediate scrutiny

.

And the new evidence say s nothing a t all about issue a ds. Neither of the ex pert affidavits (such as they are) even mentions them. There is n o mag a z ine article sug g esting there

are billions of d o l l a r s in issue ads g earing up to invade the public airwaves. No one sug g ests that sponsors of issue ads

are waiting voraciously in the wing s, y earning to p ressure public broadcast stations into chang ing their prog ramming

. Not a word. Nor is there a hint of a sug g estion that issue ads

are out of keeping with the high

- b ro w character o f public television. A nd, of course there c an’t be, because issue ads are about ideas. W here’s the beef?

I ssue a ds can be quite important from a F irst A mendment perspective. Aside f

rom g enerating re venue, which public televison a

nd radio stations can use t o produce more a nd better prog ramming

, issue ads can h elp e d u c a te the public about some of the most sig nificant questio n s o f the day : whether to take military action ag ainst forei gn n a tions; whether private individuals should h ave the rig ht to carry concealed weapons; whether minors are enti t l e d to underg o certain medical procedures without t h eir parents’ consent; whether we should have capital punishment, and for what crimes; whether undocumented aliens should be g iven a p ath
to citiz enship; how the tax burden should be allocated; whethe r s a m e-sex c ouples should be allowed to marry ; whether the g o vernment should be reading our e-mails o r listening to o ur p h o n e c a lls

. . . . The list is endless. How

ex a c tly would public broadcasting as w e know it b e harmed by allowing a limited number o f paid issue ads that don’t interrupt prog ramming ? My colleag ues g ive the issue ban a
pass, based entirely on the momentum supposedly created b yM I N O R I T Y T E L E V I S I O

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the ban o n commercial a dvertising

. This isn’t intermediate scrutiny ; it’s z e ro scrutiny

.

W h ich bring s us to the on e debatable issue—the ban on advertisements for commercial products and services, which

was at the center of c o ng ressional concern when the 1981 A ct

was p a s sed. There was, indeed, much hand-wring ing about the d a ng e rs of commercializ a tion, most o f which the majority references in its o pinion. B ut there’s n othing that one mig ht call evidence

. The leg islation was desig ned to deal with the problem of drastically

diminished federal funding for public broadcast stations, an d the n eed f or those stations to raise
money from other sources. Cong ress considered several fund-raising possibilities, among them various f lavors o f commercial advertising

, including log og rams, institutional advertisements (promoting comp anies rather than specific
p r o d ucts) and commercial advertising

. I t’s fair to say t h at none of the witnesses thoug h t commercial advertising was a g ood idea, and most thoug ht it would sig ni fi ca n t ly harm public broadcasting

.

Their concerns can be divided into roug hly 4 categ ories: (1) that adding commercial advertising would force chang e s in prog ram format and cause public broadcasting to lose its distincti v e character; ( 2) that broadcasters’ ability to raise
money commercially would cause subsc r i b e rs and other non-commercial sources of f unding to withdraw support; (3) that the need to raise revenue throug h commercial advertising would necessitate c hang e s in prog ramming content, so as to attract larg er a

udiences, leaving no airtime to serve audiences with less popular tastes; and (4) that there w ould be an increase in various costs, rang ing from increased labor costs
to the p ay

ment of additional r oy altie s f o r copy rig h ted materials to loss of various statutory benefits. I n theM I N O R I T Y T E L E V I S I O

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ag g r eg ate, the witnesses fretted, a llowing commerci al advertising would dramatically chang e the character of public broadca s t ing

, d efeating its mission of serving audiences not served by commercial stations.

These are c ertai n l y weig hty c oncerns, but what’s remarkable about the testimony presented to Cong ress is that they are nothing but concerns. The leg islative record contains

no documentation or evidence; t h ere are n o studies, no survey s, n o academic analy ses—nothing even as meaty a s the rather a nemic ex p ert reports introduced b y the g overnment in

our c ase. Sure, a l ot of people worried that commercial advertising w o u ld wreck public broadcasting

, but people
worry about a lot of thing s that never come to pass. See, e.g. , Peter Gwy

nne, The C o o l ing W

orld

, Newsweek, April 28, 1975, at 64. W here’s the proof, or even the rig orous analy sis, showing that the matters worried a bout w ere likely to occur? I t’s certainly

not in the leg islative record.

I k n o w it’s difficult to prove with certainty what the future will bring

. See, e.g. , Tu r n e r Broad. Sys. v. FCC ( Turner I

), 512 U.S. 622, 665 (1994). Nevertheless, if we’re c o n d u c ting some level of heig htened scrutiny

, not merely rational basis revie w , w e should insist on something

more than a bunch of talking heads bloviatin g ab out their
ang st. W e should ex pect, f o r ex a mple, a study of how public broadcast stations actually operate, how they differ in the i r g overnance and structure from c o mmercial stations a nd whether those differences hav e a ny bearing on how they a re likely to respond if they were allowed to raise money throug h commercial advertising

. Or, witnesses mig ht have presented historical ex amples shedding lig ht on the likelihood of future behavior, or the ex perien c e o f broadcast stations in other countries. B ut there’s n othing like that; we’re left to take onM I N O R I T Y T E L E V I S I O

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f aith that the witnesses’ fears a r e justified. Such faith isn’t consistent with the heig htened scr u t i ny courts are supposed to g ive leg islation that abridg es the freedom of speech.

I n fact, there was a g reat deal that Cong ress could h a ve

c o n s i d e red before resorting t o s u c h s t r i c t s p e e c h restrictions—thing s we may not ig nore in judg ing the leg isl at ion under heig h tened scrutiny

. W e must consider whether the speculation about the dang ers of co mmercial advertising makes sense in lig h t of all the known ci r c u m s tances, just a s the Court did in League of W omen Voters
, 468 U .S. at 3 8 5–99. The concerns ex pr e s s e d by the various witnesses about the d ang ers of commercial advertising boiled down t o t h e fear that it would chang e public b r oadcasting into a more commercial enterprise, which would d isserve the seg ment of the public n o t b eing adequately

served by

commercial broadcasting

.

Does this make sense? Commercial broadcasters operate the w ay they d o precis e l y b ecause they ’re commercial entities, whose purpose is to mak e profits f or their shareholders. Manag ers of comme r c i a l b r o a d c ast stations a nd networks thus g e nerally measure the i r s uccess based on the broad p opularity of their shows and the revenue they g enerate

as a result o f c ommercia l s and subscriptions. We c all this capitalism, and we’re p e r fe ctly content to have the laws o f supply and demand control the behavior of comme r c i al entities.

B u t we don’t observe non-commercial entities operating by the same r u les: Museums, charities, churches, universities, hospitals, theater companies, musical ensembles and a larg e v ariety of other org aniz ations operate on a non-profit basis, ev e n a s similar institutions (e.g

., hospitals,M I N O R I T Y T E L E V I S I O

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m useums, universities, theaters) operate side-by -side wit h them on a commercial basis. T he lure of profit doesn’t cause charitable institutions to abandon their missions and reinvent themselves as commercial entities: The Red Cross doesn’t g o into the business of sel ling blood o r charg ing for rescue missions because there’s a quick buck in it; the Met d o esn’t
swap prog rams with the Grand Ole Opry because it thinks it

can make more money play ing count r y music; and food banks don’t start charg ing p r ices that match those of the supermarket across the street.

W e understand perf

ec t l y well why this is so. Charitable and civic org aniz ations have charters and other org aniza t i o nal constraints that tie them to their mission; they have a variety of g overnmental reg ulations and in c e ntives that keep them from stray ing into the commercial arena; they have manag ers and staff who are dedicated to th e o r ganiz ation’s core purpose; and they have boards of dir e c t ors who supervise them to ensure they stick to it. J u st as important is what they don’t h ave: shareholders who demand a return on their investments. Charitable a n d civic o rg aniz ations intrinsically operate b y different rules than c o m m ercial entities, and it would never occur to us to pass laws prohibiting th e L os Ang eles County Museum of Art from selling automobiles a nd dishwashers, even thoug h the sale o f such items mig ht w ell be profitable a

nd allow the museum to acqu i r e more a nd better art.

I t thus seems w ho l l y irrational to make undocumented claims about the likely behavior of public broadcast stations,

were they allowed to air advertisements, without first considering the way s in w hich they differ from comm e rcial entities. And the differences are hug e. T o beg in with, public broadcasters must, by la w , o p erate a s non-profit entities.M I N O R I T Y T E L E V I S I O

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47 C.F

. R. § 73.621. T h e y m u s t be owned by “a public
ag ency o r no n p r ofit private foundation, corporation, o r association,” or by a municipality

. 47 U.S.C. § 397(6). Any station that isn’t owned o r o perated by a state, p olit i c al subdivision o f a state or a public a ge n cy must have a community advisory board. 47 U.S

. C

. § 396(k)(8)(A). I n fact, universities operate most public radio st a t ions, while non-profit community org aniz ations and sta te g overnment ag encies operate most public television stations. See Corporation for Public B ro a dcasting

, W ho Operates the Stations?
, http://www.cpb.org /aboutpb/faq/operates.html.

F ederal funding for p u blic broadcasting stations is also conditio ned on their maintaining prog ramming that is consist e n t w i t h the g oals o f the statute. F ederal funds a re distributed by the Corporation f or Public B roadcasting

, which
may make g rants “for production of public television or radio
prog r ams by independent p roducers and production entities and public telecommunications entities, producers of n ational children’s educational p r og ramming

, and producers o f
prog r ams addressing the n eeds and int e r e s t s of minorities,

a n d f o r a c quisition of such prog rams by publ i c telecommunications entities.” 47 U.S.C. § 396(k)(3)(B ) (i).

F inally

, licenses for p ublic b roadc ast stations aren’t handed out o n a first-come, f irst-served basis. I n deciding whether to g rant an application for a license, the F CC favors: (1) “local applicants

. . . w ho have been local continuously for

no fewer than two y ears”; (2) applicants with “no attributable interest s

. . . . in any other broadcast station”; (3) public o r pri v a t e e ntities “with authority over a minimum of 50 accredited full-time elementary a n d /or secondary schools within a sing le state”; (4) accredited public or private institutions of hig her learning “ w i t h a minimum of f ive fullM I N O R I T Y T E L E V I S I O

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time campuses within a sing le state”; a nd (5) org aniz ations that wi l l “reg

ularly provide prog ramming f or a nd in coordination with [ statewide educational] entit[ ies] ” for use in schools’ curricula. 47 C.F .R. § 73.7003. F urther, to receive a license, the potential station owner must show that the proposed station w ill “be used primarily to serve the educational needs of the community ; for the a dvancement o f educational prog r ams; and to furnish a nonprof i t a nd noncommercial television broadcast service.” 4 7 C

. F .R. § 73.621.

None of those who presented “evidence”—better characteriz ed as Chic k en L ittleisms—about the calamitous effects of a llowing commercial (and political and issue) advertising on public broadcasting took the slig htest account of these structural constraints. They all predicted that the lure of advertising dollars would turn p ublic broadcasters into commercial broadcasters. B u t is it rational to beli e v e that public broadcast stations o perated by municipalities, universities and non-profit foundations w o uld risk losing f e d eral funding (and perhaps their F CC licenses) b y abandoning their traditional view e r ship in o r der to compete with commercial stations for advertising dollars? This strikes

me as about as likely a s t he Smithsonian turning itself into B usch Gardens because it decides that roller coaster rides a re more popular than mastodon skeletons.

Still and all, had Cong r ess been presented with evidence that public b r o adcast stations could b e diverted from their mission by the l u r e of lucre, d espite the multitude o f structural obstacle s—had a n y one even mentioned this a s a consideration—I mig h t feel con strained to d efer to the
cong ressional judg ment. B ut no one paid any attention to the obvious differences between no n -p rofit and commercialM I N O R I T Y T E L E V I S I O

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entities, and how they respond to market i n c e n tives—even thoug h there is a wel l

- developed branch of economics that deals with precisely this subject. See, e.g. , Bu r t o n A

. W e isbrod, The Nonprofit E conomy ( 1 988); Susan RoseAckerman, Altruism, Nonprofits, and Economic Theory

, 34 J

. Econ. L it. 701 (1996); J o seph P. Newhouse, Toward a Theory of Nonprofit Institutions: An Economic M odel of a H

o spital

, 60 Am. Econ. Rev. 64 (1970).

W h at ’s more, we know f or a f act that some of t h e witnesses w ho testified before Cong r ess in 1981 were wrong

. Three of the w itnesses, each of whom w as worried sick about the potentially c a t a s trophic e f fects of commercializ ation on pub l i c broadcast stations, also made dire predictions a bout the pernicious use of log og rams. Oy vey ! Cong ress nevertheless adopted that provision, and log og ra m s h ave been in use in public broadcasting f

or over a quarter of a ce n tury

. And, know what? The Cassandras w ere wrong ; public b r o a d c a s ting as we know and love it has survived just fine—perha

p s a tad better, as u nderwriting

, including log og rams, g enerates much-needed revenue for publ i c b r o a d c a s t i n g. See NPR, Public Radio Finance s , h t t p : / / w w w

. n p r

. o r g / a b o u t

- n p r / 1 7 8 6 6 0 7 4 2 / p u b l i c

- r a d i o

finances.

Cong r ess knew that predictions about how commercial advertising would a ffect pu b lic broadcast stations were sp e culative. I t therefore soug ht to develop empirical evidence b y a u thoriz ing an ex periment that would allow public broadcasters to air c ommercial a dvertisi n g a nd

ex p anded underwriting credi t s

. A t e m p o r a ry commission was established to study the project a nd report back to Cong ress. The majority a lludes to this study in its opinion, claiming thatM I N O R I T Y T E L E V I S I O

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it supports its position, Maj. op. 35–3 6
, but I read the study
very differently

.

W h ile written in c autious and somewhat tentative terms, the report contained a n u m b e r of finding s and conclusions
t h a t severely undermine the doomsday predictions made by witnesses before Cong ress a n d a c c epted as Gospel T r uth b y the majority today

. Specifically

, the Commission f o u n d a s follows:

C “L imited advertising a nd ex p anded underwriting credits bo t h g enerated revenues in ex cess o f reported ex penses.” Such revenues “equaled about 8.1 percent of t h e stations’ total net income.”

C “I n several c a ses, advertising revenues permitted stations to acquire specific prog rams tha t t hey

o t h e r w i s e c o u l d n o t h a v e a f f o r d e d t o purchase.

. . . The d emonstration prog ram did

. . . sug g est that ( at least w here adve rtising o r

ex p anded underwriting revenue is only o ne source among many

) no movement toward prog ramming chang es resulted.”

C “ [W ] hile most subscribers a nd reg ular view e rs reporte d i nitially that they w ould watch less public television if advertisements were present, the second wave o f t h e survey showed no differences in the amo u n t of time these g roups reported watching .”

C “Althoug h a first wave response sug g ested that 20
to 40 percent of p ubli c television subscribersM I N O R I T Y T E L E V I S I O

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mig ht r educe their contributions, the second wave of the opinion p oll showed no significant differences in the overall a m o unt of g iving reported. Ad d i t ionally

, the poll showed an increase in the number of subscribers w ho reported that they would continue to contribute to public television.”

C “ A n a l y s i s o f s u b s c r i p t i o n r e v e n u e s a t participating stations showed

. . . [ a] n increase in total number o f subscribers and contributors at all stations c ompared with t he previous y ear; [ n ] o

s i g nificant differences in total number o f subscribers or total contributions compared to the control g roup [ stat i ons that did not carry advertising ] ; [ a] sig nific a n t d ecline in averag e contribution per subscriber at advertising stations compared to the contro l g roup [which] sug g ests that carriag e of limited a dverti s ing may have affected g iving b y larg e contributors. The decline, however, also could reflect an in f l u x of new subscribers contributing smaller amounts to the stations involved.”

I t i s true, as the majority notes, that the Temporary Commission recommended maintaining the advertising ban, despite these p osi tive finding s. I n stead of raising revenue throug h ad

v e r t i s i n g , t h e C o m m i s s i o n recommended enhanced federal funding for public broadcasting —at least the majority did. F or this, they were taken to task by the Minority Report, authored by th e N a t ional Telecommunications a nd I nformation Administration

, a n e x ecutive ag ency within the Department of Commerce. The minority decried the fact that “[ t] he majority report

. . . d oes not fully and fairly reflect theM I N O R I T Y T E L E V I S I O

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overwhelming ly p o s i t i v e r e s u l t s o f t h e advertising demonstration ex periment itsel f

. . . . The majority

, in short,

seems to have rejected the Cong ressional directive that w e

come up with some new ly rics a nd appears content i n s t e a d simply to sing what b y now is a very familiar song .” I t’s a song that echoes loud and clear in today ’s majority o p i n i on, three d ecades later. Pointing out that “the public’s money is the easiest of all money to spend—because it doesn’t seem to belong to any one,” the minority chastised the maj o r i t y for “continuatio n of the ‘ carg o cult’ a pproach all have seen before.” Ditto.

Here is how the Minority Report summariz ed the results of the d emonstration pro gr a m : “The evidence produced b y the advertising demonstration prog ram is almost completely positive and a ffirmative. I n no instance d i d t h e finding s indicate any sig nificant adverse consequences with respect to these matters.” The demonstration pr o gram “confirmed the view that people watch and support public television because they like and enjoy the p rog ramming

, n o t j u s t because it is ‘commercial free.’” The Commission’s polling data, for

ex a mple, revealed that “no sig nificant audiences were in fact alienated,” and that stations were able to g enerate sig nificant

revenues. Althoug h the minority conceded t h at t here were risks to allowing public broadcasters to air p aid advertisemen t s , because of the sig nificance of the potential
g ains, it concluded that “the sounder course fo r the Temporary Commission would have been to place max imum reliance o n informed licensee discreti o n , and minimum weig ht on the utility

of W ashing ton-imposed constraints.”

The sig nificance of the d emons t r ation prog ram c an’t be overstated: I t is the only evidence i n t he record about the real-life consequences of a llowi n g p ublic broadcast stationsM I N O R I T Y T E L E V I S I O

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to run commercial advertisements. And th e e x perience is overwhelming ly positive. The demonstration prog ram points
to y et another g ap in the majority ’s r e a soning —the failure to appreciate o r accord any wei ght to the serious adverse free speech consequences of the ad vertising ban. The record
sug g ests three:

F irst, as the demonstration p r o g ram illustrates, stations that receive paid advertising revenue can acquire or produce
prog r ams that they c ould not otherwise afford. Thus, the loss of advertising revenue can’t be dismissed as simply a loss o f
money ; it is, in fact, a l o ss of speech. W e know f or a fact (from the demonstrati o n prog ram) that there are stations wishing to run content that is consistent with their educational and civic mission but can’t a fford t o d o so. Advertising

revenue would allow public bro a d cast stations to acquire

c o n tent that will serve their audiences. Additional reve n u e would also enable stations to produce local content, which is

one of the identified g oals of public broadcasting

, rather than rely ing on content produced nationally or abroad.

Second, an infusion of additional non-g overnmental

revenue w ould help publ i c broadcast stations g ain independence from the federal g overnment. The record before Cong ress, and the r e co r d in our case, makes it clear bey ond dispute that public broadcast stations a re desperately dependent on federal subsidies. Can broadcasters that a re so dependent on one source of revenue be truly free to speak in
way s that a

re cri t i cal of that source? W ould public broadcast e r s f

eel f ree to run a prog ram ex posing corruption by

, say , the chairman of the relevant a p propriations committee? My g uess is that any station wishing to produce

s u c h a prog ram would be dissuaded from d oing so. W a shing ton is a small town with a long memory , and no o neM I N O R I T Y T E L E V I S I O

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wants to g et into a grudg e match with the g oose that lay s g olden eg g s. The only true independence, the only truly free speech, comes from having a multitude of funding sources, so that none is so crucial that it can’t be dispensed w ith. Deriving a portion o f revenue f rom commercial advertising

, along with other sources, can help secure that independence.

Third, advertisements are speech. Viewers oft en see commercials as no more than annoy ing interruptions, but the Supreme Court has recog niz e d that adve r t i s ements often
carry important, sometimes vital, information. S ee, e.g. , Bates v. State Bar of A rizona
, 433 U.S. 350 (1 9 7 7 ) ( l awy er advertising ); Virginia State Bd. o f Pharmacy. v. Virginia C i tizens Consumer Council

, 425 U.S. 748 (197 6 ) (prescription drug p r i ces); Rubin v. Coors Brewing Co.
, 514 U.S. 476 (1995) (beer labels). Advertisements can be for
annoy ing

, useless or decadent produc t s, but they can also

e n c o urag e people to g et breast e x ams, http:// g o o

. g l / M M 6 s V 9 ; join the peace corps, h ttp://g oo.g l/bfB miy ; g et a smoke alarm, h t t p : / / g o o

. g l / w C h m N 0 ; p r e v e n t f o r e s t f i r e s , http://g oo.g l/HrCx QG; vote, http://g oo.g l/do9TCc, e tc., etc. Ex cluding advertising from p ublic broadcasting deprives viewers of the opportuni t y to obtain such important information.

The statute’s ban on issue a dvertising (fo r which, remember, no one g ives a ny just i f i c a t i o n at all, see p. 46
supra ) is p articularly troubling

, as it deprives public broadcast aud i e nces of precisely the ty pe of information

we ex pect an informed public t o h ave: how to vote on i s s u e s o f p u b l i c i m p o r t a n c e , h t t p : / / g o o

. g l / 6 C R k 3 J
, http://g oo.g l/XL rL 9A, http://g oo.g l/TL 6B Q U; the state o f public health, http://g oo

. g l /PXI 7am; and the performance and f unding of our public sc h ools, http://g oo.g l/1B RQJ u.M I N O R I T Y T E L E V I S I O

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Campaig n ads can make or brea k presidential elections,

s e e , e

. g

. , h t t p : / / g o o

. g l / 6 o G r f y , h t t p : / / g o o

. g l / f

n F b k h ; http://g oo.g l/v0J u

. Can we say that there i s r e a l ly a substantial—or even a ration a l—justification for precluding public broadcast audiences from being educated on issues o f public importance? I s it consistent w ith the principles of an informed electorate to deprive those who watch public television and listen to public radio o f an important source o f information?

I understand the c oncern ab o u t turning public broadcasting into something that is quite different from what it is today

. B ut why a ren’t the structural constraints, discussed above, sufficient to prevent this? And, if w e fear they ’re not, there a

re many intermedi a t e restraints, far short of a complete p rohibition. Th e T em porary Commission
sug g ested limiting the d uration a n d p lacement o f advertisements, and ensuring diversity of funding (perhaps b y placing a limit on the percentag e of revenue any station could derive from a

ny sing le source). Surely

, a n y thing is better from a free speech perspective than an outrig h t and total ban,
y et Cong ress seems to have g iven this possib i l i t y no consideration. Nor does the majority

.

I add o nly a f

ew words about the two ex pert d eclarations presented by

the defendant in the district court; they deserve

no more. Assuming that it’ s possible to supplement the l e gi s l at i v e re c o r d d e cades after the l e gi s l a t i o n i s passed—wh i c h t o my mind is still an open question, see Turner I
, 512 U.S. at 6 71–74 (Stevens, J

. , concurring )—these

ex p erts add nothing to the d ebate. T h e Oz ier decl a ra t i on parrots the w o rries e x pressed by the witnesses before Cong r ess. He predicts th a t a lternative sources of funding would dry up, that stations w ould y ield to p ressure fromM I N O R I T Y T E L E V I S I O

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advertisers to change their p rog r amming

, that foundations would withdraw their support and that various concessions

now enjoy ed by public television would be j eopardiz ed. Oz ier provides no new f

acts, just the same lame p redictions previously made b y others—and larg ely refuted by the

ex p eriment condu c t e d by the Temporary Commission following the passag e of the 1981 leg islation.

The N oll a ffidavit does add some new matter, m o s t l y irrelevant. Fo r ex ample, Noll comments adversely on the “advertising of nutritional l y u ndesirable food and

. . . the inclusion of violent content” i n commercial stations, a nd reports that “[ r] esearch has shown that violent prog ram content causes antisocial behavior among children and food advertising to children promotes an unhealthy diet that causes obesity .” W hat this has to do with the matter under consideration is unclear; it seems at times like Professor Noll prepared his declaration for another client and then a d a p ted it to this case.

I n the p arts of the declaration that d o bear on our c ase, he pretty much e mbraces the carg o c ult a ttitude alluded to by the Minority Report of the Temporary Commission, callin g for “replac[ ing ] a dvertising with g overnment su b s idies as the main source of revenues.” F or this y ou need a Ph.D.?

Noll also concludes, without much support or a nal y sis, that public broadcast stations would have to chang e the nature of their pro gr a m m i ng to g e n erate sig nificant revenue. This conclusion is flatly contradicted by the ex periment conducted by the T emporary Commis s i on, which found that stations could g a i n s u

b s t a n t i a l revenue without chang ing their content. Se e p

. 5 4–55 supra

. Noll doesn’t mention the Temporary Commission’s Report, preferring to rely on his own intuitionM I N O R I T Y T E L E V I S I O

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rather than inconvenient r eal-world e vidence. Nor d oes Noll discuss, or even acknowledg e, the structural constr aints that would likely preven t public broadcast stations from reinventing themselves as c o mmercial stations. I mig ht not g o so far as to say the N oll r eport is irrational, but it c ertainly d o e s n ’t carry the kind of h eft—in lig ht o f all the other available evidence—that the Supreme C o u r t’s analy sis in League of W

omen Voters demands.

I n sum, t he evidence presented by the g overnment in support of thes e s peech restrictions simply doesn’t p ass muster under any kind of serious scrutiny —th e k i n d o f scrutiny we are required to apply when dealing with restricti o ns on speech. Even if intermediate scrutiny applies—and I doubt that it does, see pp. 61–64 infra —there is simply n ot enoug h there to satisfy a skeptical mind that the reasons advanced are rational, let alone substantial.

II

B e cause “[ t] he tex t of the F irst Amendment makes no distinctions a mong print, broadcast, and cable media,” Denver Area Educ. Telecomms. Consorti u m, Inc. v

. F CC
, 518 U.S. 727
, 812 (1996) (Thomas, J
., concurring in the judg ment in part), Red Lion and Pacifica represent a jarring d e p a r t u r e f

r o m o u r t r a d i t i o n a l F i r s t A m e n d m e n t jurispr u d e n c e. As J ustice T homas ex plained in h is lucid

concurrence in Fox Television

, “ Red Lion and Pacifica were unconvincing when they w ere issued, a nd the p a ssag e of time has only increased d oubt reg a rding their continued validity

. ” 129 S. Ct. at 1820. J ustic e Thomas’s words echo the v iews of Chief J udg e Emeritus Harry Edwards i n Action for C h ildren’s Television v

. FCC
, 58 F .3d 654, 673 ( D.C. C i r. 1995) (en banc) (Edwards, J

. , d i s s e nting ): “There is noM I N O R I T Y T E L E V I S I O

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justification for this apparent dichotomy in F irst A mendment jurisprudence. W h a tever the merits of P acifica when it was issued[ ,] . . . it makes no sense now.”

Today

, Red Lion looks even more quaintly a rchaic than at the time J udg e Edwards a n d J ustice Thomas made their observations. To start, the broadcast spectrum has v a stly

ex p anded, due in part to advances in technolog y , i n c l uding the “switch from analog to dig ital tr ansmission, which

. . . allow[ s] the F CC to ‘stack b roadcast channels r i g h t b eside

one another along the spectrum.’” Fox Television

, 129 S. Ct.
at 1 821 (Thomas, J
., concurring) (quoting Consumer Elecs. Ass’n v

. F CC
, 3 4 7 F .3d 2 91, 294 (D.C. Cir. 2003)). A nd “traditional broadcast telev i s i on and radio are n o long er the ‘uniquely pervasive’ media forms they once were. F or most
consumers, traditional broadcast media prog ramming is n ow bundled with cable o r satellite services.” Id. at 1822. This trend has continued and accelerated, w ith the delivery o f much content by way of cellular n etwork s a nd the internet. Se e, e.g. , J im E dwards, People Now Spend More Time W atching Their Phones than W atching TV

, B usiness I nsider (Aug

. 15, 2012 ), http://g o o.g l/jtrVNk; AJ Marechal, CW Offers ‘Husbands,’ More W eb Fare from D i

g ital Studio

, Variety .com (Mar. 27, 2013), http://g oo.g l/Cww32h; Mau r a McGowan, Original Series Help Netflix Turn a T i d y Profit

, Adwe ek ( Apr. 23, 2013), h ttp://g oo.g l/9oy 0g b; Procon.org and Pivot.tv Join Forces on C ritical Thinking Campaign
, Pr o c o n.org (Sept. 13, 2 0 13), http://g oo.g l/ibGN1t; J on Robinson, New ‘Madden’ Includes NFL S u n d a y T i c k e t , E S PN Play book (May 17, 2013), http://g oo.g l/g KJ RVZ ; A lex Stedman, Disney Invites Kids To B ring iPads to Theaters for ‘The Little Mermaid’ Re-Release

, Variety .com (Sept. 1 1
, 2013), http://g oo.g l/YjEfUw; E sther Z uckerman, Netflix Has Done It Again: ‘Orange Is the New Black’ Has ‘Astounded’M I N O R I T Y T E L E V I S I O

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t h e C r i t i c s , T h e At l a n t i c W i r e ( J u l y 2
, 2 0 1 3 )

, http://g oo.g l/mML 64G.

F or reasons ex plained at leng th above, I don’t think the standard of review matters very much to the outcome in this
case; the restrictions on a d v e rtising b y public broadcast stations fail any standard o f r eview more rig o rous than a straig ht-face test. B ut under a n intermediate sta n dard o f review, t h e r e s ult is hig hly unpredictable, as judg es o f i ntellig ence and g ood f aith c a n view the situation v e r y differently

. Th i s isn’t b ecause judg es have f ailed; the
stan d a r d itself promotes uncertainty

. B ecause there are no absolutes, judg es are left to ex ercise their judg ment based on their personal ex periences and predilections.

“L iberty f

inds no refug e i n a j u r isprudence of doubt.” Planned Parenthood of

Southeastern Pennsylvania v. Casey
, 505 U .S. 833, 844 (1992). Nowhere is this truer tha n i n t he

case o f speech, which is especially vulnerable to uncertainties in the law. This is why we have special doctrines applicable
to speech only

. F o r ex ample, we allow t h o s e w h ose rig hts haven’t been v iolated to bring s u i t , and we’ll strike d own a law, even if it has some co n stitutional application, if it’s substantially overbroad. S e e , e.g. , B roadrick v. Oklahoma

, 4 1 3 U .S. 601 ( 1973); D ombrowski v. P fister

, 380 U.S. 479 (1965); see also N.Y

. Times v. S

u l l i v a n , 376 U.S. 254, 272 (1964) (freedom of speech r e q uires “breathing s pace” (internal q

uotation marks omitted)). I t is o u r c o nstitutional duty to make the law of free speech clear and predictable.

To the ex tent Red Lion was justified by t h e state o f
t e chnolog y at the time it was written, it’s certain l y n o t justified by the state of technolog y t o d a y

. The bottlenecks and monopolies that ex isted in the field o f massM I N O R I T Y T E L E V I S I O

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communications when Red Lion w as decided n o long er ex ist. I t’s one of the oldes t m a x i ms of the common law that once the reason for a r ule ceases, the rule itself disappears. I t’s a

max im the Supreme Cour t r ecog n iz es and ex pects inferior
courts to honor. See Funk v

. United States
, 2 90 U.S. 371, 385–87 (1933). W e shouldn’t turn a blind ey e to the vast technolog ical chang es in t h e f i eld of mass communications that make broadcasting less sig nificant and pervasive every da y

. W e not only h ave the r ig ht, but also the constitutional duty

, to bru s h aside a precedent—venerable thoug h it may be—when its rationale has b e e n h o llowed out as if b y termites.

* * *

I would strike down as unco n s t i t u tional the statute a nd corresponding reg u lations that p r o h ibit public broadcast stations from carry

ing commercial, political o r issue advertisements. I would reverse the district court and remand with instructions that summary judg ment be g r anted in favor of the p laintiffs. And I would set public television and radio free to pursue its public mission to its full potential. W e ’d all be better off for it.