FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINORITY TELEVISION PROJECT, INC., 

Plaintiff-Appellant,

v. No. 09-17311

FEDERAL COMMUNICATIONS D.C. No. COMMISSION; et al.,  3:06-cv-02699-EDL Defendants-Appellees,

OPINION and

LINCOLN BROADCASTING COMPANY,

Intervenor. 

Appeal from the United States District Court

for the Northern District of California

Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted

November 1, 2010—San Francisco, California

Filed April 12, 2012

Before: John T. Noonan, Richard A. Paez, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Concurrence in Judgment by Judge Noonan;

Dissent by Judge Paez

3919
COUNSEL

Walter E. Diercks, Rubin, Winston, Diercks, Harris & Cooke

LLP, Washington, DC, for the plaintiff-appellant.

Mark B. Stern, United States Department of Justice, Civil

Division, Appellate Staff, for the defendants-appellees.

OPINION

BEA, Circuit Judge:

A federal statute, 47 U.S.C. § 399b prohibits public broadcast radio and television stations1

 from transmitting over the

public airways: 1) advertisements for goods and services on

behalf of for-profit entities, 2) advertisements regarding issues

of public importance or interest (“public issues”), and 3) polit1Public broadcast stations—alternatively called “noncommercial educational stations,” compare 47 U.S.C. § 399b with 47 C.F.R. § 73.621—are

stations which are “used primarily to serve the educational needs of the

community; for the advancement of educational programs; and to furnish

a nonprofit and noncommercial television broadcast service.” 47 C.F.R.

§ 73.621. 

3924 MINORITY TELEVISION PROJECT v. FCC
ical advertisements. 47 U.S.C. § 399b(a). The statute is therefore a content-based ban on speech: public broadcasters may

transmit many types of speech, but, unlike most other stations,

they may not transmit those three classes of advertising messages. Plaintiff-Appellant Minority Television Project, a public broadcaster, contends that this ban violates the First

Amendment. Applying intermediate scrutiny, we uphold the

ban on the transmission of advertisements for goods and services by for-profit entities, but we strike down as unconstitutional the ban on public issue and political advertisements.2

I. Facts and Prior Proceedings

Appellant Minority Television Project is a nonprofit California corporation which operates the San Francisco television station KMTP-TV. KMTP-TV focuses on what it

describes as “multicultural programming,” and it airs a wide

variety of non-English language television shows. KMTP-TV

is licensed as a public broadcast station by the FCC, which

sets aside certain broadcast frequencies for public radio and

television stations which transmit educational programming.

Unlike commercial stations, public broadcast stations are

expected not to rely on paid advertising, but on federal and

state subsidies, individual donors, special events, foundation

grants, and corporate contributions. See generally 47 C.F.R.

§ 73.621. KMTP-TV is one of the few public broadcast stations in the United States which does not receive funding

from the Corporation for Public Broadcasting (a private, nonprofit corporation created by Congress in 1967 to invest in

educational programming on public broadcast stations). See

47 U.S.C. § 396(g)(2)(B).

However, because of its status as a public broadcast station,

2

In an unpublished disposition filed concurrently with this opinion, we

address Minority’s contentions that § 399b is unconstitutionally vague,

and its appeal of the district court’s dismissal of its as-applied challenges

to § 399b and its implementing FCC orders. 

MINORITY TELEVISION PROJECT v. FCC 3925
Minority is nonetheless subject to 47 U.S.C. § 399b, which

prohibits public broadcast stations from transmitting any “advertisements.” Under § 399b, an “advertisement” is defined

as: (1) a paid promotional message from a for-profit entity,

(2) a paid message on any matter of public importance, or (3)

a paid message in support of a political candidate. The relevant portion of the statute reads:

(a) “Advertisement” defined. For purposes of this

section, the term “advertisement” means any message or other programming material which is broadcast or otherwise transmitted in exchange for any

remuneration, and which is intended—

(1) to promote any service, facility, or product

offered by any person who is engaged in such offering for profit;

(2) to express the views of any person with respect

to any matter of public importance or interest; or

(3) to support or oppose any candidate for political

office.

47 U.S.C. § 399b.

On August 9, 2002, pursuant to a complaint filed by

another broadcaster, the FCC determined that Minority had

violated § 399b approximately 1,900 times between the years

1999 and 2002. 7 FCC Rcd 15646 (2003). The FCC found

that Minority had “willfully and repeatedly” violated § 399b

when it broadcast paid promotional messages on KMTP-TV

from for-profit corporations such as State Farm, Chevrolet,

and U-Tron Computers.3 7 FCC Rcd 15646 (2003). Minority

3Minority does not contest that the broadcasts for which it was fined

were “advertisements” within the meaning of § 399b. The translated script

for a representative advertisement, for Asiana Airlines, read as follows: 

3926 MINORITY TELEVISION PROJECT v. FCC
was fined $10,000 by the FCC. 7 FCC Rcd 15646 (2003).

Minority paid its $10,000 fine, but also filed a complaint in

federal district court for the Northern District of California in

which it sought both reimbursement of the $10,000 and

declaratory relief. In relevant part, Minority alleged that

§ 399b violates the First Amendment because its restriction

on advertising was not narrowly tailored to the government’s

interest in preserving the educational programs on public

broadcast stations. Minority alleges that it has declined to

broadcast public issue and political advertisements and would

do so but for the fear of FCC fines and forfeitures similar to

those previously imposed and paid. Minority contended

§ 399b is an unconstitutional content-based restriction on

speech, because it bans all paid public issue and political

speech while permitting paid promotional messages by nonprofits. 

In response, the government contended § 399b’s restrictions on advertising are necessary to preserve the educational

nature of public broadcast programming. The government

contended that because advertisers naturally wish to reach the

largest possible audience, advertisers are more likely to buy

Female Character: “Did you get the surprising news Asiana

Airlines sent to you? Now you can get American Airline [sic]

free tickets using Asiana mileage.” 

Male Character: “Asiana Air now combines mileage with

American Airlines.” 

Female Character: “Now you can travel free to America, Central or South America, and even Europe—to 270 cities around

world [sic] earning mileage with Asiana Airlines. Although you

travel with Asiana Airlines or with American Airlines.” 

Male Character: “Now where do you want to go?” 

Female Character: “Well . . . . (laughter).” 

Male Character: “Mileage benefits with the best airline in the

world. Asiana Airlines.” 

MINORITY TELEVISION PROJECT v. FCC 3927
commercials on television programs with high numbers of

viewers. Thus, the government contended, advertisersupported television and radio stations have an incentive to

broadcast programs with mass-market appeal. According to

the government, if public television and radio stations became

financially dependant on advertising, such stations would

replace their niche educational programs with more popular

programs which have greater mass-market appeal, thus endangering the broadcast of the educational programs for which

public broadcast stations exist. See supra p. 3924, n.1. 

After discovery, Minority and the FCC filed cross-motions

for summary judgment on Minority’s facial challenges to

§ 399b. The district court applied intermediate scrutiny to

§ 399b, and determined the prohibitions on advertising were

narrowly tailored to meet the substantial government interest

in maintaining educational programming on public stations.

Minority timely appealed the district court’s grant of summary judgment. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s grant of summary judgment. United States v. Alisal Water Corp., 431 F.3d 643, 651

(9th Cir. 2005).

II. Determining What Level of Scrutiny Applies

As in all First Amendment cases, we must first determine

the correct standard of scrutiny to apply to the challenged statute. Because First Amendment doctrine and the media landscape have changed substantially in recent years, this is no

simple matter.

A. The Nature of the Restriction

[1] At the threshold of the inquiry, we must determine

whether this restriction is content based or content neutral.

We have previously held that “whether a statute is content

neutral or content based is something that can be determined

3928 MINORITY TELEVISION PROJECT v. FCC
on the face of it; if the statute describes speech by content,

then it is content based.” G.K. Ltd. Travel v. City of Lake

Osewego, 436 F.3d 1064, 1071 (9th Cir. 2006). Here, § 399b

imposes clear content-based restrictions on the station’s

speech. 

[2] First, Minority may broadcast a wide variety of content

for a wide variety of purposes, but the station may not air the

three types of advertisements banned by § 399b. That is a

content-based restriction, since it plainly restricts Minority’s

speech based on the speech’s content.

[3] Second, and equally important, § 399b discriminates

within the class of speech it defines as “advertisements.” Public broadcast stations may not broadcast most types of advertising speech, but these stations may broadcast paid

promotional messages for products and services of nonprofit

corporations. See 47 U.S.C. § 399b(a)(1). For example: the

record shows that the FCC allowed a public broadcast station

in Indiana to broadcast a paid message which promoted

Planned Parenthood’s “confidential, affordable reproductive

health services” because Planned Parenthood “is a non-profit

organization.” Nonetheless, a public broadcast station may

not broadcast a paid message “to express the views of any

person with respect to any matter of public importance” or “to

support or oppose any candidate for political office” regardless whether the sponsoring entity is an individual, a nonprofit

corporation, or a for-profit corporation. 47 U.S.C.

§ 399b(a)(2) and (a)(3). Thus, had Planned Parenthood sought

to air a paid message in support of Presidential candidates

who favored abortion rights, or sought to broadcast an “issue

ad” on the importance of sex education in schools, a public

broadcast station would have been prohibited from airing it

under § 399b(a)(2) and (a)(3). Indeed, in its letter to Planned

Parenthood, the FCC specifically stated that its proposed message did not violate § 399b because it did not support any candidate for political office, nor express any views with respect

MINORITY TELEVISION PROJECT v. FCC 3929
to a matter of public importance. But, as shown, Planned Parenthood could advertise to promote itself.

[4] Thus, § 399b prohibits a public broadcast station from

broadcasting any advertisement which expresses views on a

matter of public importance or on behalf of a political candidate regardless who sponsored the message—Planned Parenthood (a nonprofit), Apple, Inc. (a for-profit), or a committee

to re-elect President Obama (a political group). But it allows

a public broadcast station to transmit a paid promotional message from a nonprofit, so long as that message does not

express views on public issues or political candidates. That is

a further content-based restriction on speech, and this restriction in particular burdens speech on issues of public importance and political speech.

B. Intermediate Scrutiny Applies

[5] Having identified § 399b’s speech restrictions as

content-based on two levels, we must determine what level of

scrutiny to apply in our analysis. Because government regulation of content is one of the primary evils contemplated by the

First Amendment, content-based restrictions are strongly disfavored and are often subject to strict scrutiny. Indeed, in the

typical case, “[c]ontent-based regulations are presumptively

invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

Further, the bans on public issue and political advertisements appear at first glance to be especially strong candidates

for strict judicial scrutiny because political speech is “entitled

to the most exacting degree of First Amendment protection.”

League of Women Voters, 468 U.S. 364 at 375. Under strict

scrutiny, the government would be required to “prove that the

restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. FEC, 130 S.

Ct. 876, 898 (2010). 

[6] But this is not the typical case, because these particular

content-based restrictions on speech apply to broadcasters.

3930 MINORITY TELEVISION PROJECT v. FCC
For decades now, the Supreme Court has held that contentbased speech restrictions that apply to broadcasters are subject

to a less demanding form of judicial scrutiny than similar

restrictions that arise in other media contexts. See FCC v.

Pacifica Found., 438 U.S. 726 (1978). Indeed, in FCC v.

League of Women Voters, 468 U.S. 364 (1984), the Court held

that this intermediate level of scrutiny applies to regulations

governing public broadcasters in particular. Id. at 376-77. 

[7] Specifically, in League of Women Voters, the Court

observed that “because broadcast regulation involves unique

considerations, our cases have not followed precisely the

same approach that we have applied to other media and have

never gone so far as to demand that such regulations serve

‘compelling’ governmental interests.” League of Women Voters, 468 U.S. at 376. Pursuant to the Commerce Clause, Congress regulates the broadcast spectrum—which is a “scarce

and valuable national resource”—to ensure that stations

which broadcast on those frequencies “satisfy the public interest, convenience, and necessity.”

4

Id. Thus, when Congress

4Since 1927, the federal government has required radio and television

stations which wish to transmit over-the-air signals to obtain a license to

broadcast on a particular frequency. See Radio Act of 1927, 44 Stat. 1162

(1927). Since 1939, the FCC has reserved certain frequencies for public

television and radio broadcasting stations. 47 CFR §§ 4.131-4.133 (1939)

(radio); 41 F.C.C. 148 (1952) (television). The FCC justified its reservation of frequencies for public broadcast television stations by noting that

broadcast frequencies are a scarce national resource, and public broadcast

stations would provide “programming of an entirely different character

from that available on most commercial stations.” Id. at 166, ¶ 57. 

When the FCC set aside television frequencies for public broadcast stations, it noted that the “objective for which special educational reservations have been established—i.e., the establishment of a genuinely

educational type of service—would not be furthered by permitting educational institutions to operate in substantially the same manner as commercial applicants.” Id. As a result, the FCC placed strict restrictions on

advertising on public broadcast stations. Before the 1981 enaction of

§ 399b, public broadcast stations were barred from broadcasting any

advertisement, and could identify program sponsors only by name. Id. 

MINORITY TELEVISION PROJECT v. FCC 3931
acts pursuant to its regulation of the broadcast spectrum, it

does not operate under the same First Amendment standards

that apply to regulation of other forms of media. Instead, in

light of the history behind Congressional regulation of the

broadcast spectrum, the Supreme Court has held that laws

enacted pursuant to Congressional broadcast regulation—

even those which, as here, impose a content-based restriction

on core political speech—are subject to intermediate First

Amendment scrutiny. Under intermediate scrutiny, the government must prove a challenged statute is “narrowly tailored

to further a substantial governmental interest.” Id. at 380.

Despite the Court’s pronouncement in League of Women

Voters, which was a public broadcasting case, Minority urges

us to apply strict scrutiny for two different reasons. First, citing a concurring opinion in FCC v. Fox Television Stations,

Inc., 129 S. Ct. 1800 (2009), which questioned the continuing

validity of the broadcast regulation precedents on which

League of Women Voters relied, Minority contends that new

technologies such as cable and the Internet have undermined

the core “spectrum scarcity” rationale of broadcast regulation

cases. Id. at 1821 (Thomas, J., concurring). Under this theory,

because “traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were,”

id., courts should no longer treat broadcast restrictions any

differently from other restrictions on speech.

Minority is surely correct that much has changed in the

media landscape since the Supreme Court, in the 1970s, first

adopted a standard that treats broadcasters differently under

the First Amendment. Indeed, it is possible that the Supreme

Court itself may soon declare that the era of a special broadcast exemption from strict scrutiny is over. After briefing and

argument in this case, the Supreme Court heard argument in

a case in which a coalition of the nation’s major broadcasters

have asked the Court to overrule Pacifica and its progeny and

“announce firmly and finally that the time for treating broadcast speech differently than all other communications is

3932 MINORITY TELEVISION PROJECT v. FCC
over.” Br. of Respondents Fox Television Stations et al. in

FCC v. Fox Television Stations, No. 10-1293, at 1. 

But that case has not yet been decided. Thus, just as golfers

must play the ball as it lies, so too we must apply the law of

broadcast regulation as it stands today. A majority of the

Supreme Court has not overruled Pacifica, League of Women

Voters, and related cases. Intermediate broadcast scrutiny

remains in vigor, and it governs this case.

Second, pointing to the bans on public issue and political

advertising in particular, Minority contends that § 399b

should be subject to strict scrutiny in the wake of Citizens

United v. FEC, 130 S. Ct. 876, 886 (2010). Citizens United

applied strict scrutiny to 2 U.S.C. § 441b, which prohibited

corporations from engaging in “electioneering communications”5

 within 30 days of a primary or 60 days of a general

election, and held that the statute violated the First Amendment. Id. at 890. “The only reasonable conclusion that can be

drawn from Citizens United,” contends Minority, “is that any

restriction or prohibition of political speech on broadcast

radio or television is subject to strict scrutiny.” 

We disagree. Citizens United was not a broadcast regulation case, so the Court there had no reason to revisit League

of Women Voters and related cases. Instead, the Court relied

on its previous application of strict scrutiny in cases which

challenged the constitutionality of restrictions on campaign

expenditures, not broadcast spectrum regulation. See id. at

899 (citing FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 464

(2007), a previous case which analyzed § 441b, for the proposition that “laws that burden political speech are subject to

strict scrutiny”). Thus, in Citizens United, the Court applied

5

“Electioneering communication” was defined as “any broadcast, cable,

or satellite communication” that “refers to a clearly identified candidate

for Federal office,” or any communication which is “publicly distributed,”

regardless of the medium. Citizens United, 130 S. Ct. 876, 887. 

MINORITY TELEVISION PROJECT v. FCC 3933
strict scrutiny to § 441b because that statute dealt with regulations on campaign expenditures generally. See, e.g., id. at 897

(listing, as acts that would be outlawed under § 441b, corporations running advertisements, publishing books, or creating

websites). Citizens United in no way dealt with the “unique

considerations” inherent in Congress’s regulation of the

broadcast spectrum. 

Moreover, Citizens United expressly overruled two of the

Court’s prior decisions: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which permitted a ban on speech

based on corporate identity, and McConnell v. FEC, 540 U.S.

93 (2003), which relied on Austin to uphold a facial challenge

to § 441b. Neither case involved regulation of public broadcasting. Thus, it is not surprising that the Court in Citizens

United did not once mention League of Women Voters; it was

neither overruled nor distinguished away. That is fatal to

Minority’s contention, because in League of Women Voters,

the Supreme Court specifically rejected the contention that

content-based laws which burden political speech and are

enacted pursuant to the broadcast spectrum require the application of strict judicial scrutiny. League of Women Voters,

468 U.S. at 376. 

We therefore apply intermediate scrutiny to the restrictions.

As explained below, we keep in mind as we apply that standard that public issue and political speech in particular is at

the very core of the First Amendment’s protection. We also

must be mindful that the narrow tailoring prong of the intermediate scrutiny standard itself has undergone additional

elaboration by the Supreme Court since League of Women

Voters was decided in 1984. It is the details of that standard

to which we now turn.

C. The Requirements of Intermediate Scrutiny

1. League of Women Voters

In determining what the application of intermediate scrutiny entails, League of Women Voters is our starting point. In

3934 MINORITY TELEVISION PROJECT v. FCC
that case, the Supreme Court considered a First Amendment

challenge to a statute which forbade any public broadcasting

station from transmitting editorials on “controversial issues of

public importance” if that station had received a grant from

the Corporation for Public Broadcasting. The Court in League

of Women Voters held that the ban on station editorials was

“defined solely on the basis of the content of the suppressed

speech.” Id. at 383. “In order to determine whether a particular statement by station management constitutes an ‘editorial,’ ” the Court reasoned, “enforcement authorities must

necessarily examine the content of the message that is conveyed to determine whether the views expressed concern

‘controversial issues of public importance.’ ” Id. Although the

Court held that the statute at issue in League of Women Voters

was viewpoint-neutral—i.e., it prohibited station editorials on

all sides of an issue—the Court held the “First Amendment’s

hostility to content-based regulation extends not only to

restrictions on particular viewpoints, but also to prohibition of

public discussion on an entire topic”; thus, the Court held the

statute was a content-based restriction on speech. Id. at 384.

In light of the First Amendment’s hostility towards contentbased restrictions on speech touching on controversial issues

of public importance on the one hand, and deference afforded

to Congress’s regulation of the broadcast spectrum on the

other, the Court in League of Women Voters held that a robust

form of intermediate scrutiny applies to content-based restrictions on broadcast speech which burden political expression.

Under the standard applied in League of Women Voters, a

restriction on speech will be upheld only if the government

proves “the restriction is narrowly tailored to further a substantial governmental interest.” Id. at 380. The Court in

League of Women Voters—while declining to require the government to prove a “compelling” interest under the more

stringent strict scrutiny test—required judicial “wariness”

within the standard it described. The Court did so because the

statute at issue in that case restricted editorials, which are

“precisely the form of speech which the Framers of the Bill

MINORITY TELEVISION PROJECT v. FCC 3935
of Rights were most anxious to protect—speech that is indispensable to the discovery and spread of political truth.” Id. at

383. The Court said that it “must be particularly wary in

assessing [the statute] to determine whether it reflects an

impermissible attempt to allow the government to control . . .

the search for political truth.” Id. at 384 (emphasis added). 

The Court held that the restriction there was not narrowly

tailored. Id. at 395. Rather, a “broad ban on all editorializing

by every station that receives [Corporation for Public Broadcasting] funds far exceeds what is necessary to protect against

the risk of governmental interference or to prevent the public

from assuming that editorials by public broadcasting stations

represent the official view of government.” Id. Although the

Court recognized that “the Government certainly has a substantial interest in ensuring that the audiences of noncommercial stations will not be led to think that the broadcaster’s

editorials reflect the official view of the Government,” the

Court said that “this interest can be fully satisfied by less

restrictive means that are readily available.” Id. For example,

the Court stated that Congress could “simply require public

broadcasting stations to broadcast a disclaimer every time

they air editorials which would state that the editorial . . . does

not in any way represent the views of the Federal Government

or any of the station’s other sources of funding.” Id. Thus, the

Court held the ban on station editorials unconstitutional and

affirmed the grant of summary judgment to the League of

Women Voters. Id. at 402.

For the purposes of application of the proper level of scrutiny, the statute at issue in this case is similar to the challenged statute in League of Women Voters.

6

 Section 399b

makes content-based distinctions which, by their terms, burden speech in a similar manner to the provision at issue in

League of Women Voters. Like the statute in League of

6The statute in that case can be found at 47 U.S.C. § 399 (1982) (subsequently amended by Pub. L. 100-626 (1988)). 

3936 MINORITY TELEVISION PROJECT v. FCC
Women Voters, § 399b was enacted pursuant to Congress’s

regulation of public broadcast stations—stations which were

explicitly set aside for educational programming. Moreover,

subsections 399b(a)(2) and (a)(3) share the additional similarity with the provision at issue in League of Women Voters that

the provisions burden public issue and core political speech.

2. Subsequent Elaboration: The Turner Cases and

Discovery Network

We are conscious, of course, that First Amendment doctrine has not been stagnant in the nearly thirty years since

League of Women Voters was decided. We must also consider

further elaborations of the narrow tailoring inquiry under

intermediate scrutiny. We thus take guidance in particular

from two cases together known as “the Turner cases,” as well

from select commercial speech cases that applied intermediate

scrutiny, especially Cincinnati v. Discovery Network, 507

U.S. 410 (1993).

In the mid-1990s, the Supreme Court had occasion comprehensively to describe intermediate broadcast scrutiny, albeit in

a slightly different context from that here, in a pair of cases

known as the Turner cases. In Turner Broadcasting System v.

FCC, 512 U.S. 622 (1994) (“Turner I”), the Supreme Court

reversed, for further factfinding, the district court’s grant of

summary judgment to the FCC on a First Amendment challenge to a statute which compelled cable companies to carry

local broadcast stations. 512 U.S. at 667. The Court held that

there was not enough evidence in the record to determine

whether local broadcast stations would go out of business if

cable companies were not required by law to carry local

broadcast stations. Id. at 668. The Court revisited the dispute

after additional discovery in district court in Turner Broadcasting System v. FCC, 520 U.S. 180 (1997) (“Turner II”). In

Turner II, the Court upheld the district court’s decision on

remand in favor of the FCC because the additional record evidence supported Congress’s determinations. Id. at 224. 

MINORITY TELEVISION PROJECT v. FCC 3937
[8] As relevant here, the guiding principle of narrow tailoring under intermediate scrutiny is that the government must

“demonstrate that the recited harms” to the substantial governmental interest “are real, not merely conjectural, and that

the regulation will in fact alleviate those harms in a direct and

material way.” Turner I, 512 U.S. at 664-65. Furthermore,

although a statute is “not invalid simply because there is some

imaginable alternative that might be less burdensome on

speech,” Turner II, 520 U.S. at 217, the government must

prove that the statute does not “burden substantially more

speech than is necessary to further the government’s legitimate interests.” Turner I, 512 U.S. at 665 (internal quotations

omitted). Importantly, the government must prove both the

reality of the recited harms and that the statute does not burden more speech than necessary “by substantial evidence.”

Turner II, 520 U.S. at 211. “Substantial evidence” must

include “substantial evidence in the record before Congress”

at the time of the statute’s enaction.7Id.

[9] Additional instruction on what narrow tailoring

requires comes from Cincinnati v. Discovery Network, 507

U.S. 410 (1993). In Discovery Network, the Court was faced

with a content-based restriction on speech: a city ordinance

banned sidewalk newsracks which distributed “commercial

handbills,” but not newsracks which distributed “newspapers.” Id. at 429. A group of publishers of commercial handbills challenged the statute as an impermissible content-based

restriction on speech prohibited by the First Amendment. Id.

at 412. The city defended the ordinance by contending it fur7While the Court in Turner I held that the regulation there was not

content-based, see 512 at 652, these cases nonetheless guide the analysis

because they are the most comprehensive descriptions of intermediate

scrutiny in the First Amendment context. The government’s brief draws

heavily from these cases. Indeed, the D.C. Circuit recently drew heavily

on the Turner cases when it applied Second Amendment intermediate

scrutiny to a series of new gun regulations imposed by the District of

Columbia. See Heller v. District of Columbia, ___ F.3d ___, 2011 WL

4551558, at *11 (D.C. Cir. Oct. 4, 2011). 

3938 MINORITY TELEVISION PROJECT v. FCC
thered its “legitimate interest in ensuring safe streets and regulating visual blight.” Id. at 415. Cincinnati contended

newsracks in general undermined safety and esthetics in the

public right of way; thus, the ban on newsracks which contained a certain type of content was justified because it necessarily reduced the total number of newsracks on sidewalks.

Id. at 415. 

The Supreme Court held the statute unconstitutional,

because the “selective and categorical” content-based ban on

newsracks containing handbills was not narrowly tailored to

the city’s purported interest. Id. at 417. Although the city’s

“desire to limit the total number of newsracks is justified by

its interests in safety and esthetics,” the statute was “unrelated

to any distinction between ‘commercial handbills’ and ‘newspapers,’ ” and thus was not narrowly tailored. Id. at 429-30

(emphasis added, some internal quotation marks omitted).

The Court said:

The city has asserted an interest in esthetics, but

respondent publishers’ newsracks are no greater an

eyesore than the newsracks permitted to remain on

Cincinnati’s sidewalks. Each newsrack, whether

containing “newspapers” or “commercial handbills,”

is equally unattractive . . . . [T]he city’s primary concern, as argued to us, is with the aggregate number

of newsracks on the streets. On that score, however,

all newsracks, regardless whether they contain commercial or noncommercial publications, are equally

at fault.

Id. at 425-26.

[10] Thus, the Court held the newsrack ordinance was not

narrowly tailored, because there was no proof that newsracks

containing handbills (banned) threatened the governmental

interests in esthetics and safety to a greater degree than newsracks containing newspapers (permitted). Therefore, the Court

MINORITY TELEVISION PROJECT v. FCC 3939
held the costs and benefits of the statute had not been “carefully calculated” to meet the substantial governmental interest. See id. at 416 n.12. Notably, the ordinance did not

regulate the number of newsracks permitted on the city’s sidewalks, regardless their content.8

D. Summary

[11] Synthesizing three decades of First Amendment cases,

then, we take heed of two key principles. First, for us to sustain any content-based restriction, the government must prove

both the reality of the recited harms and that the statute does

not burden more speech than necessary “by substantial evidence.” Turner II, 520 U.S. at 211. “Substantial evidence”

must include “substantial evidence in the record before Congress” at the time of the statute’s enaction. Id. Second, when

Congress enacts a “selective and categorical” ban on speech,

8The Supreme Court’s recent decision in Sorrell v. IMS Health Inc., 131

S. Ct. 2653 (2011), reaffirms that § 399b would be subjected to rigorous

analysis even if viewed through the lens of commercial speech. In that

case, the Court struck down a Vermont law which restricted the sale, disclosure, and use of records created by pharmacies that reveal the prescribing habits of doctors. Such records are useful to drug companies who

market their drugs to doctors. That case therefore involved paradigmatic

commercial speech, but the Court nonetheless noted that “the First

Amendment requires heightened scrutiny whenever the government

creates ‘a regulation of speech because of disagreement with the message

it conveys.’ ” Id. at 2664 (quoting Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989)). The Court continued by noting that “[c]ommercial

speech is no exception” to this principle in part because a “consumer’s

concern for the free flow of commercial speech often may be far keener

than his concern for urgent political dialogue.” Id. (quotation marks omitted). 

However, because “the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied,” the

Court did not formally overrule any cases holding that commercial speech

is subject to less protection than core public issue or political speech. Id.

at 2667. Thus, after Sorrell, it is clear that commercial speech is subject

to a demanding form of intermediate scrutiny analysis. 

3940 MINORITY TELEVISION PROJECT v. FCC
as here, the government must prove that the speech banned by

a statute poses a greater threat to the government’s purported

interest than the speech permitted by the statute. Discovery

Network, 507 U.S. at 425.

III. Analysis of § 399b

Our final step is to determine whether the government has

carried its burden to prove that § 399b passes intermediate

First Amendment scrutiny. Intermediate scrutiny requires the

government to prove a challenged statute is narrowly tailored

to a substantial government interest. League of Women Voters, 468 U.S. at 380. We hold that 399b(a)(1), which prohibits

advertising by for-profit entities for their goods and services,

meets this standard. However, 399b(a)(2) and (a)(3), which

prohibit public issue and political advertising, do not.

A. The Subsections are Severable

We must decide at what level of generality to undertake the

analysis. That is: do all provisions of § 399b stand or fall

together, or should we analyze separately subsections

399b(a)(1), (a)(2), and (a)(3)? We conclude that it is appropriate to sever the provisions and analyze them separately.

[12] Although neither § 399b nor the Public Broadcasting

Amendments Act of 1981 contains an explicit severability

clause, we are confident that we nevertheless may hold one

section constitutional without so holding as to the others. Statutes are presumptively severable and “a court should refrain

from invalidating more of the statute than is necessary.”

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). We

may sever the statute “[u]nless it is evident that the Legislature would not have enacted those provisions which are

within its power, independently of that which is not.” Id. 

[13] Here, we see no reason to think that Congress would

not have enacted the ban on promotional advertising by forMINORITY TELEVISION PROJECT v. FCC 3941
profit entities if it could not also have enacted the bans on

political or public issue advertising. Moreover, neither party

contends the statute is not severable, and the district court

analyzed the provisions separately. There is thus no warrant

for departing from the general presumption of severability in

this case.

Our conclusion is further supported by Congress’s decision

to ban advertising selectively. Since Congress determined that

these three classes of advertising should be banned, then Congress must “demonstrate that the recited harms” to the substantial governmental interest of each class of advertising “are

real, not merely conjectural, and that the regulation will in

fact alleviate those harms in a direct and material way.” Turner I, 512 U.S. at 664-65. It is that inquiry to which we now

turn.

B. The Government’s Overall Interest

[14] The government asserts the same interest is furthered

by all three of § 399b’s restrictions on advertising: that Congress may ban advertising on public television stations to

ensure that high quality educational and noncommercial programming is broadcast on the public airwaves. The government contends that if public broadcast stations were permitted

to transmit paid commercial, public issue, and political advertisements, public broadcast stations would attempt to attract

advertising dollars by replacing niche educational programming with programming of greater mass-market appeal. In

turn, the distinction between public broadcast and commercial

stations would be blurred—and the breadth of quality educational and other noncommercial programming on public

broadcast stations would be reduced.

As an initial matter, we hold the government has a substantial interest in ensuring high-quality educational programing

on public broadcast stations—a conclusion Minority does not

dispute. Even though cable, satellite, and the Internet have

3942 MINORITY TELEVISION PROJECT v. FCC
changed the nature of television and radio, the broadcast spectrum remains a finite national resource. Congress set aside

broadcast frequencies for public stations to ensure Americans

would have access to niche programming such as public

affairs shows and educational programs for children. See 41

F.C.C. at 166, ¶ 57 (FCC reserves broadcast frequencies for

public broadcast stations because they offer “programming of

an entirely different character from that available on most

commercial stations”). 

[15] Moreover, the government has submitted unrebutted

evidence that public broadcast stations do broadcast substantially different types of programs than do commercial stations.

For example, the Government Accountability Office has

determined that 16 percent of all program hours broadcast by

public television stations are devoted to educational children’s

programming. By contrast, commercial broadcasters devote

less than 2 percent of their program hours to educational or

informational children’s programming. According to a Senate

report submitted by the government, public television is “the

primary source of educational children’s programming in the

United States.” Children’s Television Act of 1990, S. Rep.

No. 101-66 at 3, reprinted in 1990 U.S.C.C.A.N. 1628, 1633.

Public broadcast stations regularly broadcast renowned children’s shows such as “Sesame Street,” “Mr. Roger’s Neighborhood,” and “Reading Rainbow,” which attempt to teach

children to read and to do sums. Id. at 23-36, 1990

U.S.C.C.A.N. at 1631-33. Again, Minority does not dispute

that the government’s interest in maintaining public broadcast

stations’ niche programming is “substantial.” Instead, Minority contends that § 399b is not narrowly tailored to the

asserted government interest.

C. Whether The Restrictions Are Narrowly Tailored

We thus turn to the “narrowly tailored” prong of the intermediate scrutiny test. Under the Turner cases, the government

must “demonstrate that the recited harms” to the substantial

governmental interest “are real, not merely conjectural, and

MINORITY TELEVISION PROJECT v. FCC 3943
that the regulation will in fact alleviate those harms in a direct

and material way.” Turner I, 512 U.S. at 664-65. The government must prove both the reality of the recited harms and that

the statute does not burden more speech than necessary “by

substantial evidence.” Turner II, 520 U.S. at 211. “Substantial

evidence” must include “substantial evidence in the record

before Congress” at the time of the statute’s enaction. Id.

Moreover, when Congress enacts a “selective and categorical”

ban on speech, as here, the government must prove that the

speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the

statute. See Discovery Network, 507 U.S. at 425, 429.

1. Subsection 399b(a)(1)

We first turn to 399b(a)(1), the restriction on paid advertisements for goods and services on behalf of for-profit corporations. As in the Turner cases, we hold that there was

“substantial evidence”—including “substantial evidence in

the record before Congress”—to support Congress’s conclusions that: a) the harm posed by advertising by for-profit entities on public broadcast stations was “real, not merely

conjectural,” and b) banning advertising by for-profit entities

does not “burden substantially more speech than necessary to

further the government’s legitimate interest.” Turner I, 512

U.S. at 664-65.

[16] Prior to the enactment of § 399b in 1981, Congress

considered eliminating all advertising restrictions on public

broadcast stations. Congress’s decision to continue regulation

of promotional advertising—at least by for-profit entities—on

public broadcast stations was supported by substantial evidence presented to Congress that advertising would harm the

educational mission of public broadcast stations. Congress

heard testimony by a senior vice president from National Public Radio (“NPR”), who testified that an internal study conducted by NPR had shown that “on-air advertising” would

hold “little or no promise for public radio,” because public

3944 MINORITY TELEVISION PROJECT v. FCC
radio stations broadcast precisely “what commercial stations

choose not to broadcast because of insubstantial income

potential.” (emphasis added). Congress also heard testimony

from John C. DeWitt, from the American Foundation for the

Blind, who testified that he was concerned a “commercialization of public broadcasting” would focus public broadcast

programming towards the “lowest common denominator,”

rather than “diverse audiences,” including minorities, women

and the “print handicapped.” Finally, Congress had before it

written testimony by the Association of Independent Video

and Filmmakers, which stated unequivocally: “commercialization will make public television indistinguishable from the

new commercial or pay culture cable services. And public

television will fail.” 

[17] In addition to the evidence which was before Congress in 1981, the government submitted a report from Roger

G. Noll, an emeritus professor at Stanford University, who

had written several books on the economics of the television

industry. Noll’s report concluded that because advertisers

wish to air commercials on television programs with high

numbers of viewers, “[a] competitive, advertiser-supported

television system leads to an emphasis on mass entertainment

programming.” Advertiser-supported television provides few

“programs that serve a small audience, even if that audience

has an intense desire to watch programs that differ from standard mass entertainment programs.” Commercial television

stations, for example—which are primarily reliant on

advertising—offer “children’s programming only if it can be

used to market products to children,” despite parents’ desire

to have their children watch educational television programming. The government buttressed Noll’s report with a declaration from Lance Ozier, the former president of a nonprofit

organization which operates a number of public broadcast

television stations in Massachusetts. Ozier stated that the educational programs on public broadcast stations “do not attract

sufficient viewership to attract substantial advertising revenue.” Thus, “subjecting non-commercial stations to the same

MINORITY TELEVISION PROJECT v. FCC 3945
commercial pressures faced by commercial stations would

make it economically impossible to provide such programming.”

Minority urges us to discount the evidence before Congress

in 1981 as “the opinions, predictions and wishes of the witness[es] unencumbered by any evidence.” Minority is correct

that Congress had no empirical data—statistics, academic

studies, or otherwise—to support its 1981 conclusion that

allowing commercial advertising on public broadcast stations

would undermine niche programming on those stations. But

we are unaware of any authority which requires a particular

type of evidence in the record before Congress. Indeed, Turner I reminds us that “[s]ound policymaking often requires

legislators to forecast future events and to anticipate the likely

impact of these events,” Turner I, 512 U.S. at 665. We do not

normally “substitute our judgment for the reasonable conclusion of a legislative body.” Turner II, 520 U.S. at 211. Moreover, “Congress is not obligated, when enacting its statutes,

to make a record of the type that an administrative agency or

court does to accommodate judicial review.” Turner I, 512

U.S. at 666. 

[18] We thus decline Minority’s invitation to second-guess

Congress as to the quality of the evidence before it as to the

probable effect commercial advertising by for-profit firms

would have on program content. In light of the deference we

afford to Congress’s legislative judgments, we conclude that

Congress’s conclusion that paid promotional messages by forprofit entities pose a threat to extinguish public broadcast stations’ niche programming was supported by substantial evidence, including “substantial evidence in the record before

Congress.” Turner II, 520 U.S. at 211. Moreover, all of the

evidence which was before Congress—and which was submitted by the government to the district court—evinces a

strong connection between the harm recited and the prevalence of commercial advertising. Thus, we cannot conclude

that § 399b(a)(1) “burden[s] substantially more speech than is

3946 MINORITY TELEVISION PROJECT v. FCC
necessary to further the government’s legitimate interests.”

Turner I, 512 U.S. at 665.

2. Subsections 399b(a)(2) and (a)(3)

The outcome is different for subsections 399b(a)(2) and

(a)(3), which proscribe public issue and political advertising.

As we explain, there is simply no evidence in the record—

much less “substantial evidence in the record before Congress” at the time of the statute’s enaction, Turner II, 520 U.S.

at 411—to connect the ban on this speech to the government’s

interest in maintaining certain types of programming. Moreover, there is no evidence that public issue and political

advertisements, which are banned, are more harmful than

advertisements for goods and services by non-profits, which

are allowed. Discovery Network, 507 U.S. at 425.

As previously discussed, we accept Congress’s conclusion

that commercial advertisers seek the largest audience possible, and that, were public broadcast stations permitted to

transmit commercial advertisements without restriction, such

stations would seek to make themselves more attractive to

advertisers by broadcasting programs with mass-market

appeal. But neither logic nor evidence supports the notion that

public issue and political advertisers are likely to encourage

public broadcast stations to dilute the kind of noncommercial

programming whose maintenance is the substantial interest

that would support the advertising bans.

[19] To take two key examples: the government cites

ample evidence that public television provides “more public

affairs programming and children’s and family programming”

than advertiser supported stations do. It is easy to see how the

ban on commercial advertisements in subsection 399b(a)(1) is

narrowly tailored to further the governmental interest in preserving such niche programming. But the connection between

a ban on public issue and political advertisements and the

interest of promoting niche programming is, to put it generMINORITY TELEVISION PROJECT v. FCC 3947
ously, tenuous—and a tenuous connection is not enough to

survive intermediate scrutiny. The restriction must be “narrowly tailored” and there must be “substantial evidence” that

supports the restrictions.

[20] Consider first the effect of the ban on public issue and

political advertisements on the nature and prevalence of children’s educational programming. There is virtually no way

that these advertisements, if allowed, would negatively affect

the nature of children’s programming on public television stations. After all, the large majority of viewers of these programs are legally prohibited from voting, so there is virtually

no incentive for a station to alter its children’s programming

to suit the preferences of a political candidate or issue group.

At the outer reaches of one’s imagination, perhaps, lies a

potential Saturday morning cartoon featuring an appearance

by President Obama or Candidate Romney, Santorum, Paul,

or Gingrich, wherein the political personality appears in the

episode to fight crime alongside Superman or Batman. It is

true that such cartoon would be more likely to exist on a station where the particular candidate is able to run a 30-second

political advertisement before and after his world-saving

derring-do than on a station where such advertisements are

prohibited. But the possibility that such cartoons will replace

“Sesame Street” anytime soon seems quite remote. At best, it

is pure speculation, which was never mentioned before Congress. Upholding the ban on public issue and political advertising requires more than speculation.

The interest in maintaining public affairs programming of

the sort currently seen on public television is a slightly closer

case, but the government still fails to carry its burden. There

are a few scattered remarks in the record that, with § 399b,

Congress wished to “insulate public broadcasting from special

interest influences—political, commercial, or any other kind.”

127 Cong. Rec. 13145 (June 22, 1981) (remarks of Rep. Gonzalez); see also H.R. Rep. No. 97-82, 97th Cong., 1st Sess. 16

(1981) (emphasizing the need for “insulation of program con3948 MINORITY TELEVISION PROJECT v. FCC
trol and content from the influence of special interests—be

they commercial, political, or religious”). The temptation of

receiving advertising dollars from groups or individuals who

wish to air public issue or political advertisements are indeed

the types of special interest influences that could distort the

nature of public affairs programming offered on public television. Especially in an election season, we see how a news

broadcaster may be tempted to alter the content of its public

affairs programming if it thinks it can garner additional advertising dollars from one or another campaign, SuperPAC, or

advocacy group by doing so.

[21] But speculation aside, there is no evidence in the

record—much less evidence which was in the record before

Congress—to support Congress’s specific determination that

public issue and political advertisements impact the programming decisions of public broadcast stations to a degree that

justifies the comprehensive advertising restriction at issue

here. In Turner II, the Supreme Court stated that such evidence must at least include “substantial evidence in the record

before Congress” at the time of the statute’s enaction, Turner

II, 520 U.S. at 211. Here, the government fails to point to evidence to support the needed connection between the means of

§ 399b(a)(2) and (a)(3) (prohibition of public issue and political issue advertisements) and the ends to be achieved (survival of educational programming). For instance, no witness

testified to Congress in 1981 as to the relative motivations of

public issue and political advertisers when compared to other

advertisers. Instead, the only evidence before Congress dealt

with the motivations of commercial advertisers or advertisers

generally. But the type of advertising proscribed by

§ 399b(a)(2) and (a)(3) is very different than that proscribed

by (a)(1). 

Further, the only evidence cited by the government in the

district court and in its brief to support § 399b(a)(3)’s contentbased restriction on political speech was a 2008 article in

AdWeek Magazine which stated that $2.2 billion was spent

MINORITY TELEVISION PROJECT v. FCC 3949
on political campaign advertisements during 2008. The

AdWeek article did not provide any figures for the amount of

money spent on non-political advertising, so the significance

of the $2.2 billion figure is unclear. Additionally, the fact that

a large amount of money was spent on political television

advertisements in 2008 is not “substantial evidence” that

political advertisers seek a larger audience than do nonprofits

advertisers, or that they distort programming decisions by

buying advertising time. And a magazine article from 2008

certainly was not “substantial evidence [which was] in the

record before Congress” 27 years earlier, in 1981, when

§ 399b was enacted. See Turner II, 520 U.S. at 211. Moreover, there was no evidence presented by the government to

justify § 399b(a)(2)’s restriction on public issue speech.

[22] Indeed, of the Congressional testimony relied on by

the district court in its determination that the statute withstood

intermediate scrutiny, it is instructive that two of the three

representatives referred explicitly to the threat to public

broadcasters of “commercialization.” John C. DeWitt from

the American Foundation for the Blind testified that he was

concerned the “commercialization of public broadcasting”

threatened to focus its programming towards the “lowest common denominator,” rather than “diverse audiences,” including

minorities, women and the “print handicapped.” Hearings

before the Subcomm. on Telecommns, Consumer Protection,

and Finance of the H. Comm. on Energy and Commerce on

H.R. 3238 and H.R. 2774, 97th Cong. 1st Sess. (1981) (“1981

House Hearings.”). This does nothing to support the bans in

subsections (a)(2) and (a)(3), because public issue and political advertisements pose no threat of “commercialization.” By

definition, such advertisements do not encourage viewers to

buy commercial goods and services. A ban on such advertising therefore cannot be narrowly tailored to serve the interest

of preventing the “commercialization” of broadcasting.

The district court also cited testimony of the Association of

Independent Video and Filmmakers (AIVF). AIVF’s testi3950 MINORITY TELEVISION PROJECT v. FCC
mony stated unequivocally that “commercialization will make

public television indistinguishable from the new commercial

or pay culture cable services. And public television will fail.”

But again, this concern simply does not implicate public issue

and political advertisements.9

Ultimately, the most revealing statement in the government’s brief on this point is the following sentence, which

contains no citations: “Political advertisers are no less capable

of exerting influence on programmers than commercial advertisers, and, accordingly, political advertising has never been

permitted in public broadcasting.” If that preliminary statement of fact about the ability of political advertisers to exert

program influence were supported by some evidence—in particular, some evidence before Congress when it enacted the

ban—the government could sustain its burden under intermediate scrutiny. But at such a critical point, the government

makes only a bare assertion, unsupported by citation to any

evidence. The government cannot simply assert its way out of

the “substantial evidence” requirement of the First Amendment.10

9A third piece of testimony before Congress in 1981 was by a representative from National Public Radio (NPR), and that testimony is on the

whole unhelpful to the government. The NPR representative in fact suggested that the programs provided by public television stations could survive a statutory scheme which allowed paid advertising generally. The

NPR representative testified that, per NPR’s internal study, “on-air advertising and pay cable fall into [a] category” which “may attract money for

some public television stations, [but] hold little or no promise for public

radio.” Thus, the NPR testimony cannot be “substantial evidence” that

prohibitions on public issue or political advertisements were “necessary to

preserve” public broadcasting stations’ programming. 

10The dissent contends that the Constitution imposes only two “procedural” requirements on a law’s passage, bicameralism and presentment,

and therefore objects to the conclusion that “the constitutionality of a federal law might turn on the quantity and quality of evidence before Congress at the time of enactment.” Dissent at 3968-69. But those are two

different questions: one is what the Constitution requires for enactment of

a law, and another is what the First Amendment to the Constitution

MINORITY TELEVISION PROJECT v. FCC 3951
[23] The fact that Congress chose not to ban all advertisements, but left a gap for certain non-profit advertisements, is

also fatal to its case under the analysis in Discovery Network,

the commercial handbills case. Here, the banned speech (public issue and political advertisements) is analogous to Discovery Network’s handbills; the permitted speech (promotional

advertisements by nonprofits) is analogous to the Discovery

Network’s newspapers. And just as the city in Discovery Network was required to prove that handbill-dispensing newsracks posed a greater threat to public safety and esthetics than

newspaper-dispensing newsracks, the government here must

prove that public issue and political advertisements pose a

greater threat to educational programming on public broadcast

stations than promotional advertisements on behalf of nonprofits. 507 U.S. at 424. Indeed, the government’s burden is

even higher here than in Discovery Network, because § 399b

disadvantages political speech—bans on which we must be

“particularly wary.” League of Women Voters, 468 U.S. at 384.11

requires for a law abridging speech to be valid. For provisions like subsections 399b(a)(2) and (a)(3), which undeniably restrict speech, the Supreme

Court has stated that the law must pass the intermediate scrutiny test: the

government must show that the statute “promotes a substantial governmental interest” and “does not burden substantially more speech than necessary to further that interest.” Turner II, 520 U.S. at 213 (internal

quotations omitted). In elaborating the intermediate scrutiny inquiry, the

Court stated that courts must “assure that, in formulating its judgments,

Congress has drawn reasonable inferences based on substantial evidence.”

Id. at 195. The Turner requirement is not a “procedural requirement” to

enactment; rather, it is a substantive test for a provision’s constitutionality

under the First Amendment. 

11Accordingly, even if Judges Noonan and Paez are correct that Discovery Network is not directly applicable because it is a commercial speech

case, see Concurrence at 3956; Dissent at 3965, that would do nothing to

change the outcome because “commercial speech [handbills] can be subject to greater governmental regulation than noncommercial speech [political advertising].” Discovery Network, 507 U.S. at 426. If commercial

speech could not be banned in Discovery Network, perforce political

speech cannot be banned here. Indeed, the fact that we find certain sections of § 399b to be invalid under a standard that would, if anything, be

more favorable to the government reinforces today’s holding. 

3952 MINORITY TELEVISION PROJECT v. FCC
Recall that the newsracks banned in Discovery Network contained commercial handbills.

[24] Applying the Discovery Network standard to § 399b’s

“selective and categorical” content-based bans on speech, we

find no basis for § 399b’s content-based discrimination

against public issue and political advertisements. In fact, it

stands to reason that both public issue and political advertisers, on the one hand, and nonprofits seeking to advertise for

their goods and services, on the other, would generally seek

the largest audience possible. A nonprofit university which

seeks to attract students through television advertisements

would want its advertisements seen by as many potential

applicants as possible; so, too, would a Presidential candidate

generally want his advertisement viewed by the largest possible audience of voters.

Of course, this is a generality: we do not doubt that many

advertisers—political and nonpolitical—sometimes target

niche markets. A nonprofit group seeking to raise funds for

wildlife preservation may choose to spend its money to advertise during nature shows, the better to reach motivated donors.

But so might an evangelical Presidential candidate choose to

spend his money advertising on religious-themed shows in

Iowa in advance of the Iowa caucuses, to increase voter turnout to his advantage. The point is that in general, there is no

reason to think that public issue and political advertisers have

any greater propensity to seek large audiences than do nonprofit advertisers. Yet Minority and other public television

stations may broadcast one type of advertisement but not the

other. That is the kind of picking-and-choosing among different types of speech that Congress may not do, absent evidence

to show that Congress’s favoritism is necessary to serve its

substantial interest.

[25] Thus, because § 399b’s content-based ban on public

issue and political advertisements bears “no relationship

whatsoever to the particular interests that the [government]

MINORITY TELEVISION PROJECT v. FCC 3953
has asserted,” Discovery Network, 507 U.S. at 424, the statute

is not narrowly tailored. Here, as in Discovery Network, there

is no basis for the content-based distinction drawn by § 399b.

Just as newsracks containing “commercial handbills” and

newsracks containing “newspapers” posed an identical threat

to safety and esthetics, so too, for aught that appears—

especially in the Congressional record—do public issue and

political advertisers, on the one hand, and non-political, nonprofit advertisers on the other pose identical threats to displace niche programs on public broadcast television.

The dissent relies on the aforementioned Ozier declaration

for the proposition that “the content and quantity of nonprofit

advertising do not pose the same sort of threat to public

broadcasting’s financial model as other sorts of advertising.”

Dissent at 3967-68. But even if the dissent is correct that nonprofit advertising in general does not pose the sort of threat

that for-profit advertising does, that fact would do nothing to

justify 399b’s content-based speech restriction within the

class of nonprofit advertising. The statute gives Minority the

ability to broadcast an advertisement for Planned Parenthood’s goods and services but does not allow Minority to

broadcast an advertisement stating Planned Parenthood’s view

on a piece of proposed legislation or a political candidate.

That is a crucial content-based distinction—and there is no

evidence at all to support it.12

12The dissent claims that Congress in fact “intended to shield public

programming” from undue “political” influence but not from “advertisements by nonprofit entities.” Dissent at 3966-67. In support of this “Congressional intent,” the dissent cites to not a word of statutory text but only

to a sentence fragment by a single House member contained in the congressional record. Id. (citing 127 Cong. Rec. 13145 (June 22, 1981)

(remarks of Rep. Gonzalez). But “[r]eliance on such isolated fragments of

legislative history in divining the intent of Congress is an exercise fraught

with hazards,” New England Power Co. v. New Hampshire, 455 U.S. 331,

342 (1982), and Representative Gonzalez’s isolated statement cannot

overcome the absence of evidence in the record justifying the contentbased restriction. 

3954 MINORITY TELEVISION PROJECT v. FCC
* * *

[26] The government’s evidence in this case shows only

the size and effect of one class of advertising: traditional commercial advertising. That is the content of speech proscribed

in subsection § 399b(a)(1), which proscription we today hold

passes “intermediate scrutiny” and which we uphold. But the

government cannot point to evidence that its fear of harm to

public television that would come from allowing stations to

air public issue and political advertisements is “real, not

merely conjectural,” much less that the portions of the statute

which ban such political and public issue advertisements “alleviate those harms in a direct and material way.” Turner I,

512 U.S. at 664. Thus, we strike down as unconstitutional

subsections 399b(a)(2) and (a)(3).

Of course, following today’s decision, Congress is free to

“try again.” If there truly is evidence that broadcast of public

issue and political advertisements would cause substantial

harm—that their broadcast would change program content as

directly and substantially as would for-profits’ advertising—

Congress could compile a record to show as much, and perhaps pass a law restricting such speech. That record would

contain evidence, not mere conjecture and anecdote. It is evidence of harm to a substantial governmental interest—not

mere conjecture—which the First Amendment requires. See

Turner II, 520 U.S. at 211.

The district court’s grant of summary judgment to the government is AFFIRMED in part, and REVERSED in part.

We REMAND to the district court with instructions to enter

an order granting summary judgment to Minority Television

Project as to § 399b(a)(2) and § 399b(a)(3), and for further

proceedings consistent with this opinion.13

13Because Minority was fined $10,000 for violations of § 399b(a)(1)—

which survives our decision today—we affirm the district court’s denial

of reimbursement. Moreover, we express no opinion as to whether subsection 399b(a)(1) would withstand strict scrutiny analysis. 

MINORITY TELEVISION PROJECT v. FCC 3955
NOONAN, Circuit Judge, concurring in the judgment:

Broadcast speech is protected by the First Amendment, but

it has characteristics that distinguish it from most other forms

of speech. Intermediate scrutiny must be applied to this modern medium unknown to the framers of the Constitution. FCC

v. League of Women Voters, 468 U.S. 364, 380 (1984). Broadcast speech, as it now exists, came into existence by the allocation by the government of space on the spectrum of

frequencies for broadcasting. It is therefore licensed by the

government. Of course, the government might have abstained

from allocating frequencies, as it did before 1927. See Red

Lion Broad. Co. v. FCC, 395 U.S. 367, 375-76 (1969). That

road was not followed. Without effective challenge, the government took charge and rationed the frequencies. Broadcast

television, as it exists today, exists as it does because the government has been a shaper of it. Speech by license of the government presents a formidable paradox in application of the

First Amendment.

The appellant is licensed by the government as a not-forprofit broadcaster. It is authorized by license pursuant to 47

C.F.R. § 73.621(a), a regulation specifying that a license may

be given to a “nonprofit educational organization upon a

showing that the proposed stations will be used primarily to

serve the educational needs of the community; for the

advancement of educational programs; and to furnish a nonprofit and noncommercial broadcast television service.” The

nature of licensed broadcasting makes it inappropriate to draw

guidance from a case such as City of Cincinnati v. Discovery

Network, 307 U.S. 410 (1993), invalidating a city ordinance

governing news racks. 

When 47 U.S.C. § 399 was enacted, there was no evidence

before Congress as to the impact of political speech on public

broadcasting because no such speech had been permitted.

What Congress had before it were educated guesses by persons familiar with the media. When this case began in 2006,

3956 MINORITY TELEVISION PROJECT v. FCC
the government did not produce any more evidence, because

no more evidence existed. 

Legislatures may often have to act on the basis of prediction rather than on the basis of evidence. The conduct of a war

on poverty, or of an actual war, for example, may depend on

such legislative guesswork. As I understand the teaching of

the Supreme Court, however, a restriction on political speech,

the “highest rung of the hierarchy of First Amendment values,” League of Women Voters, 468 U.S. at 381, must normally be based on evidence of harm to a substantial

governmental interest. Id. at 391; Red Lion, 395 U.S. at 393.

Such evidence has not been provided to Congress. Accordingly, the ban on speech is an unconstitutional abridgement of

the First Amendment. 

This requirement was dropped by the plurality in Turner II

relying on evidence introduced on remand to the district court

— evidence obviously not before Congress when it enacted

the statute in question. See Turner Broad. Sys., Inc. v. FCC,

520 U.S. 180, 200 (1997) (plurality opinion). It is unclear

whether this example justifies other courts in not looking for

evidence before Congress or in relying not on evidence but

predictions. I believe that we are still bound by League of

Women Voters, supra.

Citizens United v. FEC, 130 S. Ct. 876 (2010), decided a

different question and is therefore not controlling here. It is,

however, relevant in affording the view of governmental control of speech now taken by the United States Supreme Court.

For example, Justice Kennedy writing for the Court observed:

While some means of communication may be less

effective than others at influencing the public in different contexts, any effort by the Judiciary to decide

which means of communications are to be preferred

for the particular type of message and speaker would

raise questions as to the courts’ own lawful authorMINORITY TELEVISION PROJECT v. FCC 3957
ity. Substantial questions would arise if courts were

to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or

outdated by technologies that are in rapid flux. Id. at

890. 

The recognition of the “rapid flux” in the technologies and the recognition that “substantial questions

would arise” if the courts favored or disfavored a

particular means of speech suggest the sensitivity of

the Court to the changing field of communication by

television. 

Justice Kennedy went on to state:

Courts, too, are bound by the First Amendment. We

must decline to draw, and then redraw, constitutional

lines based on the particular media or technology

used to disseminate political speech from a particular

speaker. Id. at 891.

This passage’s negative reference to basing “constitutional

lines” on “particular media” could be read as embracing the

special constitutional lines now governing broadcast media. 

With the rapid flux of technologies transmitting television,

there have come new forms of television that do not require

use of the narrow spectrum employed by broadcast television.

These new forms — cable, satellite, cell phone, the Internet

and the iPad — have introduced a variety of ways of communicating on television and call at least for a new look at the

government’s substantial role in licensing and regulating

speech on broadcast television.

In short, in this delicate and difficult field of rapid change,

it would be hard to believe that the restrictions on political

speech established by the statute over thirty years ago are con3958 MINORITY TELEVISION PROJECT v. FCC
stitutionally valid even if they had met constitutional criteria

when they were published. 

Minority TV also challenges as “vague” the prohibition of

§ 399 of any advertisement intended “to promote any service,

facility or product offered by any person who is engaged in

offering such offering for profit.” The words are clear enough.

What Minority TV appears to be objecting to is the application of the statute as confusing or inconsistent.

As a viewer of Jim Lehrer NewsHour and its successor, I

have seen announcements that to my mind are ads. For example, I have viewed Charles Schwab’s message, “Talk to

Chuck” — it is not about Chuck’s golf game. I have viewed

Chevron’s “We have more in common than you think” — it

appears to me to promote Chevron’s business by asking me

to identify with its efforts to improve the environment. I have

watched as a pest control company has displayed the power

of its techniques to eliminate a bug, a promotion of its services, one would suppose. But all of the above would be relevant on an as-applied challenge. Such a challenge must be

brought as original matter in the court of appeals. Consequently, on this point, too, I concur in the result reached by

Judge Bea.

PAEZ, Circuit Judge, dissenting:

I agree with Judge Bea’s conclusions, contained in Part III

of his opinion, that substantial evidence supports Congress’s

determination that advertising by for-profit entities on public

broadcast stations poses a real harm, and that 47 U.S.C.

§ 399b(a)(1) does not burden substantially more speech than

necessary to further the government’s legitimate interest.

However, as I explain in greater detail below, I agree neither

with Judge Bea’s analytical approach, nor with his conclusion

that §§ 399b(a)(2) and (3) impose an unconstitutional,

MINORITY TELEVISION PROJECT v. FCC 3959
content-based restriction on speech. Accordingly, I respectfully dissent.1

For almost sixty years, noncommercial public broadcasters

have been effectively insulated from the lure of paid advertising. The court’s judgment will disrupt this policy and could

jeopardize the future of public broadcasting. I am not persuaded that the First Amendment mandates such an outcome.

In my view, §§ 399(a)(2) and (3) satisfy the scrutiny standard

set forth in F.C.C. v. League of Women Voters, 468 U.S. 364

(1984). I therefore disagree with Judge Bea’s heavy reliance

on a commercial speech case, City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410 (1993), to impose an unprecedented and unwarranted burden of proof on the government.

I also take issue with Judge Bea’s contention that Turner

Broad. Sys., Inc. v. F.C.C. (“Turner I”), 512 U.S. 622 (1994)

and Turner Broad. Sys., Inc. v. F.C.C. (“Turner II”), 520 U.S.

180 (1997) require the government to prove its case by presenting “ ‘[s]ubstantial evidence[,]’ [which] must include

‘substantial evidence in the record before Congress’ at the

time of the statute’s enaction.” Op. at 3938 (quoting Turner

II, 520 U.S. at 211) (internal citation omitted). Because

§§ 399b(a)(2) and (3) are narrowly tailored provisions that

fulfill the government’s substantial interest in noncommercial

public broadcasting, I would affirm the district court’s order

granting summary judgment to the FCC.

I.

I agree with both Judge Bea and Judge Noonan that

because § 399b regulates broadcast media, the broadcastspecific version of intermediate scrutiny2

 should guide our

1

I concur, however, in the Memorandum disposition filed simultaneously with this opinion. 

2

It is important to distinguish the broadcast-specific version of intermediate scrutiny from other scrutiny standards that are used in First Amendment cases. Parts of Judge Bea’s opinion inappropriately follow the

3960 MINORITY TELEVISION PROJECT v. FCC
analysis of this case. As Judge Bea’s opinion notes, a regulation will survive such scrutiny if it is “narrowly tailored to

further a substantial government interest.” League of Women

Voters, 468 U.S. at 380 (cited at Op. 3935).3 As noted, I also

agree with Judge Bea’s twin conclusions that the government

has a substantial interest in noncommercial public broadcasting and that § 399b furthers this interest. I differ from both

Judge Bea and Judge Noonan in my conclusion that

§§ 399b(a)(2) and (3) are sufficiently tailored to survive

broadcast scrutiny. Judge Bea’s analysis draws from cases

involving non-broadcast, content-neutral, and commercial

speech restrictions. I disagree with this approach, and would

intermediate scrutiny framework that the Supreme Court applied in Turner

I and Turner II. The standard outlined in the Turner cases—which

involved First Amendment challenges to content-neutral, non-broadcast

regulations—is not relevant here. In light of the unique nature of broadcast

speech, for almost eighty years the Supreme Court has refused to apply the

same level of First Amendment scrutiny to broadcast regulations that it

has applied to regulations governing, for example, newspapers or magazines. See League of Women Voters, 468 U.S. at 376-77 (“Were a similar

ban . . . applied to newspapers and magazines, we would not hesitate to

strike it down as violative of the First Amendment.”); see also National

Broad. Co. v. U.S., 319 U.S. 190, 226-27 (1943); Columbia Broad. Sys.,

Inc. v. Democratic Nat. Comm., 412 U.S. 94, 101 (1973); F.C.C. v. Pacifica Foundation, 438 U.S. 725, 748 (1978). Because § 399b is a contentbased regulation of broadcast media, the intermediate broadcast scrutiny

test from League of Women Voters provides the correct framework for

evaluating Minority’s First Amendment challenge to §§ 399b(a)(2) and

(3). Because Discovery Network, Turner I, and Turner II involved nonbroadcast regulations, I do not share Judge Bea’s view that these cases

provide “additional elaboration” of the standard outlined in League of

Women Voters. Op. at 3934; see also Op. at 3937-40. 

3There are two key differences between strict scrutiny and intermediate

broadcast scrutiny. First, the government interest need only be “substantial,” rather than “compelling,” to survive intermediate broadcast scrutiny.

Second, the “narrowly tailored” requirement of intermediate broadcast

scrutiny is more flexible than the corresponding requirement for strict

scrutiny. Determining the exact meaning of “narrowly tailored” is a difficult exercise because the Supreme Court has not explicitly defined this

term in its broadcast cases. 

MINORITY TELEVISION PROJECT v. FCC 3961
decide this case by hewing closely to League of Women

Voters, which is directly on point.

From League of Women Voters we can derive several principles to guide our analysis of whether §§ 399b(a)(2) and (3)

are narrowly tailored. In League of Women Voters, the

Supreme Court explained that a broadcasting regulation is

narrowly tailored when it is not “manifest[ly] imprecis[e],”

468 U.S. at 392, when it is not patently overinclusive or

underinclusive, id. at 396, and when “less restrictive means”

of furthering the government’s interest are not “readily available,” id. at 395. Moreover, if a content-based broadcasting

regulation “far exceeds” what is necessary to satisfy the government’s interest, then it is not narrowly tailored.” Id. at 395.

In my view, §§ 399b(a)(2) and (3) satisfy these requirements.

First, the law is not “patent[ly] overinclusive[ ].” Id. at 396.

On the contrary, the legislative history of § 399b demonstrates

that the law was crafted to restrict the least possible amount

of speech. Before the passage of § 399b, public broadcasters

were prohibited from airing all advertisements. See, e.g., 17

Fed. Reg. 4062 (1952) (47 C.F.R. § 3.621(d), (e)) (later

moved to 47 C.F.R. § 73.621(d), (e)); In the Matter of

Comm’n Policy Concerning the Noncommercial Nature of

Educ. Broad. Stations (“Comm’n Policy I”), 86 F.C.C. 2d

141, 142 (1981) (discussing the “existing proscription against

all promotion of products and services) (emphasis in original). The Public Broadcast Amendments Act of 1981, codified in 47 U.S.C. §§ 399a and 399b, modified these

restrictions to enhance donor acknowledgments, to allow public broadcasters to air any content (including advertisements)

for which consideration is not received, and to allow nonprofit organizations to advertise services, products, and facilities. In light of these modifications, § 399b is less restrictive

of public broadcasters’ First Amendment rights than the statute at issue in League of Women Voters, which broadly prohibited all editorial content from being broadcast. In contrast

to the statute at issue in League of Women Voters, § 399b

3962 MINORITY TELEVISION PROJECT v. FCC
gives broadcasters programming flexibility while still insulating the stations from the “commercial market pressures” that

result from reliance on advertising revenue. Comm’n Policy I,

86 F.C.C. 2d at 142. Thus, § 399b is not overinclusive—at

least not in my view—nor does it “far exceed[ ]” what is necessary to satisfy the government’s interest in promoting noncommercial educational broadcasting. See League of Women

Voters, 468 U.S. at 395.4

Second, § 399b is not underinclusive. In League of Women

Voters, the Court held that the statute in question was

underinclusive because it barred editorializing but did not bar

stations from choosing to air partisan content. 468 U.S. at

396-97. Considering that the government’s purported interest

was to prevent the broadcast of controversial or partisan opinions, the law was minimally effective. Id. Thus, the Court

held that the underinclusive law, which “provide[d] only ineffective or remote support for the government’s purpose,” was

not valid under the First Amendment. Id. (quoting Central

Hudson Gas & Electric Corp. v. Public Service Comm’n of

N.Y., 447 U.S. 557, 564 (1980)). 

Unlike the underinclusive statute at issue in League of

Women Voters, Congress’s decision to allow non-profit advertising on public broadcasts has not rendered § 399b ineffective. According to Stanford Professor Roger G. Noll, a

leading scholar on the economics of television, § 399b’s ban

on paid commercial advertisements, political advertisements,

and issue advertisements has effectively insulated public

4

I understand Judge Bea’s argument to be that he defers to Congress’s

judgment that market pressure poses a danger to public broadcasting, yet

he draws a distinction between the type of market pressure which forprofit and political or public issue advertisers will exert. Op. at 3946-47,

3948-49. Such a distinction is untenable in light of the tremendous sums

spent on political campaign advertisements—$2.2 billion in 2008—which

represent a considerable source of potential revenue by any measure.

Judge Bea reaches his conclusion that § 399b is overinclusive only by discounting this evidence. See Op. at 3948-49. 

MINORITY TELEVISION PROJECT v. FCC 3963
broadcasting from the market failure problem of commercial

broadcasting. Lance Ozier, a senior officer of the WGBH

Educational Foundation,5 similarly explained that advertising

by non-profit entities “do[es] not present the same danger” to

public television as for-profit advertising. Unlike commercial,

political, and issue advertisements, non-profit announcements

— according to Ozier—are viewed as “consistent with the

public education mission of public television,” and therefore

do not threaten other funding sources. Particularly, Ozier

explains that the presence of just a small number of non-profit

advertisers creates only a minimal risk that stations will seek

to boost viewership in order to increase advertising sales.

Non-profit advertising sales, for example, did not even register on Professor Noll’s breakdown of public television revenue sources. As an additional anecdote, Minority has

produced just one instance in which a non-profit entity purchased an announcement on a public broadcast station. In

short, advertisements by non-profit organizations do not

appear to foster the market failure problem of public broadcasting that Congress sought to avoid in enacting § 399b.6

Thus, I would conclude that §§ 399b(a)(2) and (3) are not

unconstitutionally underinclusive. 

Third, there appear to be no “less restrictive means” that

are “readily available” to further the government’s interest in

promoting public broadcasting. Neither Judge Bea nor Judge

Noonan offers any alternative to the current regime, and certainly not one that is “less restrictive” and “readily available.”

Similarly, Professor Noll’s report lays out some plausible

alternatives to § 399b, but concludes that these alternatives

are not reasonable. 

5WGBH is the largest producer of primetime and online programming

for the Public Broadcasting Service (PBS) and is also a major producer of

national programs for many public radio stations. 

6

I believe that this evidence belies Judge Bea’s glib contention that

“there is no reason to think that public issue and political advertisers have

any greater propensity to seek large audiences than do nonprofit advertisers.” Op. at 3953. 

3964 MINORITY TELEVISION PROJECT v. FCC
Thus, § 399b is not “manifest[ly] imprecis[e],” League of

Women Voters, 467 U.S. at 392, nor is it patently overinclusive or underinclusive, id. at 396. Nor are there “less restrictive means” to § 399b that are “readily available.” Id. at 395.

Accordingly, I would hold that § 399b satisfies the scrutiny

test laid out in League of Women Voters and affirm the district

court’s grant of summary judgment to the FCC.

II.

Judge Bea’s opinion heavily relies on an inapposite commercial speech case, City of Cincinnati v. Discovery Network,

507 U.S. 410 (1993), to strike down §§ 399b(a)(2) and (3). In

my view, Judge Bea’s reliance on, and interpretation of, Discovery Network are flawed for three reasons.

First, Judge Bea relies on Discovery Network for the proposition that League of Women Voters’s narrow tailoring

requirement demands that the government prove that the

speech prohibited by §§ 399b(a)(2) and (3) poses a greater

threat to the government’s interest than the speech allowed.

Op. at 3941. Because Discovery Network involved nonbroadcast commercial speech, it has little relevance to this

case. Discovery Network neither interpreted nor applied the

narrow tailoring requirement of intermediate broadcast scrutiny, so Judge Bea’s reliance on Discovery Network is

unfounded.

Second, Judge Bea’s initial mistake of relying on Discovery

Network is compounded by his misreading of the case. Judge

Bea states that under Discovery Network, “the government

must prove that the speech banned . . . poses a greater threat

than the speech permitted.” Op. at 3941 (emphasis in original). This is not a fair reading of Discovery Network. The portion of Discovery Network cited by Judge Bea contains the

Court’s observation that all newsracks, whether containing

commercial newspaper or noncommercial handbills, were

“equally unattractive.” 507 U.S. at 425. Accordingly, the

MINORITY TELEVISION PROJECT v. FCC 3965
Court in Discovery Network found that the law in question

was not effective at addressing the government’s interest in

avoiding visual blight on the streets of Cincinnati. Id. at 428.

I therefore read Discovery Network to support the accepted

notion that a regulation burdening speech cannot be underinclusive to the point of inefficacy. Accord League of Women

Voters, 468 U.S. at 397. I do not believe, however, that Discovery Network stands for the broad proposition that the government must prove that all banned speech is more harmful

than all allowed speech. This holding imposes a burden on the

government that surpasses even the exacting standard of strict

scrutiny. In order to meet Judge Bea’s heavy burden, Congress would have to ban either all advertisements or no advertisements because no regulation that creates categorical

distinctions could plausibly encompass only the most harmful

content imaginable.7

Third, even if Discovery Network were applicable to this

case, which I believe it is not, I disagree with Judge Bea’s

unsubstantiated conclusion that public issue and political

advertisements “pose identical threats” to the unique programming of public broadcasting as non-profit advertisements. Op. at 3954. Since Congress intended to shield public

programming from “special interests—be they commercial,

political, or religious,” this proposition holds no merit. 127

Cong. Rec. 13145 (June 22, 1981) (remarks of Rep. Gonzalez) (emphasis added). Political ads run directly counter to

Congress’s interest in barring political interest groups (and

their advertising dollars) from affecting programming decisions. There was no similar concern by Congress regarding

7

Judge Bea’s approach also flatly contradicts later commercial speech

cases. See, e.g., Greater New Orleans Broad. Ass’n, Inc. v. United States,

527 U.S. 173, 188 (1999) (“The Government is not required to employ the

least restrictive means conceivable.”); see also id. (stating that narrow tailoring requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is

in proportion to the interest served”) (quoting Board of Trustees of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). 

3966 MINORITY TELEVISION PROJECT v. FCC
advertisements by non-profit entities. We are not entitled to

simply dismiss congressional intent on this matter. See Turner

II, 520 U.S. at 196 (“[D]eference must be accorded to [congressional] findings as to the harm to be avoided and to the

remedial measures adopted for that end, lest [the courts]

infringe on traditional legislative authority to make predictive

judgments when enacting nationwide regulatory policy.”).

Moreover, the government has produced evidence that

political advertising presents a greater harm to public broadcasting than non-profit advertising. As described above, nonprofit announcements on public broadcasts are virtually negligible, and could easily be swamped by the very large market

for political advertising. Congress could have reasonably

feared the corrosive impact of advertising in general, but

viewed non-profit advertisements as harmless to the public

interest mission of public broadcasting.8 In addition, while

Congress has long sought to shield public broadcasting from

political influences, there is no evidence that Congress has

viewed non-profit entities as a harmful outside influence. As

Ozier’s declaration makes clear, the content and quantity of

non-profit advertising do not pose the same sort of threat to

8

It bears repeating that $2.2 billion represents a large market by any

measure. Moreover, Judge Bea’s analysis of the potential effects of political advertising on the “nature and prevalence” of public television’s

unique programming, Op. at 3948, examines only one side of the coin.

While he may be correct that a political candidate cartoon is a laughable

prospect, Congress could well have feared that market pressures would

entice public television stations to limit children’s and other educational

programming in favor of more lucrative advertising. Indeed, as Judge Bea

acknowledges, “[e]specially in an election season, we see how a news

broadcaster may be tempted to alter the content of its public affairs programming if it thinks it can garner additional advertising dollars from one

or another campaign, SuperPAC, or advocacy group by doing so.” Op. at

3949. In light of the record evidence supporting such a conclusion, I find

Congress’s determination infinitely reasonable. 

MINORITY TELEVISION PROJECT v. FCC 3967
public broadcasting’s financial model as other sorts of advertisements.9

III.

Finally, Judge Bea errs in his narrow view of what evidence we may consider when determining the constitutionality of § 399b. In my view, Judge Bea misreads Turner II to

conclude that the government must prove its case by presenting “ ‘[s]ubstantial evidence[,]’ [which] must include ‘substantial evidence in the record before Congress’ at the time of

the statute’s enaction.” Op. at 3938 (quoting Turner II, 520

U.S. at 211) (internal citation omitted). I disagree with Judge

Bea’s view that we may not consider evidence supporting the

constitutionality of §§ 399b(a)(2) and (3) unless some of that

evidence was present in the record before Congress at the

time of the statute’s enactment.

The Constitution imposes only two procedural requirements that Congress must follow in enacting laws: bicameralism and presentment. In INS v. Chadha, 462 U.S. 919, 951

(1983), the Court explained: “It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7 represents the

Framers’ decision that the legislative power of the Federal

government can be exercised in accord with a single, finely

wrought and exhaustively considered, procedure.” See also

Sable Comm’n of California, Inc. v. F.C.C., 492 U.S. 115,

133 (1989) (Scalia, J., concurring) (“Neither due process nor

the First Amendment requires legislation to be supported by

committee reports, floor debates, or even consideration, but

only by a vote.”). Judge Bea’s conclusion that the constitutionality of a federal law might turn on the quantity and qual9Specifically, Ozier explains in his declaration that “WGBH, like other

noncommercial educational stations, currently accepts announcements

from not-for-profit entities . . . These announcements do not present the

same danger to public television’s other funding sources, or its cost structure, as would for-profit advertising . . .” 

3968 MINORITY TELEVISION PROJECT v. FCC
ity of evidence before Congress at the time of enactment

violates this fundamental principle by effectively imposing a

procedural requirement on Congress’s legislative process.

Judge Bea acknowledges that there is no requirement of a

“particular type of evidence in the record before Congress,”

Op. at 3946, and rightly declines Minority’s request to weigh

the “quality of the evidence” before Congress, id at 3946. Yet

Judge Bea repeatedly characterizes the government’s burden

as requiring a showing of “ ‘[s]ubstantial evidence[,]’ [which]

must include ‘substantial evidence in the record before Congress’ at the time of the statute’s enaction” to support § 399b.

See Op. at 3940; see also Op. at 3944, 3946, 3947, 3949.

Judge Bea’s characterization misrepresents one sentence

from Turner II. In reading the Turner cases together, it is

apparent that the Supreme Court did not intend for lower

courts to be restricted to the record before Congress, as an

antecedent and necessary prerequisite to the consideration of

other evidence, in assessing the constitutionality of federal

laws. In Turner I, the Court expressly recognized that the parties might introduce additional evidence on remand that was

not contained in the record before Congress at the time of the

challenged law’s enactment. In remanding the case for further

factual development, the Court stated that “[w]ithout a more

substantial elaboration in the District Court of the predictive

or historical evidence upon which Congress relied, or the

introduction of some additional evidence . . . we cannot determine whether the threat to broadcast television is real enough

to overcome the challenge to the provisions made by these

appellants.” Id. at 667 (emphasis added). Three years later, in

Turner II, the Court considered evidence that was not contained in the record before Congress at the time of the challenged law’s enactment. See generally Turner II, 520 U.S. at

200-12 (repeatedly referencing expert declarations that were

not part of the congressional record at the time of the challenged law’s passage). In outlining its task, the Court

explained, “[w]e examine first the evidence before Congress

MINORITY TELEVISION PROJECT v. FCC 3969
and then the further evidence presented to the District Court

on remand to supplement the congressional determination.”

Id. at 196 (emphasis added). 

Thus, I read the Turner cases as identifying two sources of

evidence upon which a court may rely in assessing the constitutionality of a federal law: the record before Congress at the

time of enactment, and additional evidence presented in the

district court. To the extent that a district court considers evidence in the record before Congress at the time of enactment,

it must defer to Congress’s reasonable judgments. Accordingly, the Court explained that for purposes of considering

evidence from the congressional record, “[t]he question is not

whether Congress, as an objective matter, was correct to

determine [that the challenged law] was necessary to [further

the government’s interest]. Rather, the question is whether the

legislative conclusion was reasonable and supported by substantial evidence in the record before Congress.” 520 U.S.

211. I do not interpret this sentence to mean that courts must

locate evidence in the record before Congress at the time of

the statute’s enactment which supports Congress’s legislative

determination before it may consider additional evidence

regarding the statute’s constitutionality. I could not uncover

any case in which a court took this extreme approach, and I

would not do so here.

Judge Bea’s contention that his reading of Turner II

imposes a substantive rather than a procedural requirement on

the legislative process, Op. at 3951-52, n. 10, does not alter

my conclusion. His approach imposes a procedural requirement to the passage of a constitutional statute. Otherwise

stated, Judge Bea’s analysis permits the constitutionality of a

statute to rest on Congress’s attention to creating a sufficiently detailed record prior to the statute’s enactment, rather

than on the practical force and effect of the statute at the time

it is challenged. I do not believe this additional requirement

finds support in the Constitution. See Chadha, 462 U.S. at

951.

3970 MINORITY TELEVISION PROJECT v. FCC
IV.

For the foregoing reasons, I would affirm the district

court’s order granting the FCC’s motion for summary judgment and denying Minority’s motion for summary judgment.

MINORITY TELEVISION PROJECT v. FCC 3971