FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MINORITY TELEVISION PROJECT,

INC.,

Plaintiff-Appellant,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Defendants-Appellees,

and

LINCOLN BROADCASTING COMPANY,

Intervenor.

No. 09-17311

D.C. No.

3:06-cv-02699-

EDL

OPINION

Appeal from the United States District Court

for the Northern District of California

Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted En Banc

March 19, 2013—San Francisco, California

Filed December 2, 2013

Before: Alex Kozinski, Chief Judge, and John T. Noonan,

Barry G. Silverman, M. Margaret McKeown, Kim McLane

Wardlaw, William A. Fletcher, Ronald M. Gould, Marsha

S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan

and Andrew D. Hurwitz, Circuit Judges.
2 MINORITY TELEVISION PROJECT V. FCC

Opinion by Judge McKeown;

Partial Concurrence and Partial Dissent by Judge Callahan;

Dissent by Chief Judge Kozinski

SUMMARY*

Public Television

The en banc court affirmed the district court’s summary

judgment in favor of the government in an action brought by

a public television broadcaster challenging, on First

Amendment grounds, 47 U.S.C. § 399b, which prohibits

public radio and television stations from transmitting paid

advertisements for for-profit entities, issues of public

importance or interest, and political candidates. 

Applying intermediate scrutiny, the court upheld the

advertising ban as constitutional. The panel concluded that

substantial evidence before Congress supported the

conclusion that the advertising prohibited by § 399b posed a

threat to the noncommercial, educational nature of

noncommercial educational programming and that additional

evidence bore out Congress’s predictive judgment in enacting

§ 399b. The court held that the government has a substantial

interest in imposing advertising restrictions in order to

preserve the essence of public broadcast programming. The

court further held that § 399b’s restrictions were narrowly

tailored to the harms Congress sought to prevent and that the

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MINORITY TELEVISION PROJECT V. FCC 3

restrictions left untouched speech that did not undermine the

goals of the statute.

The court rejected the assertion that the § 399b was

overinclusive because it prohibited political and issue

advertising and underlinclusive because it permitted

advertising by non-profit entities. Finally, the court affirmed

the district court’s dismissal of the as-applied challenges to

§ 399b and its challenge to the related regulation, 47 C.F.R.

§ 73.621(e), on the grounds that jurisdiction over challenges

to Federal Communication Commission orders lies

exclusively in the court of appeals; as such, federal district

courts lack jurisdiction over appeals of such orders. 

Concurring and dissenting, Judge Callahan stated that she

concurred in the majority’s opinion only insofar as it upholds

47 U.S.C. § 339(b)’s prohibition against paid advertisements

by for-profit entities. She dissented from the majority’s

acceptance of § 339(b)’s prohibition of advertisements on

issues of public importance or interest and for political

candidates.

Dissenting, Chief Judge Kozinski, with whom Judge

Noonan joined, stated that he would strike down as

unconstitutional the statute and corresponding regulations

that prohibit public broadcast stations from carrying

commercial, political or issue advertisements. Chief Judge

Kozinski stated that the evidence presented by the

government in support of these speech restrictions doesn’t

pass muster under any kind of serious scrutiny, and that even

if intermediate scrutiny applies there is simply not enough

there to satisfy a skeptical mind that the reasons advanced are

rational, let alone substantial.
4 MINORITY TELEVISION PROJECT V. FCC

COUNSEL

Walter Elmer Diercks (argued), Rubin, Winston, Diercks,

Harris & Cooke, LLP, Washington, D.C.; John L. Fitzgerald,

Pinnacle Law Group, San Francisco, California, for PlaintiffAppellant.

Mark B. Stern (argued) and Samantha L. Chaifetz, Attorneys,

Appellate Staff, United States Department of Justice, Civil

Division, Washington, D.C.; Joseph P. Russoniello, United

States Attorney; Tony West, Assistant Attorney General;

Austin C. Schlick, General Counsel, Jacob M. Lewis, Acting

Deputy General Counsel, Joel Marcus, Attorney, and

Maureen K. Flood, Attorney, Federal Communications

Commission, Washington, D.C., for Defendants-Appellees.

Joyce Slocum and Gregory Allan Lewis, National Public

Radio, Inc., Washington, D.C.; Katherine Lauderdale and

Thomas Rosen, Public Broadcasting Service, Arlington,

Virginia, for Amici Curiae National Public Radio, Inc., and

Public Broadcasting Service.

OPINION

McKEOWN, Circuit Judge:

Public television—a fixture of American life for

decades—has showcased Masterpiece Theater, PBS

NewsHour, children’s programs such as Sesame Street and

Curious George, and many more audience favorites. 

The hallmark of public broadcasting has been a longstanding restriction on paid advertising to minimize

commercialization. In a classic case of “follow the money,”
MINORITY TELEVISION PROJECT V. FCC 5

Congress recognized that advertising would change the

character of public broadcast programming and undermine

the intended distinction between commercial and

noncommercial broadcasting.

Public broadcast radio and television stations are

regulated by federal statute. Under 47 U.S.C. § 399b, public

stations are prohibited from transmitting paid advertisements

for for-profit entities, issues of public importance or interest,

and political candidates. These restrictions were adopted to

minimize commercialization of public broadcast stations, also

known as noncommercial educational (“NCE”) stations

because they 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.

Minority Television Project (“Minority TV”), a public

television broadcaster, challenges the advertising restrictions

as facially unconstitutional under the First Amendment. 

Applying intermediate scrutiny, as counseled by the Supreme

Court in FCC v. League of Women Voters, 468 U.S. 364

(1984), we uphold the advertising ban as constitutional. We

also affirm the district court’s dismissal of Minority TV’s asapplied challenges to § 399b and its challenge to the related

regulation, 47 C.F.R. § 73.621(e).

BACKGROUND

I. NONCOMMERCIAL EDUCATIONAL STATIONS

For three-quarters of a century, the Federal

Communications Commission (“FCC”) has set aside

broadcasting channels for noncommercial educational
6 MINORITY TELEVISION PROJECT V. FCC

stations. See 3 Fed. Reg. 364 (Feb. 9, 1938) (reserving

channels for NCE FM radio stations); Sixth Report & Order,

41 F.C.C. 148, 158–59 (1952) (reserving channels for NCE

television stations); see also 47 U.S.C. § 303 (a)–(b)

(authorizing the FCC to classify radio stations and

“[p]rescribe the nature of the service to be rendered by each

class of licensed stations”). The FCC explained that it was

reserving a portion of the broadcast spectrum for NCE

television stations because of “the important contributions

which noncommercial educational television stations can

make in educating the people both in school—at all

levels—and also the adult public,” and the “high quality type

of programming” available on NCE stations—“programming

of an entirely different character from that available on most

commercial stations.” Third Notice of Further Proposed

Rulemaking, 16 Fed. Reg. 3072, 3079 (1951).

From the start, the FCC recognized that allowing NCE

stations to “operate in substantially the same manner as

commercial applicants” would not further its goal of ensuring

high quality educational programming. 41 F.C.C. at 166

(1952). Initially, NCE stations were prohibited from airing

any promotional content—even if it was unpaid—and were

only permitted to identify program underwriters by name. 

See 17 Fed. Reg. 4062 (1952); Commission Policy

Concerning the Noncommercial Nature of Educational

Broadcast Stations, 86 F.C.C. 2d 141, 142, 154 (1981).

In response to concerns that this restriction was broader

than necessary to achieve its purpose, the FCC embarked on

an extensive notice and comment proceeding between 1978

and 1981. See 86 F.C.C. 2d at 141; Commission Policy

Concerning the Noncommercial Nature of Educational

Broadcast Stations, 90 F.C.C. 2d 895, 909 (1982). The FCC
MINORITY TELEVISION PROJECT V. FCC 7

undertook this effort “with an eye toward striking a

reasonable balance between the financial needs of such

stations and their obligation to provide an essentially

noncommercial broadcast service.” 86 F.C.C. 2d at 141. In

crafting new rules, the FCC noted that its “interest in creating

a ‘noncommercial’ service has been to remove the

programming decisions of public broadcasters from the

normal kinds of commercial market pressures under which

broadcasters in the unreserved spectrum usually operate.” Id.

at 142. Cognizant of First Amendment concerns, the FCC

stated that it was adopting “the minimum regulatory structure

that preserves a reasonable distinction between commercial

and noncommercial broadcasting.” Id. at 144. At the end of

lengthy deliberation, the FCC in 1981 set out a new,

liberalized broadcast advertising framework. Id. Later that

year, after two days of hearings,1 Congress essentially

codified the FCC’s new framework in 47 U.S.C. §§ 399a and

399b.2

1 Hearings before the Subcomm. on Telecomms, Consumer Protection,

and Finance of the H. Comm. on Energy and Commerce on H.R. 3238 and

H.R. 2774, 97th Cong. (1981) (hereinafter “H. Hgs.”). H.R. 3238 (“The

Public BroadcastingAmendments Act of 1981”) was passed by the House,

but § 399a and § 399b, along with the rest of the Public Broadcasting

Amendments Act of 1981, were enacted as part of the Omnibus Budget

Reconciliation Act of 1981. Pub. L. No. 97-35, 95 Stat. 357 (1981). We

look to the legislative history of H.R. 3238 for the record before Congress

when it enacted § 399b.

2 There were two minor differences between the FCC’s framework and

the enacted statutes. The FCC prohibited all goods and services

advertising for which consideration was received, but § 399b prohibits

such advertising by for-profit entities only. Section 399a also differs

somewhat from the FCC’s treatment of donor acknowledgments. 

90 F.C.C. 2d at 901–02.
8 MINORITY TELEVISION PROJECT V. FCC

Section 399b—the heart of this case—prohibits paid

advertising, except for advertising for goods and services

offered by non-profit organizations. An “advertisement” is

defined as material transmitted in exchange for remuneration

that 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.

§ 399b(a). Section 399b allows the airing of promotional

content for which consideration is not received. Section

399a, which is not at issue here, permits the use of nonpromotional identifying information in donor

acknowledgments (for example, logograms and location

information). This scheme has been the law for more than 30

years.

II. MINORITY TV PROCEEDINGS

Minority TV is the licensee of a noncommercial

educational television station in San Francisco subject to the

advertising restrictions in 47 U.S.C. § 399b and 47 C.F.R.

§ 73.621(e). After another broadcaster complained to the

FCC about Minority TV’s underwriting announcements, the

FCC commenced a proceeding against Minority TV. The

FCC’s Enforcement Bureau found that Minority TV had
MINORITY TELEVISION PROJECT V. FCC 9

broadcast announcements that violated § 399b and

§ 73.621(e) more than 1,911 times, and issued a Notice of

Apparent Liability for Forfeiture in the amount of $10,000. 

17 FCC Rcd. 15646 ¶¶ 30, 33 (2002). Minority TV’s

announcements were in exchange for consideration and on

behalf of for-profit corporations such as Chevrolet, Ford, and

Korean Airlines. Id. ¶ 14. The FCC found that the

advertisements included improper promotional language. Id.

¶¶ 9, 15. The FCC rejected nearly all of Minority TV’s

challenges and issued a forfeiture order for $10,000. 18 FCC

Rcd. 26611 (2003). The FCC denied Minority TV’s

application for review and petition for reconsideration. 

20 FCC Rcd. 16923 (2005); 19 FCC Rcd. 25116 (2004).

Minority TV then filed in this court a petition for review

of the FCC orders. After filing the petition, Minority TV paid

the $10,000 forfeiture to the FCC in full. We transferred the

case to district court.3

The district court dismissed Minority TV’s challenges to

the notice and the forfeiture order, its as-applied challenges

to § 399b, and its facial and as-applied challenges to

§ 73.621(e) for lack of jurisdiction because the courts of

appeals have exclusive jurisdiction to review FCC regulations

and orders. 47 U.S.C. § 402(a). The court explained that

§ 504(a), the carve-out allowing district courts to review

forfeiture orders, applied only to unpaid forfeiture actions. 

47 U.S.C. § 504(a).

3

In transferring the case, we cited 47 U.S.C. § 504(a) and Dougan v.

FCC, 21 F.3d 1488, 1490–91 (9th Cir. 1994), in which we held that

“§ 504(a) vests exclusive jurisdiction in the district courts to hear

enforcement suits by the government and suits by private individuals

seeking to avoid enforcement.” Id. (emphasis added).
10 MINORITY TELEVISION PROJECT V. FCC

On cross-motions for summary judgment, the district

court granted summary judgment for the FCC on Minority

TV’s facial challenges to § 399b. Minority Television

Project, Inc. v. FCC, 649 F. Supp. 2d 1025, 1048 (N.D. Cal.

2009). Invoking the intermediate scrutiny test from League

of Women Voters, the court held that the statute was

“narrowly tailored to further a substantial government

interest.” Id. at 1042. The court pointed to the ample

evidence before Congress showing that “the advertising

prohibitions were necessary to preserve the unique

programming presented by public stations,” id. at 1037, and

to “additional material before the Court demonstrat[ing] that

the legislative conclusions are supported by substantial

evidence,” id. at 1039. In addition, the court held that the

statute was not unconstitutionally vague. Id. at 1048.

Minority TV appealed. The panel upheld the ban on forprofit goods and services advertising. Two members of the

divided panel issued separate opinions striking down the

statute’s ban on issue and political advertising. Minority

Television Project, Inc. v. FCC, 676 F.3d 869 (9th Cir. 2012). 

In dissent, Judge Paez determined that §§ 399b(a)(2) and (3)

were neither “patently overinclusive [nor] underinclusive,”

and that there were no “‘less restrictive means’ to § 399b that

[were] readily available.’” Id. at 893–95 (Paez, J., dissenting)

(citation omitted). Unlike the panel majority, Judge Paez

found substantial record evidence to support § 399b’s narrow

tailoring. Id. at 896–97. In an unpublished memorandum

disposition, the panel unanimously held that the district court

correctly dismissed Minority TV’s as-applied challenges to

§ 399b and its challenges to 47 C.F.R. § 73.621(e), and that

§ 399b was not unconstitutionally vague.4 A majority of

 

4

 Minority TV did not appeal the district court’s dismissal of its claims

regarding the notice and the forfeiture order.
MINORITY TELEVISION PROJECT V. FCC 11

nonrecused active judges voted in favor of rehearing en banc. 

704 F.3d 1009 (9th Cir. 2012).

ANALYSIS

I. FACIAL INTERMEDIATE SCRUTINY CHALLENGE TO

§ 399b

A. FRAMEWORK FOR ANALYSIS

1. Intermediate Scrutiny Test for Broadcast

Regulation

The Supreme Court laid down the standard for evaluating

the constitutionality of § 399b—intermediate scrutiny—in

League of Women Voters. 468 U.S. at 380. That case

involved a First Amendment challenge to a statutory

provision forbidding all NCE stations that received grants

from the Corporation for Public Broadcasting from

“engag[ing] in editorializing.” Id. at 366 (citing 47 U.S.C.

§ 399 (1980)). The Court declined to apply strict scrutiny

even though the statute was content-based and “plainly

operate[d] to restrict the expression of editorial opinion on

matters of public importance”—a form of speech “entitled to

the most exacting degree of First Amendment protection.” 

Id. at 375–76. It explained 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.” 

Id. at 376.

The Court struck down the ban on editorialization because

it was not “sufficiently tailored to the harms it s[ought] to
12 MINORITY TELEVISION PROJECT V. FCC

prevent to justify its substantial interference with

broadcasters’ speech.” Id. at 392. In particular, the ban was

“manifest[ly] imprecis[e]”—both “patent[ly] overinclusive[]

and underinclusive[].” Id. at 392, 396. The government’s

substantial interest in ensuring that viewers did not think

broadcasters’ editorials reflected the views of the government

could “be fully satisfied by less restrictive means that [were]

readily available.” Id. at 395.

Like the statute at issue in League of Women Voters,

§ 399b is a content-based broadcast regulation, and we may

uphold the statute’s restrictions on advertising only if we are

satisfied that they are “narrowly tailored to further a

substantial governmental interest.” Id. at 380. In addition,

because subsections (a)(2) and (a)(3) burden public issue and

political speech, we must be “particularly wary in assessing

[the statute] to determine whether it reflects an impermissible

attempt ‘to allow a government [to] control . . . the search for

political truth.’” Id. at 384 (quoting Consolidated Edison Co.

v. Public Service Comm’n of N.Y., 447 U.S. 530, 538 (1980)

(alteration in original)).

Minority TV urges us to adopt a strict scrutiny standard. 

We do not credit Minority TV’s argument that Citizens

United v. Federal Election Comm’n, 558 U.S. 310 (2010),

overruled decades of precedent sub silentio—especiallygiven

that the Court there expressly overruled two other cases with

no mention of League of Women Voters or an intent to change

the level of scrutiny for broadcasting. Citizens United was

not about broadcast regulation; it was about the validity of a

statute banning political speech by corporations. Had

Citizens United changed the standard for broadcast

regulation, presumably the Supreme Court would have

recognized as much two years later in FCC v. Fox Television
MINORITY TELEVISION PROJECT V. FCC 13

Stations, 132 S. Ct. 2307, 2320 (2012), rather than declining

to address the broadcasters’ claim that precedent providing

for less rigorous scrutiny of broadcast regulation “should be

overruled because the rationale of that case has been

overtaken by technological change.” The Supreme Court has

not gone there and neither should we, absent a complete

record on the subject and a change of direction by the

Supreme Court. This case is not a suitable one for such

fundamental reconsideration of longstanding precedent.5

2. Scope of the Record

We are presented with an ample record to support § 399b,

consisting both of evidence that was before Congress in 1981

and evidence before the district court that covered the period

after enactment. Following the Supreme Court’s lead, we

look to “the evidence before Congress and then the further

evidence presented to the District Court.” Turner

Broadcasting Sys. v. FCC, 520 U.S. 180, 196 (1996) 

(“Turner II”). As a matter of course, in multiple First

Amendment cases, the Court has looked beyond the record

before Congress at the time of enactment. See, e.g., League

of Women Voters, 468 U.S. at 387 & n.18, 390 & n.19, 392

n.21, 393 n.22 (looking to testimony before Congress as well

as reports and other evidence following the statute’s

enactment), and United States v. Playboy Ent. Grp., 529 U.S.

5 We acknowledge that there has been considerable technological change

in broadcasting, including the ubiquity of the Internet. However, a

thoughtful examination of the impact of those changes on the use of

broadcast spectrum, market segmentation, and the like can hardly occur

on a record bare of evidence of the impact of technological change. 

Minority TV has offered nothing other than sound bite platitudes, and the

dissent has offered nothing other than a series of newspaper articles, with

the weight of such publications as ESPN Playbook and Variety.
14 MINORITY TELEVISION PROJECT V. FCC

803, 821–22 (2000) (faulting the government for failing to

produce additional “probative evidence” to supplement the

“near barren legislative record” in applying strict scrutiny).

Congress enacted §§ 399a and 399b after a two-year FCC

notice and comment proceeding, days of hearings, and a

thoughtful committee report. Indeed, the record before

Congress provides a sufficient basis to uphold the statute

even without the supplemental evidence offered in the district

court. This case “does not present a close call” requiring us

to elaborate on what evidentiary burden Congress bears in

enacting a law that implicates First Amendment rights. Nixon

v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 393 (2000); see

also Sable Comm. of Cal., Inc. v. FCC, 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.”).

It is clear, however, that 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 Broadcasting Sys. v. FCC, 512 U.S. 622,

666 (1994) (“Turner I”). We reject Minority TV’s

suggestions to the contrary. The dissent’s insistence on

“evidence” in the technical sense is misplaced. We are not

abdicating to a congressional whim or succumbing to some

notion that “judges like public radio and television,” Dissent

at 41, simply because we give credence to congressional

findings. Pure and simple, the dissent doesn’t like what

Congress found after considering extensive FCC

administrative proceedings, holding its own hearings, and

preparing a committee report. Congress is a political body

that operates through hearings, findings, and legislation; it is
MINORITY TELEVISION PROJECT V. FCC 15

not a court of law bound by federal rules of evidence. 

Ignoring fundamental principles of separation of powers, the

dissent would rewrite the legislation, ignore the congressional

evidence, and substitute pop culture and its own policy

judgment for that of Congress.

In enacting §§ 399a and 399b, Congress made a

prediction about the effects of underwriting announcements,

logograms, and advertising on public broadcast programming. 

We must accord deference “to [Congress’s] findings as to the

harm to be avoided and to the remedial measures adopted for

that end, lest we infringe on traditional legislative authority

to make predictive judgments when enacting nationwide

regulatory policy.” Turner II, 520 U.S. at 196. 

Congressional concern and prognostication was well

informed, but the information before Congress was

necessarily limited because advertising had never been

allowed on NCE stations. The First Amendment does not

require Congress to wait for a feared harm to take place

before it can act. Such a high bar would make little practical

sense—it would tie Congress in knots and strip it of its ability

to adopt forward thinking public policy. “Sound

policymaking often requires legislators to forecast future

events and to anticipate the likely impact of these events

based on deductions and inferences for which complete

empirical support may be unavailable.” Turner I, 512 U.S. at

665.

Apart from the evidence that was before Congress in

1981, the government presented significant additional

evidence, including a 2007 report by the Government

Accountability Office (“GAO”) on public television; the

report of the Temporary Commission on Alternative

Financing for Public Telecommunications, which oversaw an
16 MINORITY TELEVISION PROJECT V. FCC

experiment with limited advertising on public television;

information about political advertising; an expert report from

a Stanford University professor emeritus with over 40 years

of experience in studying the economics of broadcasting and

public television; and a declaration from a vice president of

a foundation that operates numerous noncommercial

educational radio and television stations.

We conclude that substantial evidence before Congress

supported the conclusion that the advertising prohibited by

§ 399b posed a threat to the noncommercial, educational

nature of NCE programming and that the additional evidence

bears out Congress’s predictive judgment in enacting § 399b. 

Minority TV’s scant evidentiary showing reinforces this

conclusion. See Nixon, 528 U.S. at 394 (noting that more

extensive evidence might be required if the parties

challenging the statute “had made any showing of their own

to cast doubt” on the evidence supporting it). Similarly, the

dissent offers only speculation not substance for its view that

permitting unfettered advertising wouldn’t lead to distortion

and perverse incentives. Poking holes in the congressional

evidence is hardly a substitute for the scrutiny required of this

court.

B. INTERMEDIATE SCRUTINY ANALYSIS OF SECTION

399b

We now turn to a more detailed analysis of whether

§ 399b is “narrowly tailored to further a substantial

governmental interest.” League of Women Voters, 468 U.S.

at 380. Section 399b was enacted in 1981 against the

backdrop of declining federal support for public broadcasting. 

Congress was acutely aware that public broadcasting needed

new sources of revenue to survive, but it was also worried
MINORITY TELEVISION PROJECT V. FCC 17

about undermining the essential nature of public broadcast

programming. The FCC had just promulgated new,

liberalized regulations that were “designed to further the

important governmental interest in preserving the essentially

noncommercial nature of public broadcasting within a

minimal regulatory framework by insulating public

broadcasters from commercial marketplace pressures and

decisions.” 90 F.C.C. 2d 895, 896 (1982) (statement by FCC

Commissioner Washburn clarifying the impact of the Public

Broadcasting Amendments Act on the recently issued

regulations) (emphasis in original). The FCC believed the

liberalized advertising restrictions “satisf[ied] constitutional

objections.” Id. Congress agreed, and so do we.

1. Substantial Governmental Interest

Federal regulation of the broadcast spectrum, a scarce

public resource, is entitled to more deferential First

Amendment review than regulation of other types of media. 

See Reno v. ACLU, 521 U.S. 844, 868 (1997) (highlighting

the “special justifications for regulation of the broadcast

media that are not applicable to other speakers,” including the

“history of extensive Government regulation of the broadcast

medium,” “the scarcity of available frequencies at its

inception,” and “its ‘invasive’ nature”) (citations omitted);

Turner I, 512 U.S. at 637 (noting that the “justification for

[the Court’s] distinct approach to broadcast regulation rests

on the unique physical limitations of the broadcast medium”). 

This deferential review is not strict scrutiny light, but instead

requires us to benchmark the statute against the requirements

of League of Women Voters, including the government’s

substantial interest. Section 399b’s advertising restrictions

speak directly to the government’s substantial interest in

maintaining the unique, free programming niche filled by
18 MINORITY TELEVISION PROJECT V. FCC

public television and radio. That Minority TV does not

contest the government’s substantial interest in ensuring the

diversity and quality of public broadcast programming is no

surprise. Nonetheless, it is useful to detail the nature and

scope of the government’s interest both as a prelude to and a

basis for informing our narrow tailoring analysis.

The First Amendment rights of MinorityTV and potential

advertisers do not exist in a vacuum. The Supreme Court has

recognized the public’s right “to receive suitable access

[through broadcast media] to social, political, esthetic, moral,

and other ideas and experiences.” Red Lion Broad. Co. v.

FCC, 395 U.S. 367, 390 (1969). “Balancing the various First

Amendment interests involved in the broadcast media and

determiningwhat best serves the public’s right to be informed

is a task of great delicacy and difficulty,” and “we must

afford great weight to the decisions of Congress and the

experience of the [FCC].” Columbia Broad. Sys. v.

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

In pursuit of its goal, the government set aside specific

channels for noncommercial use, provided funding through

the Corporation for Public Broadcasting and other means, and

created special requirements and restrictions for NCE

stations. See, e.g., 47 U.S.C. §§ 303 (a)–(b), 394, 396, 399a,

399b; 47 C.F.R. § 73.503. However, the dissent fails to

appreciate that section 399(b) is a central prong of these

structural constraints and that they operate as a package to

effectuate congressional intent. The dissent’s selective

excision of a foundational principle of public television 

undermines the integrated legislative package and ignores the

FCC’s experience with public television. Section 399b does

not stand alone; it is an important piece of a comprehensive
MINORITY TELEVISION PROJECT V. FCC 19

scheme to promote programming that is differentiated from

the typical commercial fare.

Numerous statutes and reports recognize the unique

nature of NCE programming. For example, when the FCC

first set aside television channels for noncommercial use, it

pointed to “the important contributions which noncommercial

educational television stations can make” and the “high

quality type of programming” available on NCE

stations—“programming of an entirely different character

from that available on most commercial stations.” Third

Notice of Further Proposed Rulemaking, 16 Fed. Reg. 3072,

3079 (1951). In the Public Broadcasting Act of 1967, which,

among other things, established the Corporation for Public

Broadcasting, Congress found that “[i]t furthers the general

welfare to encourage public telecommunications services

which will be responsive to the interests of people both in

particular localities and throughout the United States, which

will constitute an expression of diversity and excellence, and

which will constitute a source of alternative

telecommunications services for all the citizens of the

Nation.” 47 U.S.C. § 396(a)(5). And in passing the

Children’s Television Act of 1990, the Senate explained that

“public television is the primary source of educational

children’s programming in the United States.”

6 S. Rep.

101-66, at 7 (1989).

6 Speaking before the Senate on this Act, Senator Wirth stated that “[t]he

marketplace has simply failed to produce [educational children’s

programming] on its own, in large part because the advertiser-driven

television industry does not find children’s programming to be a

particularly lucrative venture” and that “educational [children’s] programs

have literally disappeared from the airwaves on all but PBS stations.” 

136 Cong. Rec. 18241–18242 (daily ed. July 19, 1990).
20 MINORITY TELEVISION PROJECT V. FCC

The unrebutted evidence before us documents that

programming on public broadcast stations is markedly

different from that on commercial stations. That was true in

1981 when Congress enacted § 399b, and it is true now. As

the district court noted, “Congress did not write on a blank

slate when it enacted Section 399b; rather, after a half-century

of experience with public broadcasting, the record before

Congress showed that public television and radio stations

carry very different programming than do commercial

stations.” 649 F. Supp. 2d at 1036. For example, there was

testimony before Congress that public radio allows “7 or 15

minutes to explore an issue, rather than being confined to the

30-60- and 90-second snatches common to commercial

stations,” provides “the only network for the blind,” “gives

you jazz live,” and provides four hours of daily news of a

different nature than that provided by commercial stations. 

H. Hgs. at 323 (Walda W. Roseman, Senior Vice President,

National Public Radio (“NPR”)).

Stanford University Professor Emeritus Roger Noll, a

government expert who has spent over forty years studying

the economics of broadcasting and public television,

presented evidence that “non-commercial stations offer

statistically significantly more public affairs, children’s and

family programming, and statistically significantly less

violent programming, than both affiliates of commercial

networks and all other commercial stations.” According to

the Government Accountability Office, public broadcasters

devote 16 percent of all program hours to educational

children’s programming,

7

compared to the 3.32 hours per

week the average commercial broadcaster gives to such

7 Some NCE stations devote more than 40 percent of their weekday

program hours to children’s programming.
MINORITY TELEVISION PROJECT V. FCC 21

programming. Many NCE stations also broadcast

instructional programming for adults, including GED

preparation, community college telecourses, and professional

growth programming for teachers and administrators. In

addition, some public broadcast stations are the only source

of local programming that is not related to news or sports.

The primary harm § 399b sought to prevent was the loss

of the distinctive content of public broadcast programming. 

Congress heard from dozens of witnesses who testified,

among other things, that “[c]ommercialization will make

public television indistinguishable from the new commercial

or pay culture cable services,” H. Hgs. at 149 (Larry Sapadin,

Executive Director, Association of Independent Video &

Filmmakers, Inc.), and that NCE-type programming “is just

not possible with the commercial constraints of providing a

commercial service,” H. Hgs. at 323 (Walda W. Roseman,

NPR). “All consumer and public interest group

representatives” who testified “were concerned about what

they viewed as a trend towards the commercialism of public

broadcasting.” H. R. Rep. No. 97-82, at 9 (1981).

One of the major themes in the evidence before Congress

was that advertising distorts programming decisions because

advertisers have something to sell—be it a product, message,

or candidate—and they want to sell it to the largest audience

possible. Representative Robert Matsui, a former member of

the Communications Subcommittee, explained that the

“principal thrust of commercial broadcasting . . . is controlled

by its need to reach mass audiences in order to sell products. 

While this mass approach is definitely a valid purpose,

commercial broadcasting is unable thereby to respond to the

myriad of individual needs of any community. . . . It simply

does not possess the programming flexibility to tailor shows
22 MINORITY TELEVISION PROJECT V. FCC

to serve the numerous characteristics of each community.” 

H. Hgs 30–31. Similarly, an article submitted to the House

by the National Association of Educational Broadcasters

explained that public broadcasters “don’t aim to amuse the

lowest common denominator of the audience because we’re

not seeking the highest ratings possible. Because we don’t

carry ads. Because the law won’t let us.” H. Hgs. 226–27;

see also H. Hgs. 129-30 (John C. DeWitt, American Found.

for the Blind) (testifying that “commercialization of public

broadcasting . . . run[s] the danger that [broadcasters] will

focus on the lowest common denominator of programming”

rather than on serving “diverse audiences” like minorities,

women, and the print handicapped). One member of the

House of Representatives summed up this concern: “Will the

search for dollars compromise [public broadcasting’s]

creative genius? Will there be strings attached to the money

that is given to public broadcasting so that the most

courageous and needed programs are not funded for fear of

controversy—or simply fear itself?” 127 Cong. Rec. 13148

(June 22, 1981) (Rep. Waxman).

The commercialization Congress feared was not restricted

to typical commercial business advertising. Rather, Congress

was worried about the commercialization of public

broadcasting itself: the selling of airtime. See, e.g., H. Hgs.

71 (Senator Wirth describing how the “selling of time” would

transform public broadcasting by leading stations to make

programming decisions based on their calculations of the

advertising value of shows); see also H. Hgs. 149 (the

Executive Director of the Association of Independent Video

& Filmmakers, Inc., emphasizing that “[s]elling makes its

own demands”).
MINORITY TELEVISION PROJECT V. FCC 23

Congress heard testimony about the need to protect public

broadcasting from all special interests whose advertising

dollars could affect programming decisions. See H. Hgs. 112

(Jack Golodner, Director, Department for Professional

Employees, AFL-CIO) (“[I]f public broadcasting is to

perform its role . . . , then sufficient public funding must be

made available so that to the furthest extent humanly

possible, it is insulated from political, corporate, and, for that

matter, labor influence.”). The record shows that Congress

was concerned with “insulat[ing] public broadcasting from

special interest influences—political, commercial, or any

other kind.” 127 Cong. Rec. 13145 (1981) (Rep. Gonzales);

see also H.R. Rep. No. 97-82, at 16 (1981) (listing as a

criterion for alternative financingmechanisms the “insulation

of program control and content from the influence of special

interests—be they commercial, political or religious”).

Evidence before the district court reinforces the

congressional view that if advertising were allowed,

programmingwould “follow the money,” changing the nature

of public broadcast programming. The research cited by Noll

is consistent with much of the testimony before Congress, and

it bears out Congress’s predictive judgment that advertising

would change the face of public broadcasting. Noll explained

that commercial broadcasting suffers from a “market failure”

in that a “competitive, advertiser-supported television system

leads to an emphasis on mass entertainment programming

with insufficient attention to programs that serve a small

audience, even if that audience has an intense desire to watch

programs that differ from standard mass entertainment

programs.” According to Noll, in order to attract advertising

dollars, NCE stations would have to change their

programming to be more like that on commercial stations—

programming that advertisers prefer because it attracts large

audiences.
24 MINORITY TELEVISION PROJECT V. FCC

The diversity and quality of programming on public

broadcast stations stems both from the restrictions on

advertising and from the incentives created by the existing

funding structure. Funding for NCE stations comes from

federal, state, and local subsidies; donations from viewers;

and program underwriters including corporations,

foundations, and other entities. Noll explained that,

“[b]ecause the viability of public television stations depends

on attracting donations, stations are motivated to offer

programs that encourage voluntary contributions from the

communities that they serve.”

Lance Ozier, the Vice-President for Planning and Policy

of the WGBH Educational Foundation, detailed that funding

from federal and state government sources as well as

foundations and other not-for-profit underwriters would be

jeopardized if NCE stations were permitted to air paid

advertisements. Ozier stated that the loss of funding would

not be restricted to those stations who chose to air

advertisements: “Every public station would face the

consequences generally of a perceived deviation from the

public education mission.”

In 2007, the GAO reported that many of the public

television licensees with whom it spoke opposed greater

underwriting flexibility. The large majority that opposed

greater underwriting flexibility said that it “would not

generate increased underwriting revenues, since corporations

and advertisers desire programming with high ratings and a

targeted demographic,” “would upset viewers and contribute

to a decline in membership support,” “could threaten a

licensee’s ability to receive financial support from a state

government,” and “would be inconsistent with the mission of

public television and could alter programming decisions.”
MINORITY TELEVISION PROJECT V. FCC 25

The upshot of the evidence—starting with the FCC study,

buttressed during congressional hearings, and reinforced by

additional evidence before the district court—is that the

government has a substantial interest in imposing advertising

restrictions in order to preserve the essence of public

broadcast programming.

2. Narrow Tailoring

With this substantial interest in mind, the next question in

our intermediate scrutiny analysis is whether the law is

“narrowly tailored to further [that] substantial government

interest.” League of Women Voters, 468 U.S. at 380. Unlike

strict scrutiny, intermediate scrutiny does not require that the

means chosen by Congress be the least restrictive. See

Turner I, 512 U.S. at 662; United Brotherhood of Carpenters

& Joiners of Am. Local 586 v. NLRB, 540 F.3d 957, 968 (9th

Cir. 2008). As the Supreme Court succinctly noted in a

commercial speech case, narrow tailoring requires “a ‘fit’

between the legislature’s ends and the means chosen to

accomplish those ends.” Bd. of Tr. of the State Univ. of New

York v. Fox, 492 U.S. 469, 480 (1989) (citation omitted).

Understanding the contrast between this case and the ban

on editorialization in League of Women Voters is a useful

starting point in the narrow tailoring analysis. See 468 U.S.

at 393. That ban was patently overinclusive because it

“include[d] within its grip a potentially infinite variety of

speech” that was not related to the government’s interests in

protecting NCE stations from “being coerced . . . into

becoming vehicles for government propagandizing or the

objects of governmental influence.” Id. at 393, 396. The

restriction was also patently underinclusive. Id. at 396. 

Because the stations remained “fully able to broadcast
26 MINORITY TELEVISION PROJECT V. FCC

controversial views so long as such views [were] not labeled

as [their] own,” the ban did not effectively “reduce the risk of

government retaliation and interference.” Id. at 384–85. 

There was also evidence that some supporters of the bill were

less concerned with the risk of government control of NCE

stations than they were with protecting themselves from

critical speech. Id. at 387 n.18 (quoting the provision’s chief

sponsor, who explained that some representatives “have very

strong feelings because they have been editorialized

against”). Finally, the government’s interest in ensuring that

audiences would not presume that broadcasters’ editorials

reflected official government views could have been easily

satisfied by a less restrictive regulation requiring NCE

stations to broadcast a disclaimer when they editorialized. Id.

at 395. In short, there was very little fit between the ban and

its stated purposes.

In contrast, § 399b’s restrictions are narrowly tailored to

the harms Congress sought to prevent. Having documented

the link between advertising and programming, Congress

reaffirmed the long-standing ban on advertising on NCE

stations, but in a more targeted manner. In place of the prior

absolute ban on promotional content, which swept within its

reach a wide range of speech that did not pose a significant

risk to public programming, Congress enacted targeted

restrictions that leave untouched speech that does not

undermine the goals of the statute. The restrictions leave

broadcasters free to air enhanced underwriting, which both

the FCC and Congress determined did not pose the same risk

to programming as advertisements. Broadcasters may air any

promotional content for which consideration was not

received. Finally, the statute permits non-profit

advertisements. As to this latter category, the government

offered evidence that non-profit advertisements, which are
MINORITY TELEVISION PROJECT V. FCC 27

few in number and perceived by the public as consistent with

the mission of public broadcasting, do not pose the same

threat as other forms of advertising.

Section 399b’s prohibitions are specificallytargeted at the

real threat—the influence of paid advertising dollars. 

Congress identified significant special interests that pump

money into advertising, setting out three subsets of

advertisers—typical for-profit businesses, political

candidates, and advocacy groups. The term “advertisement”

is defined by reference to these three subsets, which taken

together have a single effect: to prevent the

commercialization of public broadcasting by prohibiting

nearly all advertising. Although the dissent proffers

unsupported distinctions between political or issue

advertisements and commercial advertisements they are not

germane to the overall threat that Congress targeted:

commercialization through advertising.

Unlike the ban on editorialization, which was

underinclusive to the point of ineffectiveness, § 399b

effectively “insulate[s] public broadcasting from special

interest influences—political, commercial, or anyother kind.” 

127 Cong. Rec. 13145 (1981). More than thirty years since

§ 399b was enacted, the continuing differences between

public broadcasting and commercial broadcasting are a

testament to the statute’s success in promoting Congress’s

purpose. The government provided expert evidence that the

“present system of financing public television is

effective”—that it “improves diversity of programming”

while “avoiding problems associated with advertisements.” 

Minority TV’s unsupported assertion that “399b’s attempt to

prevent the ‘buying’ of influence cannot possibly be

effective” because “groups, entities, and individuals” can still
28 MINORITY TELEVISION PROJECT V. FCC

“attempt to ‘buy’ influence” by making donations is not

persuasive. Not only is there no evidence that donations

affect programming; there is a huge difference between a

donation and targeted advertising.

The dissent acknowledges the evidence before Congress

and the district court, but offers its own theories of how to

protect public broadcasting. Contrasting the actual evidence

and the dissent’s proposals illustrates the difference between

the strict scrutiny standard that the dissent hoped we would

apply and the intermediate scrutiny standard that we are

bound to apply. We do not demand mathematical precision

from Congress; rather, we demand a “fit” between the ends

and the chosen means. Fox, 492 U.S. at 480. The evidence

in this case easily demonstrates a fit between section 399(b)

and the substantial interest in protecting the essence of public

broadcasting. Therefore,section 399(b)survives intermediate

scrutiny on this prong of the analysis under League of Women

Voters.

a. Overinclusiveness: Challenge to Issue and

Political Advertising Restrictions

Minority TV essentially lets pass § 399b’s restriction on

for-profit goods and service advertising and focuses its attack

on the political and issue advertising restrictions. This attack

rests on a distinction without a difference. Congress was

trying to prevent the commercialization of public

broadcasting itself, not simply advertisements by commercial

businesses.

MinorityTV mistakenly attempts to equate congressional

focus on commercialization with for-profit businesses; but

this reading is at odds with congressional intent. Congress
MINORITY TELEVISION PROJECT V. FCC 29

determined that the “insulation of program control and

content from the influence of special interests—be they

commercial, political or religious”—was necessary. See H.R.

Rep. No. 97-82, at 16 (1981). The government’s evidence

regarding the enormous sums spent on political advertising

confirms Congress’s prediction that, like advertising by forprofit entities, political advertising dollars have the power to

distort programming decisions. In 2008 alone, political

advertisers spent $2.2 billion. As the campaign season gets

longer and longer, commercial television viewers are

bombarded with political and issue advertising. Prohibiting

only goods and services advertising and allowing issue and

political advertising would have shifted incentives and left a

gaping hole in § 399b’s protections.

We recognize the special place political speech has in our

First Amendment jurisprudence. Morse v. Frederick,

551 U.S. 393, 403 (2007) (“Political speech, of course, is ‘at

the core of what the First Amendment is designed to

protect.’”) (citation omitted). But there is no evidence that

Congress was targeting political speech, critical speech or

particular viewpoints as opposed to the programming

influence exerted by advertising dollars. Cf. League of

Women Voters, 468 U.S. at 387 n.18 (noting that some

supporters of the ban on editorialization “appear to have been

more concerned with preventing the possibility that these

stations would criticize Government officials” than with the

risk of undue government influence).

Each form of prohibited advertising poses a similar threat. 

Whether selling financial services, a state senator, or a voter

initiative, advertisers seek the largest possible audience. See

H. Hgs. 149 (“The purpose of advertising is simply to sell—a

product or an image. Selling makes its own demands.”)
30 MINORITY TELEVISION PROJECT V. FCC

(Larry Sapadin, Executive Director, Association of

Independent Video & Filmmakers, Inc.). Advertisers also

seek programming that is consistent—or at least not contrary

to—their messages and values, or the values of their

customers or constituencies. See Yoo, Christopher S.,

Architectural Censorship and the FCC, Regulation, vol. 28,

issue 1 (2005), at 24 (“Anecdotal evidence suggests that some

advertisers have discouraged networks from offering

programming that addresses controversial issues or that casts

their products in an unflattering light. In addition, reliance on

advertising support leaves programmers vulnerable to the

political biases of advertisers and special interest groups.”).

Finally, selling programs would essentially convert public

broadcasting into commercial broadcasting. See, e.g., H.

Hgs. 71 (“If we get public broadcasting into the selling of

time, how do we avoid then getting public broadcasting . . .

into a very large commitment of their own to figure out what

demographics they are touching or what the measurement is

going to be able to be of that particular population, and how

much X program sells for and how much Y program sells

for?”) (Sen. Wirth). It strains logic to suggest that advertisers

would compete intensely to run ads for a state senator or a

voter initiative on guns or taxes during Sesame Street or

Mister Rogers. Children are hardly the appropriate target

audience.

Minority TV argues that more was needed before

Congress could prohibit issue and political advertising. We

disagree. Substantial evidence before Congress supported its

determination that the selling of airtime to political and issue

advertisers, as with for-profit advertisers, would distort

programming decisions. As the Court observed in Turner II

in rejecting the dissent’s insistence that Congress was

required to have more information before it could enact the
MINORITY TELEVISION PROJECT V. FCC 31

cable must-carry legislation, that level of factfinding “would

be an improper burden for courts to impose on the Legislative

Branch.” 520 U.S. at 213. “That amount of detail is as

unreasonable in the legislative context as it is constitutionally

unwarranted.” Id. Congress’s prophylactic action, based on

common sense, congressional understanding of how political

advertising works, and record evidence, did not need to await

an empirical study to support its predictions. See Turner I,

512 U.S. at 665 (“Sound policymaking often requires

legislatures to forecast future events and to anticipate the

likely impact of these events based on deductions and

inferences for which complete empirical support may be

unavailable.”).

Congress’s determination that all three kinds of

advertising posed a significant threat to public programming

is supported by substantial evidence, and Minority TV does

not point to any evidence indicating that issue and political

advertising are less likely to result in commercialization than

corporate goods and services advertising. Its argument as to

overinclusiveness doesn’t pan out.

b. Underinclusiveness: Challenge to

Permitting Advertising by Non-Profit

Entities

Minority TV makes much of the fact that § 399b does not

prohibit advertising by non-profit entities. It frames this as an

argument that § 399b favors commercial speech—advertising

by non-profits—over non-commercial speech—political and

issue advertisements. Minority TV claims that the statute

“clearly inverts the hierarchy of constitutional protections of

speech.” There is, however, a documented reason for

exempting this tiny slice of advertising from the overall
32 MINORITY TELEVISION PROJECT V. FCC

restrictions—non-profit advertising is a drop in the bucket

money wise and this limited advertising has no programmatic

impact.

Although the cases that Minority TV relies on for this

argument concern newspaper racks and portable signs, the

argument itself appears to come straight from the law of

billboards. It is true that, with respect to billboards, “an

ordinance is invalid if it imposes greater restrictions on

noncommercial than on commercial billboards.” Nat’l Adver.

Co. v. Orange, 861 F.2d 246 (9th Cir. 1988). But public

broadcasting stations are not billboards, and broadcast

regulations are not subject to the formulation for billboards,

newspaper racks, or signs. “Each method of communicating

ideas is ‘a law unto itself’ and that law must reflect the

‘differing natures, values, abuses and dangers’ of each

method.” Metromedia, Inc. v. City of San Diego, 453 U.S.

490, 501 (1981) (quoting Kovacs v. Cooper, 336 U.S. 77, 97

(1949) (Jackson, J., concurring)).

Even if this longstanding distinction were cast aside,

Minority TV’s reliance on cases such as Ballen v. Redmond,

466 F.3d 736 (9th Cir. 2006), and Cincinnati v. Discovery

Network, 507 U.S. 410 (1993), is misplaced. In Ballen, for

example, the sign ordinance was ostensibly intended to

promote safety and community aesthetics. Instead, the

ordinance discriminated on the basis of content and the

permitted signs created the same harms as the prohibited

ones. This was a classic mismatch between the restriction

and its stated purpose. Unlike the statute here, the ordinance

in Ballen was not “a reasonable fit between the restriction and

the goal[.]” 466 F.3d at 744. Discovery Network also

underscored the same absence of “reasonable fit” because the

ordinance was directed to such a “paltry” aspect of the
MINORITY TELEVISION PROJECT V. FCC 33

purported problems posed by newspaper racks. 507 U.S. at

417–18.

To the extent that Minority TV is making an

underinclusiveness argument—that § 399b is underinclusive

because it does not prohibit goods and services advertising by

non-profits—that attack also fails. See Sorrell v. IMS Health,

Inc., 131 S. Ct. 2653, 2668 (2011) (explaining that “[r]ules

that burden protected expression may not be sustained when

the options provided by the State are too narrow to advance

legitimate government interests”);see also Mainstream Mktg.

Servs., Inc. v. FTC, 358 F.3d 1228, 1238–39 (10th Cir. 2004)

(“The underinclusiveness of a commercial speech regulation

is relevant only if it renders the regulatory framework so

irrational that it fails materially to advance the aims that it

was purportedly designed to further.”). The statute in League

of Women Voters was “patent[ly] . . . underinclusive[]” and

“‘provide[d] only ineffective or remote support for the

government’s purpose,’” whereas § 399b has been effective

in meeting the government’s asserted interest. 468 U.S. at

396 (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 557, 564 (1980)). Allowing nonprofit advertising has not thwarted § 399b’s goals.

In promulgating its newly liberalized 1981 regulations,

the FCC noted that “[m]any commenting parties were

concerned with the proscription” on promoting the sale of

products or services as applied to announcements made on

behalf of non-profit entities or the station itself. 86 F.C.C. 2d.

at 144. The FCC addressed this concern by limiting the ban

to announcements for which consideration was received. Id.

at 148–49. Congress went one step further in narrowly

tailoring the legislation, by allowing non-profit advertising

for goods and services without regard to whether

consideration was received.
34 MINORITY TELEVISION PROJECT V. FCC

Congress’s prediction that non-profit advertising would

not pose the same risk to public broadcasting as the restricted

types of advertising is borne out by the record. Lance Ozier

from the WGBH Educational Foundation explained that

advertising by non-profit entities “do[es] not present the same

danger” to public television as prohibited forms of

advertising because (1) “viewers generally have seen

messages from [non-profit] entities as being consistent with

the public education mission of public television,” so

advertisements by non-profit entities “do not threaten

traditional funding sources” like viewer donations and

government grants, and (2) “there is a much smaller set of

not-for-profit advertisers than there is of for-profit

advertisers.” Non-profit advertising sales are so small that

they did not even register on the breakdown of public

television revenue sources presented by the government.

Indeed, there is only a single actual non-profit announcement

in the record before us, and it is not one that Minority TV

sought to broadcast. Non-profit advertising does not pose the

same threat as commercial, political, or issue advertisements

in large part because the number of corporate advertisers

dwarfs the number of potential non-profit advertisers. In the

end, exempting non-profit advertising underscores, rather

than undermines, Congress’s narrow tailoring.

c. No Sufficient Less Restrictive Means

The goals of § 399b cannot “be fully satisfied by less

restrictive means that are readily available.” 468 U.S. at 395. 

Section 399b already is a less restrictive means of ensuring

diverse, high quality programming on public broadcast

stations than either the previous promotional prohibition or

any attempt to directly regulate program content rather than
MINORITY TELEVISION PROJECT V. FCC 35

advertising.

8 The latter approach would not only be less

effective, it would open a different can of First Amendment

worms.

Minority TV insists that time, place, and manner

restrictions could achieve the same goals. Without any

support as to correlation with Congressional goals, Minority

TV blithely suggests limiting the number of underwriting

announcements or permitting advertising that doesn’t

interrupt programming and is limited in length. But that

argument runs counter to the evidence. Lance Ozier

concluded that NCE stations would “be forced to change

[their] programming substantially . . . even if advertisements

did not interrupt programming or if they were limited in

length.” Ozier explained that, “should public broadcasting be

perceived as being ‘commercial,’” NCE stations would have

a harder time soliciting donations from viewers and might

lose funding from federal and state government sources,

foundations, and other not-for-profit underwriters. The

stations could also experience increased costs by losing the

beneficial treatment they currently receive in negotiating

labor contracts and broadcast rights.

Minority TV also ignores the history of the Advertising

Demonstration Program, an experiment authorized by the

Public Broadcasting Act of 1981 that allowed advertisements

on some public broadcast stations subject to the very

8 According to Roger Noll, “the regulatory approach—improving the

content of programs by writing content rules—is not as effective as simply

removing the commercial incentive by eliminating advertising and

subsidizing the right kind of programs.” For example, the poor outcomes

of efforts to mandate educational and informational children’s

programming on commercial stations evidence the weakness of a content

regulation approach.
36 MINORITY TELEVISION PROJECT V. FCC

restrictions Minority TV proffers—that the advertisements

not interrupt programming and be limited in length. The

Temporary Commission on Alternative Financing for Public

Telecommunications(“theCommission”), which was charged

with overseeing the experiment, concluded that “the benefit

that some public broadcasting stations might gain additional

revenues from the authorization of limited advertising does

not balance the potential risks identified in this report.” 

Among the potential risks identified were those noted by

Ozier. For example, representatives of the five major unions

involved with program production told the Commission that

they “may seek ‘commercial’ rates and rights agreements

from public broadcast stations that air limited

advertisements,” and copyright-owners’ representatives

similarly indicated that they might seek higher payments

from those stations.9 Based on the results of the experiment,

the Commission recommended that Congress leave § 399b’s

prohibitions in place. It is rare to have the benefit of a

comparison when judging less restrictive means. We cannot

ignore experience with alternatives that demonstrates that

§ 399 is narrowly tailored to accomplishing Congress’s

goals.10

9 The Commission obtained agreements to freeze labor and copyright

costs for the course of the experiment with the express assurance that such

freezes would not constitute a precedent if limited advertising were later

authorized.

10 We are surprised by the dissent’s effort to undermine the

Commission’s recommendation with selective excerpts from the

Commission’s report. For example, the dissent picks up on language

suggesting a possible increase in revenues. The Commission, however,

specifically discounted reliance on data showing any increased revenue. 

The dissent also highlights opinion polls that “showed an increase in the

number of subscribers who reported that they would continue to

contribute;” in fact, the actual data reflected “[a] significant decline in
MINORITY TELEVISION PROJECT V. FCC 37

Finally, although Congress may not have considered a

pure time, place and manner restriction, as Minority TV

claims it should have, it did evaluate less restrictive

alternatives. The House considered an alternative to § 399b

that would have allowed institutional advertisements that did

not interrupt regular programming and did not exceed thirty

seconds in duration. H. Hgs. 24 (proposed text of H.R. 2774). 

While some of those who testified before Congress supported

allowing institutional advertisements, many opposed it. See,

e.g., H. Hgs. 229 (David Ives, president of WGBH TV in

Boston) (stating that allowing logograms “liberalizes our

rules without compromising our principles,” but that

permitting even limited institutional advertisements would

“blur the distinction between us and commercial stations”);

H. Hgs. 149 (Association of Independent Video and

Filmmakers, Inc.) (“Even tasteful, institutional advertising

will give rise to programming that will conform to the

purposes of corporate image-building . . . .”).

II. FACIAL VAGUENESS CHALLENGE TO § 399b

Section 399b’s prohibition of paid messages intended to

“promote” any service, facility, or product of a for-profit

entity is not unconstitutionally vague. A statute need not

have “mathematical certainty” to survive a vagueness

challenge; instead, it may be marked by “flexibility and

reasonable breadth, rather than meticulous specificity.” 

average contribution per subscriber at advertising stations.” Moreover, the

data showed reduced giving fromlarge contributors. Likewise, the dissent

ignores new costs to public broadcast stations that the Commission

identified, including tax increases or complete loss of tax-exempt status

that could result without section 399(b). The dissent’s “evidence” does

not withstand basic scrutiny.
38 MINORITY TELEVISION PROJECT V. FCC

Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)

(citation omitted). Nonetheless, the meaning of the term

“promoting” a product or service is fully within “common

understanding” and is clear in the vast majority of

circumstances. Cal. Teachers Ass’n v. State Bd. of Educ.,

271 F.3d 1141, 1151 (9th Cir. 2001). To the extent it is not,

the FCC—to remove uncertainty—provides declaratory

rulings to broadcasters who fear they might run afoul of

§ 399b. 47 C.F.R. § 1.2. This guidance serves to

“sufficiently narrow potentially vague or arbitrary

interpretations” of the statute. Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504 (1982).

III. AS-APPLIED CHALLENGE TO § 399b AND

CHALLENGES TO 47 C.F.R. § 73.621(e)

The district court correctly dismissed Minority TV’s

as-applied challenges to § 399b and its challenges to

47 C.F.R. § 73.621(e). Section 399b was applied to Minority

TV only through FCC orders and regulations, including

47 C.F.R. § 73.621(e). Jurisdiction over challenges to FCC

orders lies exclusively in the court of appeals; as such, federal

district courts lack jurisdiction over appeals of FCC orders. 

28 U.S.C. § 2342(1) (“The court of appeals . . . has exclusive

jurisdiction to enjoin, set aside, suspend (in whole or in part)

or determine the validity of . . . all final orders of the Federal

Communications Commission.”). See also United States v.

Dunifer, 219 F.3d 1004, 1007 (9th Cir. 2000) (explaining that

district courts lack jurisdiction over any challenge to FCC

regulations).

Although the Supreme Court has previously reviewed a

First Amendment challenge to an FCC regulation that was

initially filed in federal district court, see Greater New
MINORITY TELEVISION PROJECT V. FCC 39

Orleans Broadcasting Ass’n v. United States, 527 U.S. 173

(1999), the Court in that case did not address—and was not

asked to address—whether jurisdiction in the district court

was proper. Courts “are not bound by a prior exercise of

jurisdiction in a case where it was not questioned and it was

passed sub silentio.” United States v. L.A. Trucker Truck

Lines, Inc., 344 U.S. 33, 38 (1952).

AFFIRMED.

CALLAHAN, Circuit Judge, concurring and dissenting:

I concur in the majority’s opinion only insofar as it

upholds 47 U.S.C. § 339(b)’s prohibition against paid

advertisements by for-profit entities.

I dissent from the majority’s acceptance of § 339(b)’s

prohibition of advertisements on issues of public importance

or interest and for political candidates. As explained by the

Chief Judge in his dissent, and by Judge Bea in his opinion

for the three-judge panel, Minority Television Project, Inc. v.

F.C.C., 676 F.3d 869, 885–89 (9th Cir. 2012), these

restrictions implicate the First Amendment’s core concerns

and are not justified on this record even under the

intermediate standard set forth in FCC v. League of Women

Voters, 468 U.S. 363 (1984). I would hold that these

restrictions are unconstitutional.
40 MINORITY TELEVISION PROJECT V. FCC

Chief Judge KOZINSKI, with whom Judge NOONAN joins,

dissenting:

The United States stands alone in our commitment to

freedom of speech. No other nation—not even

freedom-loving countries like Canada, England, Australia,

New Zealand and Israel—has protections of free speech and

free press like those enshrined in the First Amendment. 

These aren’t dead words on paper written two centuries ago;

they live. In many ways, the First Amendment is America. 

We would be a very different nation but for the constant

buffeting of our public and private institutions by a

maelstrom of words and ideas, “uninhibited, robust, and

wide-open.” N.Y. Times v. Sullivan, 376 U.S. 254, 270

(1964).

But the First Amendment isn’t self-executing; it depends

on the vigilance of judges in scrutinizing the multitude of

prohibitions, restrictions, burdens and filters that

government—federal, state and local—constantly seeks to

impose on speech and the press. The essence of First

Amendment vigilance is skepticism, not deference. 

Governments always have reasons for the things they do and,

for the most part, we accept those reasons as valid, even if

they’re not entirely persuasive. But prohibitions on speech

are different. Whether we engage in strict scrutiny, which

applies to most forms of speech, or intermediate scrutiny,

which my colleagues believe applies here, we don’t uphold

restrictions on speech if the government’s reasons do not, at

the very least, make sense.

The majority embraces every justification advanced by

the government without the least hesitation or skepticism, and

without giving proper weight to the true harms caused by the
MINORITY TELEVISION PROJECT V. FCC 41

speech restrictions in question. The opinion is certainly a fine

example of rational basis review, but if intermediate scrutiny

is to have any bite, we can’t just trot out all of the reasons the

government advances in support of the regulation and salute.

The Supreme Court showed us how intermediate scrutiny

should be done in FCC v. League of Women Voters, 468 U.S.

363 (1984). There, the Court found restrictions on speech

wanting because the government’s justifications were

speculative and any problems could be remedied by less

drastic means. Id. at 385–99. The majority here downplays

League of Women Voters as an obvious case of governmental

overreach, but it wasn’t so obvious to the four Justices who

wrote three separate dissents taking the majority to task for

failing to accord the speech restrictions sufficient deference. 

The majority cites the League of Women Voters opinion, but

its approach resembles far more the dissents.

That said, it’s hard to pinpoint exactly where the majority

goes astray. I will note what I consider to be errors, but doubt

I can persuade those not already on board. How could I?

With a standard as mushy and toothless as intermediate

scrutiny, it’s hard to be clearly wrong. A standard that calls

on us to distinguish among shades of gray provides scant

protection to speech: The very indeterminacy of the standard

enables—nay, encourages—judges to apply their own values. 

Speech that judges like gets protected, and speech that judges

don’t like gets the back of the hand. And judges like public

radio and television, while pretty much nobody likes

commercials. It’s hardly a fair fight, which is why I believe

it’s time to reconsider the applicability of intermediate

scrutiny to broadcast restrictions.
42 MINORITY TELEVISION PROJECT V. FCC

The Court plucked broadcast stations out of the

mainstream of First Amendment jurisprudence in 1969, when

the world of communications looked vastly different. The

only way to reach mass audiences in those days was through

the broadcast spectrum. And no medium of communication

approached the power of radio and television to reach into

people’s homes with sounds and images. Given the scarcity

of the broadcast spectrum and the absence of viable

alternative means of communication, the Court may have

justifiably believed that it was confronted with a market

failure—a bottleneck in the pathways of communication. It

may have served the First Amendment to correct that market

failure by keeping those pathways accessible to a multitude

of views, Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969),

safe for minors, FCC v. Pacifica Found, 438 U.S. 726 (1978),

and otherwise regulated.

I’m certainly not the first one to note that that

rationale—whatever its merits at the time—no longer carries

any force. See, e.g., FCC v. Fox Television Stations, 129 S.

Ct. 1800, 1819–22 (2009) (Thomas, J., concurring). It’s a

fine point whether judges of the inferior courts are bound by

Supreme Court decisions that the Court itself hasn’t yet

bothered to overrule, but whose rationale has been decimated

by intervening developments. I was once of the view that

only the Supreme Court may perform such operations, and

the rest of us must keep applying law we know to be wrong

until the Court tells us otherwise. In fact, I once wrote a

jeremiad warning my colleagues of the perils of treating a

Supreme Court case as overruled, when the Court itself

hadn’t told us so. In that case, we not only defied a six

decades-old Supreme Court precedent, but also dozens of

cases in every other regional circuit. See United States v.

Gaudin, 28 F.3d 943 (9th Cir. 1994) (en banc) (Kozinski, J.,
MINORITY TELEVISION PROJECT V. FCC 43

dissenting). And, as I predicted, the Court granted cert. and

. . . unanimously affirmed us. United States v. Gaudin,

515 U.S. 506 (1995). So I guess the lesson is, we must not

get ahead of the Supreme Court—unless we’re right.

I

The statute here draws a curious line between permissible

and impermissible speech: Advertisements for commercial

goods and services are prohibited, and so are those for

political candidates and issues. 47 U.S.C. § 399b. But

logograms and advertisements for goods sold by

non-commercial entities are permitted. Id. To determine

whether speech falls on the permitted or prohibited side of the

line, the regulator (here the FCC) must evaluate what the

speech says; it must evaluate speech based only on its

content. Moreover, as the majority recognizes, some of the

prohibited speech—namely political and issue advertising—

implicates the First Amendment’s core concern with ensuring

an informed electorate. We must therefore be doubly

skeptical: first, because the restriction is content-based and,

second, because we have traditionally treated some of the

prohibited speech with the greatest solicitude.

The majority declares itself satisfied with the evidence

supporting these prohibitions and distinctions, but the record

is much sparser and far more ambiguous than the majority

acknowledges. There is, for starters, almost nothing in the

congressional record compiled at the time the legislation was

adopted that speaks to the supposed dangers posed by

political and issue advertising. Many witnesses testified

about their fear that “[c]ommercialization [would] make

public television indistinguishable from the new commercial

or pay culture cable services.” Maj. op. 21 (citing Hearings
44 MINORITY TELEVISION PROJECT V. FCC

before the Subcomm. on Telecomms., Consumer Protection,

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

H.R. 3238 and H.R. 2774, 97th Cong. 149 (1981) (Larry

Sapadin, Executive Director, Association of Independent

Video & Filmmakers, Inc.) [hereinafter H. Hgs.]); see also H.

Hgs. at 323 (Walda W. Roseman, NPR). But

commercialization, as that term is commonly understood,

deals with commerce; it says nothing at all about advertising

for political candidates or on issues of public interest.

The majority also points to a few comments suggesting

that Congress feared the influence of political interests. Jack

Golodner, of the AFL-CIO, for example, advocated that

public broadcasting be “insulated from political, corporate,

and, for that matter, labor influence.” See id. at 112. 

Congressman Gonzales similarly emphasized the need to

“insulate public broadcasting from special interest

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

127 Cong. Rec. 13145 (1981). But such general concerns

about insulating public television from a variety of influences

say nothing about advertising. No one explained, much less

provided evidence, how allowing stations to accept paid

advertising from politicians would make them subject to

influence by those politicians. No one said a word about

influence by organizations that sponsor issue ads. Stray

comments, unsupported by facts, may be enough to support

legislation under the all-forgiving rational basis test, but

intermediate scrutiny surely calls for more.

There are other lacunae in the legislative record. No one

explains why political and issue ads are dangerous, if

advertising for non-commercial entities (including product

ads) isn’t. If legislators feared influence, why didn’t they

worry about stations falling under the sway of
MINORITY TELEVISION PROJECT V. FCC 45

non-commercial entities? The list of non-commercial entities

is vast. Many are poorly funded and non-controversial (such

as some museums and theater groups), but others are quite

wealthyand influential, including advocacygroups, churches,

foundations, think tanks and fraternal organizations. The

legislation forbids non-profit organizations from advertising

about matters of public concern or candidates for public

office. But nothing prevents them from advertising

themselves and the services they offer, and thereby

presumably influencing the programming of public broadcast

stations. If there are reasons why influence by the Westboro

Baptist Church, Heritage Foundation, Planned Parenthood,

National Rifle Association, Middle East Research Institute,

Family Research Council, Media Matters for America and

AARP poses less of a threat than influence by entities

commenting on issues of public importance or candidates for

public office, they are nowhere to be found in the legislative

record.

Even if we look at the evidence developed after the

legislation was passed—some of it decades later—there isn’t

much to support the ban on political and issue ads. The

majority cites a magazine article stating that in 2008, $2.2

billion was spent on political advertising. Maj. op. 29. So

what? Where’s the evidence that public broadcasters would

suffer adverse consequences if they were allowed to run such

ads? We can’t assume that political campaign ads will have

the same adverse effects attributed to commercial ads (more

on this later). Political ads are inherently more transitory and

episodic—centering on a particular campaign season, ballot

issue or candidate—so it’s far from clear that they would

present the same capture problem attributed to ads for

commercial products, whose producers are in the market for

the long haul. Nobody bothers to explain the connection, and
46 MINORITY TELEVISION PROJECT V. FCC

yet the majority sees no problem. This is hardly rational

basis review, much less intermediate scrutiny.

And the new evidence says nothing at all about issue ads. 

Neither of the expert affidavits (such as they are) even

mentions them. There is no magazine article suggesting there

are billions of dollars in issue ads gearing up to invade the

public airwaves. No one suggests that sponsors of issue ads

are waiting voraciously in the wings, yearning to pressure

public broadcast stations into changing their programming. 

Not a word. Nor is there a hint of a suggestion that issue ads

are out of keeping with the high-brow character of public

television. And, of course there can’t be, because issue ads

are about ideas. Where’s the beef?

Issue ads can be quite important from a First Amendment

perspective. Aside from generating revenue, which public

televison and radio stations can use to produce more and

better programming, issue ads can help educate the public

about some of the most significant questions of the day:

whether to take military action against foreign nations;

whether private individuals should have the right to carry

concealed weapons; whether minors are entitled to undergo

certain medical procedures without their parents’ consent;

whether we should have capital punishment, and for what

crimes; whether undocumented aliens should be given a path

to citizenship; how the tax burden should be allocated;

whether same-sex couples should be allowed to marry;

whether the government should be reading our e-mails or

listening to our phone calls . . . . The list is endless. How

exactly would public broadcasting as we know it be harmed

by allowing a limited number of paid issue ads that don’t

interrupt programming? My colleagues give the issue ban a

pass, based entirely on the momentum supposedly created by
MINORITY TELEVISION PROJECT V. FCC 47

the ban on commercial advertising. This isn’t intermediate

scrutiny; it’s zero scrutiny.

Which brings us to the one debatable issue—the ban on

advertisements for commercial products and services, which

was at the center of congressional concern when the 1981 Act

was passed. There was, indeed, much hand-wringing about

the dangers of commercialization, most of which the majority

references in its opinion. But there’s nothing that one might

call evidence. The legislation was designed to deal with the

problem of drastically diminished federal funding for public

broadcast stations, and the need for those stations to raise

money from other sources. Congress considered several

fund-raising possibilities, among them various flavors of

commercial advertising, including logograms, institutional

advertisements (promoting companies rather than specific

products) and commercial advertising. It’s fair to say that

none of the witnesses thought commercial advertising was a

good idea, and most thought it would significantly harm

public broadcasting.

Their concerns can be divided into roughly 4 categories:

(1) that adding commercial advertising would force changes

in program format and cause public broadcasting to lose its

distinctive character; (2) that broadcasters’ ability to raise

money commercially would cause subscribers and other

non-commercial sources of funding to withdraw support; (3)

that the need to raise revenue through commercial advertising

would necessitate changes in programming content, so as to

attract larger audiences, leaving no airtime to serve audiences

with less popular tastes; and (4) that there would be an

increase in various costs, ranging from increased labor costs

to the payment of additional royalties for copyrighted

materials to loss of various statutory benefits. In the
48 MINORITY TELEVISION PROJECT V. FCC

aggregate, the witnesses fretted, allowing commercial

advertising would dramaticallychange the character of public

broadcasting, defeating its mission of serving audiences not

served by commercial stations.

These are certainly weighty concerns, but what’s

remarkable about the testimony presented to Congress is that

they are nothing but concerns. The legislative record contains

no documentation or evidence; there are no studies, no

surveys, no academic analyses—nothing even as meaty as the

rather anemic expert reports introduced by the government in

our case. Sure, a lot of people worried that commercial

advertising would wreck public broadcasting, but people

worry about a lot of things that never come to pass. See, e.g.,

Peter Gwynne, The Cooling World, Newsweek, April 28,

1975, at 64. Where’s the proof, or even the rigorous analysis,

showing that the matters worried about were likely to occur?

It’s certainly not in the legislative record.

I know it’s difficult to prove with certainty what the

future will bring. See, e.g., Turner Broad. Sys. v.

FCC (Turner I), 512 U.S. 622, 665 (1994). Nevertheless, if

we’re conducting some level of heightened scrutiny, not

merely rational basis review, we should insist on something

more than a bunch of talking heads bloviating about their

angst. We should expect, for example, a study of how public

broadcast stations actually operate, how they differ in their

governance and structure from commercial stations and

whether those differences have any bearing on how they are

likely to respond if they were allowed to raise money through

commercial advertising. Or, witnesses might have presented

historical examples shedding light on the likelihood of future

behavior, or the experience of broadcast stations in other

countries. But there’s nothing like that; we’re left to take on
MINORITY TELEVISION PROJECT V. FCC 49

faith that the witnesses’ fears are justified. Such faith isn’t

consistent with the heightened scrutiny courts are supposed

to give legislation that abridges the freedom of speech.

In fact, there was a great deal that Congress could have

considered before resorting to such strict speech

restrictions—things we may not ignore in judging the

legislation under heightened scrutiny. We must consider

whether the speculation about the dangers of commercial

advertising makes sense in light of all the known

circumstances, just as the Court did in League of Women

Voters, 468 U.S. at 385–99. The concerns expressed by the

various witnesses about the dangers of commercial

advertising boiled down to the fear that it would change

public broadcasting into a more commercial enterprise, which

would disserve the segment of the public not being

adequately served by commercial broadcasting.

Does this make sense? Commercial broadcasters operate

the way they do precisely because they’re commercial

entities, whose purpose is to make profits for their

shareholders. Managers of commercial broadcast stations and

networks thus generally measure their success based on the

broad popularity of their shows and the revenue they generate

as a result of commercials and subscriptions. We call this

capitalism, and we’re perfectly content to have the laws of

supply and demand control the behavior of commercial

entities.

But we don’t observe non-commercial entities operating

by the same rules: Museums, charities, churches,

universities, hospitals, theater companies, musical ensembles

and a large variety of other organizations operate on a

non-profit basis, even as similar institutions (e.g., hospitals,
50 MINORITY TELEVISION PROJECT V. FCC

museums, universities, theaters) operate side-by-side with

them on a commercial basis. The lure of profit doesn’t cause

charitable institutions to abandon their missions and reinvent

themselves as commercial entities: The Red Cross doesn’t go

into the business of selling blood or charging for rescue

missions because there’s a quick buck in it; the Met doesn’t

swap programs with the Grand Ole Opry because it thinks it

can make more money playing country music; and food

banks don’t start charging prices that match those of the

supermarket across the street.

We understand perfectly well why this is so. Charitable

and civic organizations have charters and other organizational

constraints that tie them to their mission; they have a variety

of governmental regulations and incentives that keep them

from straying into the commercial arena; they have managers

and staff who are dedicated to the organization’s core

purpose; and they have boards of directors who supervise

them to ensure they stick to it. Just as important is what they

don’t have: shareholders who demand a return on their

investments. Charitable and civic organizations intrinsically

operate by different rules than commercial entities, and it

would never occur to us to pass laws prohibiting the Los

Angeles CountyMuseum of Art from selling automobiles and

dishwashers, even though the sale of such items might well

be profitable and allow the museum to acquire more and

better art.

It thus seems wholly irrational to make undocumented

claims about the likely behavior of public broadcast stations,

were they allowed to air advertisements, without first

considering the ways in which they differ from commercial

entities. And the differences are huge. To begin with, public

broadcasters must, by law, operate as non-profit entities. 
MINORITY TELEVISION PROJECT V. FCC 51

47 C.F.R. § 73.621. They must be owned by “a public

agency or nonprofit private foundation, corporation, or

association,” or by a municipality. 47 U.S.C. § 397(6). Any

station that isn’t owned or operated by a state, political

subdivision of a state or a public agency must have a

community advisory board. 47 U.S.C. § 396(k)(8)(A). In

fact, universities operate most public radio stations, while

non-profit community organizations and state government

agencies operate most public television stations. See

Corporation for Public Broadcasting, Who Operates the

Stations?, http://www.cpb.org/aboutpb/faq/operates.html.

Federal funding for public broadcasting stations is also

conditioned on their maintaining programming that is

consistent with the goals of the statute. Federal funds are

distributed bythe Corporation for Public Broadcasting, which

may make grants “for production of public television or radio

programs by independent producers and production entities

and public telecommunications entities, producers of national

children’s educational programming, and producers of

programs addressing the needs and interests of minorities,

and for acquisition of such programs by public

telecommunications entities.” 47 U.S.C. § 396(k)(3)(B)(i).

Finally, licenses for public broadcast stations aren’t

handed out on a first-come, first-served basis. In deciding

whether to grant an application for a license, the FCC favors:

(1) “local applicants . . . who have been local continuously for

no fewer than two years”; (2) applicants with “no attributable

interests . . . . in any other broadcast station”; (3) public or

private entities “with authority over a minimum of 50

accredited full-time elementary and/or secondary schools

within a single state”; (4) accredited public or private

institutions of higher learning “with a minimum of five full
52 MINORITY TELEVISION PROJECT V. FCC

time campuses within a single state”; and (5) organizations

that will “regularly provide programming for and in

coordination with [statewide educational] entit[ies]” for use

in schools’ curricula. 47 C.F.R. § 73.7003. Further, to

receive a license, the potential station owner must show that

the proposed station 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 television broadcast service.” 47 C.F.R.

§ 73.621.

None of those who presented “evidence”—better

characterized as Chicken Littleisms—about the calamitous

effects of allowing commercial (and political and issue)

advertising on public broadcasting took the slightest account

of these structural constraints. They all predicted that the lure

of advertising dollars would turn public broadcasters into

commercial broadcasters. But is it rational to believe that

public broadcast stations operated by municipalities,

universities and non-profit foundations would risk losing

federal funding (and perhaps their FCC licenses) by

abandoning their traditional viewership in order to compete

with commercial stations for advertising dollars? This strikes

me as about as likely as the Smithsonian turning itself into

Busch Gardens because it decides that roller coaster rides are

more popular than mastodon skeletons.

Still and all, had Congress been presented with evidence

that public broadcast stations could be diverted from their

mission by the lure of lucre, despite the multitude of

structural obstacles—had anyone even mentioned this as a

consideration—I might feel constrained to defer to the

congressional judgment. But no one paid any attention to the

obvious differences between non-profit and commercial
MINORITY TELEVISION PROJECT V. FCC 53

entities, and how they respond to market incentives—even

though there is a well-developed branch of economics that

deals with precisely this subject. See, e.g., Burton A.

Weisbrod, The Nonprofit Economy (1988); Susan RoseAckerman, Altruism, Nonprofits, and Economic Theory, 34 J.

Econ. Lit. 701 (1996); Joseph P. Newhouse, Toward a Theory

of Nonprofit Institutions: An Economic Model of a Hospital,

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

What’s more, we know for a fact that some of the

witnesses who testified before Congress in 1981 were wrong. 

Three of the witnesses, each of whom was worried sick about

the potentially catastrophic effects of commercialization on

public broadcast stations, also made dire predictions about the

pernicious use of logograms. Oy vey! Congress nevertheless

adopted that provision, and logograms have been in use in

public broadcasting for over a quarter of a century. And,

know what? The Cassandras were wrong; public

broadcasting as we know and love it has survived just

fine—perhaps a tad better, as underwriting, including

logograms, generates much-needed revenue for public

broadcasting. See NPR, Public Radio Finances,

http://www.npr.org/about-npr/178660742/public-radiofinances.

Congress knew that predictions about how commercial

advertising would affect public broadcast stations were

speculative. It therefore sought to develop empirical

evidence by authorizing an experiment that would allow

public broadcasters to air commercial advertising and

expanded underwriting credits. Atemporarycommission was

established to study the project and report back to Congress. 

The majority alludes to this study in its opinion, claiming that
54 MINORITY TELEVISION PROJECT V. FCC

it supports its position, Maj. op. 35–36, but I read the study

very differently.

While written in cautious and somewhat tentative terms,

the report contained a number of findings and conclusions

that severely undermine the doomsday predictions made by

witnesses before Congress and accepted as Gospel Truth by

the majority today. Specifically, the Commission found as

follows:

C “Limited advertising and expanded underwriting

credits both generated revenues in excess of

reported expenses.” Such revenues “equaled

about 8.1 percent of the stations’ total net

income.”

C “In several cases, advertising revenues permitted

stations to acquire specific programs that they

otherwise could not have afforded to

purchase. . . . The demonstration program did . . .

suggest that (at least where advertising or

expanded underwriting revenue is onlyone source

among many) no movement toward programming

changes resulted.”

C “[W]hile most subscribers and regular viewers

reported initially that they would watch less

public television if advertisements were present,

the second wave of the survey showed no

differences in the amount of time these groups

reported watching.”

C “Although a first wave response suggested that 20

to 40 percent of public television subscribers
MINORITY TELEVISION PROJECT V. FCC 55

might reduce their contributions, the second wave

of the opinion poll showed no significant

differences in the overall amount of giving

reported. Additionally, the poll showed an

increase in the number of subscribers who

reported that they would continue to contribute to

public television.”

C “Analysis of subscription revenues at

participating stations showed . . . [a]n increase in

total number of subscribers and contributors at all

stations compared with the previous year; [n]o

significant differences in total number of

subscribers or total contributions compared to the

control group [stations that did not carry

advertising]; [a] significant decline in average

contribution per subscriber at advertising stations

compared to the control group [which] suggests

that carriage of limited advertising may have

affected giving by large contributors. The decline,

however, also could reflect an influx of new

subscribers contributing smaller amounts to the

stations involved.”

It is true, as the majority notes, that the Temporary

Commission recommended maintaining the advertising ban,

despite these positive findings. Instead of raising revenue

through advertising,theCommission recommended enhanced

federal funding for public broadcasting—at least the majority

did. For this, they were taken to task by the Minority Report,

authored by the National Telecommunications and

Information Administration, an executive agency within the

Department of Commerce. The minority decried the fact that

“[t]he majority report . . . does not fully and fairly reflect the
56 MINORITY TELEVISION PROJECT V. FCC

overwhelmingly positive results of the advertising

demonstration experiment itself. . . . The majority, in short,

seems to have rejected the Congressional directive that we

come up with some new lyrics and appears content instead

simply to sing what by now is a very familiar song.” It’s a

song that echoes loud and clear in today’s majority opinion,

three decades later. Pointing out that “the public’s money is

the easiest of all money to spend—because it doesn’t seem to

belong to anyone,” the minority chastised the majority for

“continuation of the ‘cargo cult’ approach all have seen

before.” Ditto.

Here is how the Minority Report summarized the results

of the demonstration program: “The evidence produced by

the advertising demonstration program is almost completely

positive and affirmative. In no instance did the findings

indicate any significant adverse consequences with respect to

these matters.” The demonstration program “confirmed the

view that people watch and support public television because

they like and enjoy the programming, not just because it is

‘commercial free.’” The Commission’s polling data, for

example, revealed that “no significant audiences were in fact

alienated,” and that stations were able to generate significant

revenues. Although the minority conceded that there were

risks to allowing public broadcasters to air paid

advertisements, because of the significance of the potential

gains, it concluded that “the sounder course for the

TemporaryCommission would have been to place maximum

reliance on informed licensee discretion, and minimum

weight on the utility of Washington-imposed constraints.”

The significance of the demonstration program can’t be

overstated: It is the only evidence in the record about the

real-life consequences of allowing public broadcast stations
MINORITY TELEVISION PROJECT V. FCC 57

to run commercial advertisements. And the experience is

overwhelmingly positive. The demonstration program points

to yet another gap in the majority’s reasoning—the failure to

appreciate or accord any weight to the serious adverse free

speech consequences of the advertising ban. The record

suggests three:

First, as the demonstration program illustrates, stations

that receive paid advertising revenue can acquire or produce

programs that they could not otherwise afford. Thus, the loss

of advertising revenue can’t be dismissed as simply a loss of

money; it is, in fact, a loss of speech. We know for a fact

(from the demonstration program) that there are stations

wishing to run content that is consistent with their educational

and civic mission but can’t afford to do so. Advertising

revenue would allow public broadcast stations to acquire

content that will serve their audiences. Additional revenue

would also enable stations to produce local content, which is

one of the identified goals of public broadcasting, rather than

relying on content produced nationally or abroad.

Second, an infusion of additional non-governmental

revenue would help public broadcast stations gain

independence from the federal government. The record

before Congress, and the record in our case, makes it clear

beyond dispute that public broadcast stations are desperately

dependent on federal subsidies. Can broadcasters that are so

dependent on one source of revenue be truly free to speak in

ways that are critical of that source? Would public

broadcasters feel free to run a program exposing corruption

by, say, the chairman of the relevant appropriations

committee? My guess is that any station wishing to produce

such a program would be dissuaded from doing so. 

Washington is a small town with a long memory, and no one
58 MINORITY TELEVISION PROJECT V. FCC

wants to get into a grudge match with the goose that lays

golden eggs. The only true independence, the only truly free

speech, comes from having a multitude of funding sources, so

that none is so crucial that it can’t be dispensed with. 

Deriving a portion of revenue from commercial advertising,

along with other sources, can help secure that independence.

Third, advertisements are speech. Viewers often see

commercials as no more than annoying interruptions, but the

Supreme Court has recognized that advertisements often

carry important, sometimes vital, information. See, e.g.,

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (lawyer

advertising); Virginia State Bd. of Pharmacy. v. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976)

(prescription drug prices); Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) (beer labels). Advertisements can be for

annoying, useless or decadent products, but they can also

encourage people to get breast exams, http://goo.gl/MM6sV9;

join the peace corps, http://goo.gl/bfBmiy; get a smoke alarm,

http://goo.gl/wChmN0; prevent forest fires,

http://goo.gl/HrCxQG; vote, http://goo.gl/do9TCc, etc., etc. 

Excluding advertising from public broadcasting deprives

viewers of the opportunity to obtain such important

information.

The statute’s ban on issue advertising (for which,

remember, no one gives any justification at all, see p. 46

supra) is particularly troubling, as it deprives public

broadcast audiences of precisely the type of information

we expect an informed public to have: how to vote on

issues of public importance, http://goo.gl/6CRk3J,

http://goo.gl/XLrL9A, http://goo.gl/TL6BQU; the state of

public health, http://goo.gl/PXI7am; and the performance

and funding of our public schools, http://goo.gl/1BRQJu. 
MINORITY TELEVISION PROJECT V. FCC 59

Campaign ads can make or break presidential elections,

see, e.g., http://goo.gl/6oGrfy, http://goo.gl/fnFbkh;

http://goo.gl/v0Ju. Can we say that there is really a

substantial—or even a rational—justification for precluding

public broadcast audiences from being educated on issues of

public importance? Is it consistent with the principles of an

informed electorate to deprive those who watch public

television and listen to public radio of an important source of

information?

I understand the concern about turning public

broadcasting into something that is quite different from what

it is today. But why aren’t the structural constraints,

discussed above, sufficient to prevent this? And, if we fear

they’re not, there are many intermediate restraints, far short

of a complete prohibition. The Temporary Commission

suggested limiting the duration and placement of

advertisements, and ensuring diversityof funding (perhaps by

placing a limit on the percentage of revenue any station could

derive from any single source). Surely, anything is better

from a free speech perspective than an outright and total ban,

yet Congress seems to have given this possibility no

consideration. Nor does the majority.

I add only a few words about the two expert declarations

presented by the defendant in the district court; they deserve

no more. Assuming that it’s possible to supplement the

legislative record decades after the legislation is

passed—which to my mind is still an open question, see

Turner I, 512 U.S. at 671–74 (Stevens, J., concurring)—these

experts add nothing to the debate. The Ozier declaration

parrots the worries expressed by the witnesses before

Congress. He predicts that alternative sources of funding

would dry up, that stations would yield to pressure from
60 MINORITY TELEVISION PROJECT V. FCC

advertisers to change their programming, that foundations

would withdraw their support and that various concessions

now enjoyed by public television would be jeopardized. 

Ozier provides no new facts, just the same lame predictions

previously made by others—and largely refuted by the

experiment conducted by the Temporary Commission

following the passage of the 1981 legislation.

The Noll affidavit does add some new matter, mostly

irrelevant. For example, Noll comments adversely on the

“advertising of nutritionally undesirable food and . . . the

inclusion of violent content” in commercial stations, and

reports that “[r]esearch has shown that violent program

content causes antisocial behavior among children and food

advertising to children promotes an unhealthy diet that causes

obesity.” What this has to do with the matter under

consideration is unclear; it seems at times like Professor Noll

prepared his declaration for another client and then adapted

it to this case.

In the parts of the declaration that do bear on our case, he

pretty much embraces the cargo cult attitude alluded to by the

Minority Report of the Temporary Commission, calling for

“replac[ing] advertising with government subsidies as the

main source of revenues.” For this you need a Ph.D.?

Noll also concludes, without much support or analysis,

that public broadcast stations would have to change the nature

of their programming to generate significant revenue. This

conclusion is flatly contradicted by the experiment conducted

by the Temporary Commission, which found that stations

could gain substantial revenue without changing their content. 

See p. 54–55 supra. Noll doesn’t mention the Temporary

Commission’s Report, preferring to rely on his own intuition
MINORITY TELEVISION PROJECT V. FCC 61

rather than inconvenient real-world evidence. Nor does Noll

discuss, or even acknowledge, the structural constraints that

would likely prevent public broadcast stations from

reinventing themselves as commercial stations. I might not

go so far as to say the Noll report is irrational, but it certainly

doesn’t carry the kind of heft—in light of all the other

available evidence—that the Supreme Court’s analysis in

League of Women Voters demands.

In sum, the evidence presented by the government in

support of these speech restrictions simply doesn’t pass

muster under any kind of serious scrutiny—the kind of

scrutiny we are required to apply when dealing with

restrictions on speech. Even if intermediate scrutiny

applies—and I doubt that it does, see pp. 61–64 infra—there

is simply not enough there to satisfy a skeptical mind that the

reasons advanced are rational, let alone substantial.

II

Because “[t]he text of the First Amendment makes no

distinctions among print, broadcast, and cable media,”

Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,

518 U.S. 727, 812 (1996) (Thomas, J., concurring in the

judgment in part), Red Lion and Pacifica represent a jarring

departure from our traditional First Amendment

jurisprudence. As Justice Thomas explained in his lucid

concurrence in Fox Television, “Red Lion and Pacifica were

unconvincing when they were issued, and the passage of time

has only increased doubt regarding their continued validity.” 

129 S. Ct. at 1820. Justice Thomas’s words echo the views

of Chief Judge Emeritus Harry Edwards in Action for

Children’s Television v. FCC, 58 F.3d 654, 673 (D.C. Cir.

1995) (en banc) (Edwards, J., dissenting): “There is no
62 MINORITY TELEVISION PROJECT V. FCC

justification for this apparent dichotomy in First Amendment

jurisprudence. Whatever the merits of Pacifica when it was

issued[,] . . . it makes no sense now.”

Today, Red Lion looks even more quaintly archaic than at

the time Judge Edwards and Justice Thomas made their

observations. To start, the broadcast spectrum has vastly

expanded, due in part to advances in technology, including

the “switch from analog to digital transmission, which . . .

allow[s] the FCC to ‘stack broadcast channels right beside

one another along the spectrum.’” Fox Television, 129 S. Ct.

at 1821 (Thomas, J., concurring) (quoting Consumer Elecs.

Ass’n v. FCC, 347 F.3d 291, 294 (D.C. Cir. 2003)). And

“traditional broadcast television and radio are no longer the

‘uniquely pervasive’ media forms they once were. For most

consumers, traditional broadcast media programming is now

bundled with cable or satellite services.” Id. at 1822. This

trend has continued and accelerated, with the delivery of

much content by way of cellular networks and the internet. 

See, e.g., Jim Edwards, People Now Spend More Time

Watching Their Phones than Watching TV, Business Insider

(Aug. 15, 2012), http://goo.gl/jtrVNk; AJ Marechal, CW

Offers ‘Husbands,’ More Web Fare from Digital Studio,

Variety.com (Mar. 27, 2013), http://goo.gl/Cww32h; Maura

McGowan, Original Series Help Netflix Turn a Tidy Profit,

Adweek (Apr. 23, 2013), http://goo.gl/9oy0gb; Procon.org

and Pivot.tv Join Forces on Critical Thinking Campaign,

Procon.org (Sept. 13, 2013), http://goo.gl/ibGN1t; Jon

Robinson, New ‘Madden’ Includes NFL SundayTicket,ESPN

Playbook (May 17, 2013), http://goo.gl/gKJRVZ; Alex

Stedman, Disney Invites Kids To Bring iPads to Theaters for

‘The Little Mermaid’ Re-Release, Variety.com (Sept. 11,

2013), http://goo.gl/YjEfUw; Esther Zuckerman, Netflix Has

Done It Again: ‘Orange Is the New Black’ Has ‘Astounded’
MINORITY TELEVISION PROJECT V. FCC 63

the Critics, The Atlantic Wire (July 2, 2013),

http://goo.gl/mML64G.

For reasons explained at length above, I don’t think the

standard of review matters very much to the outcome in this

case; the restrictions on advertising by public broadcast

stations fail any standard of review more rigorous than a

straight-face test. But under an intermediate standard of

review, the result is highly unpredictable, as judges of

intelligence and good faith can view the situation very

differently. This isn’t because judges have failed; the

standard itself promotes uncertainty. Because there are no

absolutes, judges are left to exercise their judgment based on

their personal experiences and predilections.

“Liberty finds no refuge in a jurisprudence of doubt.” 

Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833, 844 (1992). Nowhere is this truer than in the

case of speech, which is especially vulnerable to uncertainties

in the law. This is why we have special doctrines applicable

to speech only. For example, we allow those whose rights

haven’t been violated to bring suit, and we’ll strike down a

law, even if it has some constitutional application, if it’s

substantially overbroad. See, e.g., Broadrick v. Oklahoma,

413 U.S. 601 (1973); Dombrowski v. Pfister, 380 U.S. 479

(1965); see also N.Y. Times v. Sullivan, 376 U.S. 254, 272

(1964) (freedom of speech requires “breathing space”

(internal quotation marks omitted)). It is our constitutional

duty to make the law of free speech clear and predictable.

To the extent Red Lion was justified by the state of

technology at the time it was written, it’s certainly not

justified by the state of technology today. The bottlenecks

and monopolies that existed in the field of mass
64 MINORITY TELEVISION PROJECT V. FCC

communications when Red Lion was decided no longer exist. 

It’s one of the oldest maxims of the common law that once

the reason for a rule ceases, the rule itself disappears. It’s a

maxim the Supreme Court recognizes and expects inferior

courts to honor. See Funk v. United States, 290 U.S. 371,

385–87 (1933). We shouldn’t turn a blind eye to the vast

technological changes in the field of mass communications

that make broadcasting less significant and pervasive every

day. We not only have the right, but also the constitutional

duty, to brush aside a precedent—venerable though it may

be—when its rationale has been hollowed out as if by

termites.

* * *

I would strike down as unconstitutional the statute and

corresponding regulations that prohibit public broadcast

stations from carrying commercial, political or issue

advertisements. Iwould reverse the district court and remand

with instructions that summary judgment be granted in favor

of the plaintiffs. And I would set public television and radio

free to pursue its public mission to its full potential. We’d all

be better off for it.