Minority Television Project v. FCC

The ban on public broadcasters’ transmission of public issue and political advertisements under 47 U.S.C. § 399b fails intermediate scrutiny and thus violates the First Amendment, because the government failed to prove that its fear of harm to the substantial interest of ensuring high-quality educational public broadcasting is “real, not merely conjectural.”

KMTP-TV, operated by Minority Television Project (“Minority”), is one of the few public broadcasting stations in the United States that does not receive funding from the Corporation for Public Broadcasting. However, because of its status as a public broadcast station, Minority is subject to 47 U.S.C. § 399b, which prohibits public broadcast stations from transmitting three types of “advertisements,” as defined under the statute. After determining it was appropriate to analyze each section of the statute separately, the Court found that subsection 399b(a)(1), which prohibits advertising by for-profit entities for their goods and services, passes intermediate scrutiny under the First Amendment. However, subsections 399b(a)(2) and (a)(3), which prohibit public issue and political advertising, fail intermediate scrutiny. The Court agreed that the government has a substantial interest in maintaining high-quality educational programming on public stations, which it fears would be undercut if public broadcast stations were allowed to transmit paid commercial, public issue, and political advertisements. As opposed to subsection 399b(a)(1), however, the Court found no evidence to connect the ban on speech under subsections 399b(a)(2) and (a)(3) to the government’s interest in maintaining certain types of programming. AFFIRMED in part, REVERSED in part, and REMANDED.