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Minority Television Project v. FCC & USA, No. 09-17311 (9th Cir.)

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Released: July 3, 2012
Case: 09-17311 06/29/2012 ID: 8232371 DktEntry: 34 Page: 1 of 74
No. 09-17311
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINORITY TELEVISION PROJECT,
Plaintiff-Appellant,
LINCOLN BROADCASTING, INC.,
Intervenor,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF
AMERICA,
Defendants-Appellees.

On Appeal from the United States District Court
for the Northern District of California,
Case No. 06-2699

PETITION FOR REHEARING OR REHEARING EN BANC

__________________________________


STUART F. DELERY


Acting ssistant Attorney General
MARK B. STERN

(202) 514-5089
SAMANTHA L. CHAIFETZ
Attorneys, Appellate Staff
Civil Division
Department of Justice, Room 7248
Washington, D.C. 20530

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TABLE OF CONTENTS


Page
INTRODUCTION AND SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Panel Majority Applied Erroneous Legal Standards
And Misinterpreted The Record To Reach A Result That Threatens
The Noncommercial, Educational Character Of Public Broadcasting.. . . . . . . . 9
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases:

Pages


City of Cincinnati v. Discovery Network,
507 U.S. 410 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 8, 14
F.C.C. v. League of Women Voters,
468 U.S. 364 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Minority Television, Inc. v. FCC,
649 F. Supp. 2d 1025 (N.D. Cal. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 15
Turner Broad. Sys. v. F.C.C.,
520 U.S. 180 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 7, 8, 15

Statutes:

47 U.S.C. § 399a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
47 U.S.C. § 399b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
47 U.S.C. § 399b(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
47 U.S.C. § 399b(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 7
47 U.S.C. § 399b(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 6, 15
47 U.S.C. § 399b(a)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 6, 15
47 U.S.C. § 399b(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Regulations

:
17 Fed. Reg. 4062 (1952). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
47 Fed. Reg. 7558 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-ii-

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In re...Television Broad.,
41 F.C.C. 148 (1952). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
In re...Noncommercial Educ. FM & Television Broad. Svc.,
26 F.C.C. 339 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
In re...Noncommercial Nature of Educ. Broad. Stations,
86 F.C.C. 2d 141 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
In re...Noncommercial Nature of Educ. Broad. Stations,
90 F.C.C. 2d 895 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
F.C.C. Order No. 12-44 (Apr. 27, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Legislative Materials:

Hearings Before the SubComm. on Telecommns.,
Consumer Protection, and Finance of the H. Comm. on
Energy and Commerce on H.R. 3238 and H.R. 2774,
97th Cong., 1st Sess. (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
127 Cong. Rec. 13145 (June 22, 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
H.R. Rep. No. 97-82, 97th Cong., 1st Sess. (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-iii-

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INTRODUCTION AND SUMMARY

The panel majority’s ruling presents the following question of exceptional
importance: whether the federal statutory provisions barring public broadcast stations
from selling airtime for advertisements promoting or opposing candidates for office
(“candidate ads”) or advocating with respect to public issues (“issue ads”) violate the First
Amendment. 47 U.S.C. § 399b(a)(2) and § 399b(a)(3). The majority’s judgment,
invalidating the provisions, threatens the fundamental nature of public broadcasting.
Since 1952, the Federal Communications Commission (“FCC”) has reserved
certain television broadcasting channels for noncommercial educational broadcast
stations, commonly known as public television stations. These reserved stations are
licensed at no charge to nonprofit broadcasters to foster programming (such as
educational shows for children) that is not readily available on commercial stations, which
depend on advertising revenues and tailor their programming to maximize ad
profitability. As the FCC explained in 1952, the government’s policy seeks to ensure “the
establishment of ... genuinely educational” broadcasting services, which is “programming
of an entirely different character from that available on most commercial stations.” 41
F.C.C. 148, 166 ¶ 57 (1952). Accordingly, from the start, FCC regulations prohibited
public television licensees from airing any form of paid advertising, and allowed only for
the identification of program underwriters by name. See 17 Fed. Reg. 4062 (1952); 47 Fed.
Reg. 7558 (1970).
1

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In 1981, after lengthy deliberation, the FCC relaxed slightly the restrictions on
nonpromotional underwriting announcements, but concluded that the ban on advertising
remained central to the character of public broadcasting and thus should be maintained.
86 F.C.C. 2d 141 (1981). Later that year, in the legislation at issue here, Congress
effectively codified the FCC’s decision, but exempted ads for nonprofit entities from the
general ban. 47 U.S.C. §§ 399a, 399b. The legislation otherwise preserved the prohibition
on advertising on public television that had been in place for three decades by expressly
barring ads for for-profit entities (“for-profit ads”) as well as candidate ads and issues ads
(together, “political ads”). 47 U.S.C. § 399b(a)(1)-(3), (b).
On April 12, 2012 – three decades after the 1981 legislation was enacted – a panel
of this Court addressed the constitutionality of § 399b’s advertising prohibitions.
Applying intermediate scrutiny, the panel unanimously recognized the government’s
substantial interest in fostering noncommercial, educational broadcasting, and agreed that
§ 399b validly advances that interest insofar as it bars ads promoting for-profit entities.
Slip Op. 3944-3946. The panel divided as to whether § 399b’s bar on political ads is
similarly justified. Judges Bea and Noonan held it is not; Judge Paez disagreed.
Judge Bea’s analysis rested on erroneous assessments of the relevant law and facts.
Quite contrary to Turner Broadcasting Systems v. F.C.C., 520 U.S. 180 (1997) (“Turner II”),
he maintained that only evidence in the record before Congress at the time the legislation
was enacted – and not any additional evidence compiled in the district court – could be
2

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relied upon. Slip Op. 3947. He also misconstrued Cincinnati v. Discovery Network, 507 U.S.
410 (1993), an inapposite commercial speech case, to impose a novel requirement: he
insisted that Congress was required to establish that ads for nonprofit entities (not barred
by § 399b) posed a lesser threat to public broadcasting than political ads. Slip Op. 3940.
Moreover, Judge Bea failed to appreciate the record evidence and disregarded the
deference due reasonable legislative judgments. See Turner II, 520 U.S. at 196.
Judge Noonan explicitly rejected Judge Bea’s analyses of Turner II and Discovery
Network, id. at 3956-57, but nonetheless declared the restrictions on political ads invalid.
He noted that “there was no evidence before Congress as to the impact of political
speech on public broadcasting because no such speech had been permitted,” and instead
“what Congress had before it were educated guesses by persons familiar with the media.”
Id. at 3956. Although he concluded that reasonable predictions provided an adequate
basis for the ban on for-profit ads, he found such predictions insufficient to justify the
ban on political ads. He identified no sound basis for this distinction. Id. at 3957.

Dissenting, Judge Paez explained that the Court was not restricted to evidence in
the record before Congress, id. at 3968-70, and, further, found an ample basis in the
record for upholding the ban on political ads. Slip Op. 3962-64, 3967-70. Judge Paez
explained that the narrow exception allowing ads for nonprofit entities does not – as a
matter of law or fact – cast any doubt on the continuing vitality of § 399b’s advertising
prohibitions. In any event, Judge Paez found that the government had produced evidence
3

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that “political advertising presents a greater harm to public broadcasting than non-profit
advertising.” Slip Op. 3967; id. at 3965-68.
As Judge Paez observed, “[f]or almost sixty years, noncommercial public
broadcasters have been effectively insulated from the lure of paid advertising,” and the
majority’s judgment, if allowed to stand, “will disrupt this policy and could jeopardize the
future of public broadcasting.” Slip Op. 3960. At bottom, the judgment – setting aside
restrictions on noncommercial broadcasters that have been fundamental to the
preservation of the character of public broadcasting – reflects a misunderstanding of First
Amendment principles. We respectfully ask that the Court rehear the panel’s decision
insofar as it holds 47 U.S.C. § 399b(a)(2) and § 399b(a)(3) unconstitutional.

STATEMENT

A.

The FCC reserves broadcast frequencies for noncommercial stations to foster
the provision of “programming of an entirely different character from that available on
most commercial stations.” 41 F.C.C. at 166 ¶ 57.1 The FCC has long recognized that its
objective – “the establishment of a genuinely educational type of service” – would be
undermined if noncommercial stations were allowed to “operate in substantially the same
manner as commercial [stations].” Id. ¶ 57. Accordingly, since 1952, regulations have
barred public stations from accepting any paid advertising. 17 Fed. Reg. 4062 (1952). The
1 The government also makes funds available to these stations through the
Corporation for Public Broadcasting. Slip Op. 3925.
4

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FCC also strictly limited the content of underwriting announcements: a public station
could neither describe a sponsoring entity nor mention any of its products. E.g., 26 F.C.C.
339, ¶¶ 8-10 (1970).
In 1981, after a two-year study of the issue, the FCC concluded that some of the
rules restricting donor announcements could be relaxed, but that the general ban on
advertising remained necessary to protect the noncommercial nature of public
broadcasting. 86 F.C.C. 2d at 141. The FCC found that the differences in the
programming offered by noncommercial and commercial broadcasters reflected their
disparate funding sources, with the former relying on government support and donations
and the latter relying on advertising revenues and thus subject to significant “marketplace
pressures.” Ibid. The FCC found it essential that “the programming decisions of public
broadcasters” be insulated “from the normal kinds of commercial market pressures under
which broadcasters in the unreserved spectrum usually operate.” Id. at 142.
Later that year Congress enacted legislation that largely codified the FCC’s order.
47 U.S.C. §§ 399a, 399b. It prohibits public broadcasters from airing “advertisements,”
defined as:
any message or other programming material which is broadcast or otherwise
transmitted in exchange for any remuneration, and which is intended–
(1) to promote any service, facility, or product offered by any person who is
engaged in such offering for profit;
(2) to express the views of any person with respect to any matter of public
importance or interest; or
(3) to support or oppose any candidate for political office.
5

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47 U.S.C. § 399b(a); see id. § 399b(b). Section 399b, unlike the FCC’s order, does not
prohibit advertising for the services, facilities, or products of nonprofit entities.2

B.

Plaintiff Minority Television, the licensee of a public broadcast station, has
challenged the constitutionality of the statutory provisions prohibiting public
broadcasters from airing for-profit ads, candidate ads, and issue ads. 47 U.S.C.
§ 399b(a)(1)-(3), (b). The district court rejected plaintiffs’ arguments, stressing that a
“half-century of experience in both public broadcasting and commercial broadcasting”
supported Congress’s “reasoned legislative judgment” that these restrictions protect the
fundamental distinction – in purpose and operation – between public and commercial
television. 649 F. Supp. 2d 1025, 1036 (N.D. Cal. 2009). The court concluded that
Congress made a “reasonable, predictive legislative judgment” when it determined that,
if permitted, for-profit and political advertising would place “commercial pressures” on
public broadcasters that would threaten their unique programming, and – as such – their
existence. Id. at 1046.
A panel of this Court affirmed in part and reversed in part. The panel held
2 The FCC subsequently observed that Congress sought “to increase non-
Federal support for the public telecommunications media,” and “as such the
allowance of promotional announcements sponsored by non-profit organizations may
prove to be an additional revenue source.” 90 F.C.C.2d 895, 899 (1982). But the FCC
stressed: “We are also cognizant of Congress’ intent to preserve the essentially
noncommercial nature of the public broadcasting service—a service that is responsive
to the overall public as opposed to the sway of particular political, economic, social or
religious interests.” Id.
6

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unanimously that the broadcast regulations were properly reviewed under the
intermediate scrutiny standard set out in F.C.C. v. League of Women Voters, 468 U.S. 364,
380 (1984), and that Congress validly banned advertisements by for-profit entities. A
majority of the panel – Judge Bea and Judge Noonan – concluded that the restrictions
on political ads did not survive the same scrutiny.
Judge Bea emphasized that Congress did not make the prohibition on ads
promoting for-profits, 47 U.S.C. § 399b(a)(1), applicable to nonprofits. He maintained
that, under Discovery Network, Congress was required to compile evidence establishing that
political advertising would pose a greater threat to public television than nonprofits’
advertising. Slip Op. 3947.3 He also insisted that Turner II required that the necessary
evidence have been presented to Congress at the time the legislation was enacted. Id. at
3947. As a result, although Judge Bea acknowledged that advertising dollars from “groups
or individuals who wish to air public issue or political advertisements are indeed the types
of special interest influence that could distort [public television programming],” he found
it fatal that Congress’s record lacked specific evidence of the “relative motivations” of
political advertisers. Id. at 3949 (observing that “the only evidence before Congress dealt
3 Section 399b distinguishes between ads promoting the services, facilities, or
products of for-profit and nonprofit entities, barring only the former; all candidate ads
and issue ads are barred regardless of the identity of the advertiser. Although Judge
Bea considered the possibility of advertising by nonprofits highly relevant to his
analysis of the constitutionality of the ban on candidate and issue ads, he did not
address it in upholding the ban on for-profit ads.
7

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with the motivations of commercial advertisers or advertisers generally”).
Judge Noonan expressly disagreed with much of Judge Bea’s analysis, including
his readings of Discovery Network and Turner II. Slip Op. 3956-57. Nonetheless, Judge
Noonan declared the restriction on political ads invalid because evidence “ha[d] not been
presented to Congress” that allowing such advertising to be sold would harm public
broadcasting. Id. at 3957.4 He acknowledged that it would have been impossible for the
legislative record to include evidence of the effects of such ads because none had ever
been permitted, but he concluded that Congress’s predictive judgment needed to be
based on more than “educated guesses by persons familiar with the media.” Ibid.
Judge Paez dissented from the majority’s invalidation of the restrictions on political
ads. Like Judge Noonan, Judge Paez rejected Judge Bea’s suggestion that Congress could
not constitutionally bar political advertising absent evidence that such advertising posed
a greater threat to public broadcasting than nonprofit advertising. Slip Op. 3965-66. Judge
Paez concluded, in any event, that if the Constitution required such evidence, it had been
supplied by the government. Id. at 3966-68; see also id. at 3969 (rejecting the suggestion
that the Court’s analysis might be restricted to the record before Congress). Judge Paez
4 Judge Noonan observed that the plurality in Turner II “rel[ied] on evidence
introduced on remand to the district court – evidence obviously not before Congress
when it enacted the statute in question.” Slip Op. 3957. Nonetheless, like Judge Bea,
he found fault with the lack of “evidence before Congress.” Ibid. (suggesting that this
is because the provisions at issue restrict the sale of airtime for political ads, but
offering no clear basis for this suggestion).
8

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noted, in particular, that in view of the “tremendous sums spent on political campaign
advertisements,” it would be “untenable” to think that such advertising would not exert
significant market pressure and “pose[] a danger to public broadcasting.” Slip Op. 3963
n.4; see also id. at 3949-50 (Bea, J.) (acknowledging evidence that $2.2 billion was spent on
political advertising on broadcast television in 2008 but finding this fact irrelevant).5

ARGUMENT

The Panel Majority Applied Erroneous Legal Standards And Misinterpreted
The Record To Reach A Result That Threatens The Noncommercial,
Educational Character Of Public Broadcasting.

A.

Federal law has consistently precluded public television licensees from airing
paid advertisements. The reasons for this are straightforward and uncontested: public
broadcasters provide educational programming (particularly high-quality children’s
programming) that is not available on commercial stations and subjecting public stations
to advertisers’ market pressures would undermine their ability to provide such
programming.
The government’s undisputed evidence – approvingly summarized by Judge Bea
– showed that “advertisers wish to air commercials on television programs with high
numbers of viewers,” and thus “‘[a] competitive, advertiser-supported television system
leads to an emphasis on mass entertainment programming.’” Slip Op. 3945 (quoting
5 See also F.C.C. Order No. 12-44, ¶ 32 & n.91 (Apr. 27, 201200 (noting that
broadcasters earned “an estimate $2.29 billion in 2010” from political advertisements
and that political ads are predicted to yield “roughly $3.2 billion” this year).
9

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expert report of Stanford Professor Roger G. Noll); see 649 F. Supp. 2d at 1034. By
contrast, public broadcast stations – insulated from the “commercial pressures faced by
commercial stations” – provide educational programs that “‘do not attract sufficient
viewership to attract substantial advertising revenue.’” Slip Op. 3945-46 (quoting the
declaration of Lance Ozier, the former president of WGBH, the largest producer of PBS
programming).6 The witnesses before Congress in 1981 and the additional evidence
submitted by the government in the district court all provided ample support for the
same conclusion: that § 399b’s restrictions on advertising – including the restrictions on
political ads – are necessary to preserve the character of public broadcasting, as distinct
from ad revenue-dependent commercial broadcasting.7

B.

Judge Bea recognized that the record before Congress addressed the threat
posed by “advertisers generally,” Slip Op. 3949, and he acknowledged that the evidence
could reasonably apply to political advertisers. He turned the rule of deference to
6 As Judge Bea noted, public television stations are “the primary source of
educational children’s programming in the United States,” Slip Op. at 3943;
commercial stations “offer ‘children’s programming only if it can be used to market
products to children,’ despite parents’ desire to have their children watch educational
television programming.” id. at 3945 (quoting Noll). See 649 F. Supp. 2d at 1035.
7 Ozier predicted, for example, that, if public broadcasters were subject to the
same market dynamics as commercial stations, it would be “‘economically
impossible’” to continue to provide the niche, educational programming they
currently offer. Slip Op. 3945-46. The sale of airtime for advertising would turn public
stations into “‘direct competitors of for-profit commercial stations,’” 649 F. Supp. 2d
at 1041 (quoting Noll), and erode donor and underwriter support, which are premised
on the noncommercial nature of public television, id. at 1040 (citing Ozier).
10

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legislative judgment on its head, however, by declining to uphold the ban on political ads
on this wholly proper basis.
As Judge Bea recognized, political advertisers can be expected to behave much like
other advertisers. Id. at 3953 (stating that “it stands to reason that ... public issue and
political advertisers...would generally seek the largest audience possible”). Indeed, Judge
Bea acknowledged that the “temptation of receiving advertising dollars from groups or
individuals who wish to air public issue or political advertisements are indeed the types
of special interest influences that could distort the nature of public affairs programming
offered on public television.” Id. at 3949. He even noted that “[e]specially in an election
season, we see how a news broadcaster may be tempted to alter the content of its public
affairs programming if it thinks it can garner additional advertising dollars from one or
another campaign, SuperPAC, or advocacy group by doing so.” Ibid. (acknowledging
statements in the congressional record expressing concern for “insulat[ing]” broadcasters
from political influences). These commonsense observations cannot be reconciled with
Judge Bea’s conclusion that “neither logic nor evidence supports the notion that public
issue and political advertisers are likely to encourage public broadcast stations to dilute
the kind of noncommercial programming whose maintenance is the substantial interest
that would support the ad bans.” Id. at 3947. Such clear error merits rehearing.
Moreover, the panel majority’s analysis reflects a fundamental misunderstanding
of the ways in which incentives to maximize ad revenue can affect programming
11

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decisions. Judge Bea declared, for example that “[t]here is virtually no way that [political
advertisements], if allowed, would negatively affect the nature of children’s programming
on public television stations,” because “the large majority of viewers of these programs
are legally prohibited from voting, so there is virtually no incentive for a station to alter
its children’s programming to suit the preferences of a political candidate or issue group.”
Slip Op. 3948. The concern, however – as Judge Paez explained – is that, in pursuit of
advertising revenue, public broadcasters would alter their programming – for example,
by reducing the quantity of unprofitable children’s programming and other educational
content – to attract a larger audience that is the target of political advertisers. Id. at 3967
n.8. Public television would then more closely resemble commercial television – which,
as Judge Bea recognized, provides little programming for children. Id. at 3943.
The panel majority seems to have erroneously interpreted the repeated references
to “commercialization” in the record before Congress to refer only to advertisements
offering “commercial” services. For example, Judge Bea noted that the American
Foundation for the Blind and by the Association of Independent Video and Filmmakers
expressed concerns that the “commercialization of public broadcasting” would reduce
programming for diverse audiences and ultimately defeat the aims of public television.
Slip Op. 3945, 3950-51. Judge Bea misconstrued this testimony to refer exclusively to the
sale of public television airtime for advertisements “encourag[ing] viewers to buy
commercial goods and services.” Slip Op. 3950 (emphasis added). He wrote: “This does
12

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nothing to support the bans in subsections (a)(2) and (a)(3), because public issue and
political advertisements pose no threat of ‘commercialization’ [of public broadcasting].”
Ibid.
“Commercialization” refers to rendering a good – here, airtime on public television
– for sale. The witnesses before Congress opposed the “commercialization of the public
broadcasting system,” Hearings before the Subcomm. on Telecommns, Consumer
Protection, and Finance of the H. Comm. on Energy and Commerce on H.R. 3238 and
H.R. 2774 (“House Hearings”), 97th Cong. 1st Sess. 148 (1981) – not merely, as Judge
Bea suggested, ads that “encourage viewers to buy commercial goods and services.” Slip
Op. 3950. For example, AIVF testified that it was “deeply concerned and dismayed by
those provisions ... that would sell public television to the highest bidder,” explaining that
“[t]he purpose of advertising is simply to sell – a product or an image.” House Hearings
at 148-150.8
Concern about commercialization and the resulting threat of special interest
influences on public broadcasting was also reflected in statements by Congressman
Gonzalez and in a House Report. See 127 Cong. Rec. 13145 (June 22, 1981) (remarks of
Rep. Gonzalez) (stating that the structure of public broadcasting––based on member
8 As Judge Bea noted, AIVF’s testimony “stated unequivocally:
‘commercialization will make public television indistinguishable from the new
commercial or pay culture cable services. And public television will fail.’” Slip Op.
3945 (quoting AIVF).
13

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contributions, program underwriting, and the availability of government funding through
the CPB––is designed to “insulate public broadcasting from special interest influences
– political, commercial, or any other kind”); H.R. Rep. No. 97-82, 97th Cong., 1st Sess.
16 (1981) (emphasizing the need for “insulation of program control and content from the
influence of special interests – be they commercial, political, or religious”).9 Judge Bea
gave short shrift to such evidence of Congress’s intent, and doing so was legal error. Slip
Op. 3948-49.

C.

In addressing the constitutionality of the bans on political ads, Judge Bea
devoted considerable attention to the absence of a statutory prohibition on nonprofits’
ads for goods and services. As Judge Noonan and Judge Paez recognized, this distinction
– which Judge Bea used to frame his analysis – is without legal significance. Slip Op.
3956, 3965 (explaining that Judge Bea erred in attempting to import such an evidentiary
requirement from Discovery Network, a decision invalidating a commercial city ordinance
found to be so underinclusive as to be ineffective in advancing the government’s asserted
interest).
In any event, it was reasonable for Congress to conclude that it did not need to bar
9 A number of witnesses before Congress also addressed the proposed
legislation’s funding provisions and remarked on the importance of ensuring
insulation from political influence or interference. See, e.g., House Hearings at 112
(Statement of Jack Golodner, AFL-CIO) (“[I]f public broadcasting is to perform its
role ... then sufficient public funding must be made available so that to the furthest
extant humanly possible, it is insulated from political [and ] corporate ... influence.”).
14

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nonprofits’ ads to insulate public television from market pressure, and 30 years of
experience have borne out that judgment. As Judge Paez observed, “non-profit
announcements on public broadcasts are virtually negligible[.]” Slip Op. 3967. Citing the
declaration of Ozier, the former President of WGBH, Judge Paez explained that the
dearth of nonprofit advertisers means there is “only a minimal risk that stations will seek
to boost viewership in order to increase advertising sales.” Id. at 3964 (citing Ozier). As
the district court and Judge Paez concluded, the record before Congress substantiated its
determination that an express ban on nonprofit advertising was not essential to advance
its objective. 649 F. Supp. 2d at 1046; Slip Op. 3963-64.
The panel majority’s faulty assessment of the record was compounded by their
refusal to consider developments of the past three decades that further support
Congress’s initial judgment. Judge Bea believed that Turner II precluded reliance on post-
enactment evidence, but the Turner II plurality looked at that very type of evidence.
Indeed, the Court had earlier remanded the matter for the express purpose of allowing
the government to proffer additional evidence in support of the statute. Turner II, 520
U.S. at 200-10. This clear error of law merits rehearing.

CONCLUSION

The Court should rehear the panel’s decision insofar as it holds 47 U.S.C.
§ 399b(a)(2) and § 399b(a)(3) unconstitutional.
15

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Respectfully submitted,
STUART F. DELERY


Acting Assistant Attorney General
MARK B. STERN

(202) 514-5089
SAMANTHA L. CHAIFETZ
Attorneys, Appellate Staff
Civil Division
Department of Justice, Room 7248
Washington, D.C. 20530

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Certificate of Service

I hereby certify that I caused to be filed an electronic copy of the foregoing
petition with the United States Court of Appeals for the Ninth Circuit, with ECF service
provided to opposing counsel, on June 28, 2012.
/s/ Samantha L. Chaifetz
SAMANTHA L. CHAIFETZ
Counsel for Appellees


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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT


MINORITY TELEVISION PROJECT, INC., 
Plaintiff-Appellant,
v.
No. 09-17311
FEDERAL COMMUNICATIONS
D.C. No.
COMMISSION; et al.,
 3:06-cv-02699-EDL
Defendants-Appellees,
OPINION
and
LINCOLN BROADCASTING COMPANY,
Intervenor.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted
November 1, 2010—San Francisco, California
Filed April 12, 2012
Before: John T. Noonan, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Concurrence in Judgment by Judge Noonan;
Dissent by Judge Paez
3919

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3924
MINORITY TELEVISION PROJECT v. FCC

COUNSEL

Walter E. Diercks, Rubin, Winston, Diercks, Harris & Cooke
LLP, Washington, DC, for the plaintiff-appellant.
Mark B. Stern, United States Department of Justice, Civil
Division, Appellate Staff, for the defendants-appellees.

OPINION

BEA, Circuit Judge:
A federal statute, 47 U.S.C. § 399b prohibits public broad-
cast radio and television stations1 from transmitting over the
public airways: 1) advertisements for goods and services on
behalf of for-profit entities, 2) advertisements regarding issues
of public importance or interest (“public issues”), and 3) polit-
1Public broadcast stations—alternatively called “noncommercial educa-
tional stations,” compare 47 U.S.C. § 399b with 47 C.F.R. § 73.621—are
stations which are “used primarily to serve the educational needs of the
community; for the advancement of educational programs; and to furnish
a nonprofit and noncommercial television broadcast service.” 47 C.F.R.
§ 73.621.

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MINORITY TELEVISION PROJECT v. FCC
3925
ical advertisements. 47 U.S.C. § 399b(a). The statute is there-
fore a content-based ban on speech: public broadcasters may
transmit many types of speech, but, unlike most other stations,
they may not transmit those three classes of advertising mes-
sages. Plaintiff-Appellant Minority Television Project, a pub-
lic broadcaster, contends that this ban violates the First
Amendment. Applying intermediate scrutiny, we uphold the
ban on the transmission of advertisements for goods and ser-
vices by for-profit entities, but we strike down as unconstitu-
tional the ban on public issue and political advertisements.2

I. Facts and Prior Proceedings

Appellant Minority Television Project is a nonprofit Cali-
fornia corporation which operates the San Francisco televi-
sion station KMTP-TV. KMTP-TV focuses on what it
describes as “multicultural programming,” and it airs a wide
variety of non-English language television shows. KMTP-TV
is licensed as a public broadcast station by the FCC, which
sets aside certain broadcast frequencies for public radio and
television stations which transmit educational programming.
Unlike commercial stations, public broadcast stations are
expected not to rely on paid advertising, but on federal and
state subsidies, individual donors, special events, foundation
grants, and corporate contributions. See generally 47 C.F.R.
§ 73.621. KMTP-TV is one of the few public broadcast sta-
tions in the United States which does not receive funding
from the Corporation for Public Broadcasting (a private, non-
profit corporation created by Congress in 1967 to invest in
educational programming on public broadcast stations). See
47 U.S.C. § 396(g)(2)(B).
However, because of its status as a public broadcast station,
2In an unpublished disposition filed concurrently with this opinion, we
address Minority’s contentions that § 399b is unconstitutionally vague,
and its appeal of the district court’s dismissal of its as-applied challenges
to § 399b and its implementing FCC orders.

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MINORITY TELEVISION PROJECT v. FCC
Minority is nonetheless subject to 47 U.S.C. § 399b, which
prohibits public broadcast stations from transmitting any “ad-
vertisements.” Under § 399b, an “advertisement” is defined
as: (1) a paid promotional message from a for-profit entity,
(2) a paid message on any matter of public importance, or (3)
a paid message in support of a political candidate. The rele-
vant portion of the statute reads:
(a) “Advertisement” defined. For purposes of this
section, the term “advertisement” means any mes-
sage or other programming material which is broad-
cast or otherwise transmitted in exchange for any
remuneration, and which is intended—
(1) to promote any service, facility, or product
offered by any person who is engaged in such offer-
ing for profit;
(2) to express the views of any person with respect
to any matter of public importance or interest; or
(3) to support or oppose any candidate for political
office.
47 U.S.C. § 399b.
On August 9, 2002, pursuant to a complaint filed by
another broadcaster, the FCC determined that Minority had
violated § 399b approximately 1,900 times between the years
1999 and 2002. 7 FCC Rcd 15646 (2003). The FCC found
that Minority had “willfully and repeatedly” violated § 399b
when it broadcast paid promotional messages on KMTP-TV
from for-profit corporations such as State Farm, Chevrolet,
and U-Tron Computers.3 7 FCC Rcd 15646 (2003). Minority
3Minority does not contest that the broadcasts for which it was fined
were “advertisements” within the meaning of § 399b. The translated script
for a representative advertisement, for Asiana Airlines, read as follows:

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MINORITY TELEVISION PROJECT v. FCC
3927
was fined $10,000 by the FCC. 7 FCC Rcd 15646 (2003).
Minority paid its $10,000 fine, but also filed a complaint in
federal district court for the Northern District of California in
which it sought both reimbursement of the $10,000 and
declaratory relief. In relevant part, Minority alleged that
§ 399b violates the First Amendment because its restriction
on advertising was not narrowly tailored to the government’s
interest in preserving the educational programs on public
broadcast stations. Minority alleges that it has declined to
broadcast public issue and political advertisements and would
do so but for the fear of FCC fines and forfeitures similar to
those previously imposed and paid. Minority contended
§ 399b is an unconstitutional content-based restriction on
speech, because it bans all paid public issue and political
speech while permitting paid promotional messages by non-
profits.
In response, the government contended § 399b’s restric-
tions on advertising are necessary to preserve the educational
nature of public broadcast programming. The government
contended that because advertisers naturally wish to reach the
largest possible audience, advertisers are more likely to buy

Female Character:

“Did you get the surprising news Asiana
Airlines sent to you? Now you can get American Airline [sic]
free tickets using Asiana mileage.”

Male Character:

“Asiana Air now combines mileage with
American Airlines.”

Female Character:

“Now you can travel free to America, Cen-
tral or South America, and even Europe—to 270 cities around
world [sic] earning mileage with Asiana Airlines. Although you
travel with Asiana Airlines or with American Airlines.”

Male Character:

“Now where do you want to go?”

Female Character:

“Well . . . . (laughter).”

Male Character:

“Mileage benefits with the best airline in the
world. Asiana Airlines.”

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MINORITY TELEVISION PROJECT v. FCC
commercials on television programs with high numbers of
viewers. Thus, the government contended, advertiser-
supported television and radio stations have an incentive to
broadcast programs with mass-market appeal. According to
the government, if public television and radio stations became
financially dependant on advertising, such stations would
replace their niche educational programs with more popular
programs which have greater mass-market appeal, thus endan-
gering the broadcast of the educational programs for which
public broadcast stations exist. See supra p. 3924, n.1.
After discovery, Minority and the FCC filed cross-motions
for summary judgment on Minority’s facial challenges to
§ 399b. The district court applied intermediate scrutiny to
§ 399b, and determined the prohibitions on advertising were
narrowly tailored to meet the substantial government interest
in maintaining educational programming on public stations.
Minority timely appealed the district court’s grant of sum-
mary judgment. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s grant of summary judg-
ment. United States v. Alisal Water Corp., 431 F.3d 643, 651
(9th Cir. 2005).

II. Determining What Level of Scrutiny Applies

As in all First Amendment cases, we must first determine
the correct standard of scrutiny to apply to the challenged stat-
ute. Because First Amendment doctrine and the media land-
scape have changed substantially in recent years, this is no
simple matter.
A. The Nature of the Restriction
[1] At the threshold of the inquiry, we must determine
whether this restriction is content based or content neutral.
We have previously held that “whether a statute is content
neutral or content based is something that can be determined

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MINORITY TELEVISION PROJECT v. FCC
3929
on the face of it; if the statute describes speech by content,
then it is content based.” G.K. Ltd. Travel v. City of Lake
Osewego,
436 F.3d 1064, 1071 (9th Cir. 2006). Here, § 399b
imposes clear content-based restrictions on the station’s
speech.
[2] First, Minority may broadcast a wide variety of content
for a wide variety of purposes, but the station may not air the
three types of advertisements banned by § 399b. That is a
content-based restriction, since it plainly restricts Minority’s
speech based on the speech’s content.
[3] Second, and equally important, § 399b discriminates
within the class of speech it defines as “advertisements.” Pub-
lic broadcast stations may not broadcast most types of adver-
tising speech, but these stations may broadcast paid
promotional messages for products and services of nonprofit
corporations. See 47 U.S.C. § 399b(a)(1). For example: the
record shows that the FCC allowed a public broadcast station
in Indiana to broadcast a paid message which promoted
Planned Parenthood’s “confidential, affordable reproductive
health services” because Planned Parenthood “is a non-profit
organization.” Nonetheless, a public broadcast station may
not broadcast a paid message “to express the views of any
person with respect to any matter of public importance” or “to
support or oppose any candidate for political office” regard-
less whether the sponsoring entity is an individual, a nonprofit
corporation, or a for-profit corporation. 47 U.S.C.
§ 399b(a)(2) and (a)(3). Thus, had Planned Parenthood sought
to air a paid message in support of Presidential candidates
who favored abortion rights, or sought to broadcast an “issue
ad” on the importance of sex education in schools, a public
broadcast station would have been prohibited from airing it
under § 399b(a)(2) and (a)(3). Indeed, in its letter to Planned
Parenthood, the FCC specifically stated that its proposed mes-
sage did not violate § 399b because it did not support any can-
didate for political office, nor express any views with respect

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MINORITY TELEVISION PROJECT v. FCC
to a matter of public importance. But, as shown, Planned Par-
enthood could advertise to promote itself.
[4] Thus, § 399b prohibits a public broadcast station from
broadcasting any advertisement which expresses views on a
matter of public importance or on behalf of a political candi-
date regardless who sponsored the message—Planned Parent-
hood (a nonprofit), Apple, Inc. (a for-profit), or a committee
to re-elect President Obama (a political group). But it allows
a public broadcast station to transmit a paid promotional mes-
sage from a nonprofit, so long as that message does not
express views on public issues or political candidates. That is
a further content-based restriction on speech, and this restric-
tion in particular burdens speech on issues of public impor-
tance and political speech.
B. Intermediate Scrutiny Applies
[5] Having identified § 399b’s speech restrictions as
content-based on two levels, we must determine what level of
scrutiny to apply in our analysis. Because government regula-
tion of content is one of the primary evils contemplated by the
First Amendment, content-based restrictions are strongly dis-
favored and are often subject to strict scrutiny. Indeed, in the
typical case, “[c]ontent-based regulations are presumptively
invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
Further, the bans on public issue and political advertise-
ments appear at first glance to be especially strong candidates
for strict judicial scrutiny because political speech is “entitled
to the most exacting degree of First Amendment protection.”
League of Women Voters, 468 U.S. 364 at 375. Under strict
scrutiny, the government would be required to “prove that the
restriction furthers a compelling interest and is narrowly tai-
lored to achieve that interest.” Citizens United v. FEC, 130 S.
Ct. 876, 898 (2010).
[6] But this is not the typical case, because these particular
content-based restrictions on speech apply to broadcasters.

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MINORITY TELEVISION PROJECT v. FCC
3931
For decades now, the Supreme Court has held that content-
based speech restrictions that apply to broadcasters are subject
to a less demanding form of judicial scrutiny than similar
restrictions that arise in other media contexts. See FCC v.
Pacifica Found.
, 438 U.S. 726 (1978). Indeed, in FCC v.
League of Women Voters,
468 U.S. 364 (1984), the Court held
that this intermediate level of scrutiny applies to regulations
governing public broadcasters in particular. Id. at 376-77.
[7] Specifically, in League of Women Voters, the Court
observed that “because broadcast regulation involves unique
considerations, our cases have not followed precisely the
same approach that we have applied to other media and have
never gone so far as to demand that such regulations serve
‘compelling’ governmental interests.” League of Women Vot-
ers
, 468 U.S. at 376. Pursuant to the Commerce Clause, Con-
gress regulates the broadcast spectrum—which is a “scarce
and valuable national resource”—to ensure that stations
which broadcast on those frequencies “satisfy the public inter-
est, convenience, and necessity.”4 Id. Thus, when Congress
4Since 1927, the federal government has required radio and television
stations which wish to transmit over-the-air signals to obtain a license to
broadcast on a particular frequency. See Radio Act of 1927, 44 Stat. 1162
(1927). Since 1939, the FCC has reserved certain frequencies for public
television and radio broadcasting stations. 47 CFR §§ 4.131-4.133 (1939)
(radio); 41 F.C.C. 148 (1952) (television). The FCC justified its reserva-
tion of frequencies for public broadcast television stations by noting that
broadcast frequencies are a scarce national resource, and public broadcast
stations would provide “programming of an entirely different character
from that available on most commercial stations.” Id. at 166, ¶ 57.
When the FCC set aside television frequencies for public broadcast sta-
tions, it noted that the “objective for which special educational reserva-
tions have been established—i.e., the establishment of a genuinely
educational type of service—would not be furthered by permitting educa-
tional institutions to operate in substantially the same manner as commer-
cial applicants.” Id. As a result, the FCC placed strict restrictions on
advertising on public broadcast stations. Before the 1981 enaction of
§ 399b, public broadcast stations were barred from broadcasting any
advertisement, and could identify program sponsors only by name. Id.

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MINORITY TELEVISION PROJECT v. FCC
acts pursuant to its regulation of the broadcast spectrum, it
does not operate under the same First Amendment standards
that apply to regulation of other forms of media. Instead, in
light of the history behind Congressional regulation of the
broadcast spectrum, the Supreme Court has held that laws
enacted pursuant to Congressional broadcast regulation—
even those which, as here, impose a content-based restriction
on core political speech—are subject to intermediate First
Amendment scrutiny. Under intermediate scrutiny, the gov-
ernment must prove a challenged statute is “narrowly tailored
to further a substantial governmental interest.” Id. at 380.
Despite the Court’s pronouncement in League of Women
Voters, which was a public broadcasting case, Minority urges
us to apply strict scrutiny for two different reasons. First, cit-
ing a concurring opinion in FCC v. Fox Television Stations,
Inc.
, 129 S. Ct. 1800 (2009), which questioned the continuing
validity of the broadcast regulation precedents on which
League of Women Voters relied, Minority contends that new
technologies such as cable and the Internet have undermined
the core “spectrum scarcity” rationale of broadcast regulation
cases. Id. at 1821 (Thomas, J., concurring). Under this theory,
because “traditional broadcast television and radio are no lon-
ger the ‘uniquely pervasive’ media forms they once were,”
id., courts should no longer treat broadcast restrictions any
differently from other restrictions on speech.
Minority is surely correct that much has changed in the
media landscape since the Supreme Court, in the 1970s, first
adopted a standard that treats broadcasters differently under
the First Amendment. Indeed, it is possible that the Supreme
Court itself may soon declare that the era of a special broad-
cast exemption from strict scrutiny is over. After briefing and
argument in this case, the Supreme Court heard argument in
a case in which a coalition of the nation’s major broadcasters
have asked the Court to overrule Pacifica and its progeny and
“announce firmly and finally that the time for treating broad-
cast speech differently than all other communications is

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MINORITY TELEVISION PROJECT v. FCC
3933
over.” Br. of Respondents Fox Television Stations et al. in
FCC v. Fox Television Stations, No. 10-1293, at 1.
But that case has not yet been decided. Thus, just as golfers
must play the ball as it lies, so too we must apply the law of
broadcast regulation as it stands today. A majority of the
Supreme Court has not overruled Pacifica, League of Women
Voters
, and related cases. Intermediate broadcast scrutiny
remains in vigor, and it governs this case.
Second, pointing to the bans on public issue and political
advertising in particular, Minority contends that § 399b
should be subject to strict scrutiny in the wake of Citizens
United v. FEC
, 130 S. Ct. 876, 886 (2010). Citizens United
applied strict scrutiny to 2 U.S.C. § 441b, which prohibited
corporations from engaging in “electioneering communica-
tions”5 within 30 days of a primary or 60 days of a general
election, and held that the statute violated the First Amend-
ment. Id. at 890. “The only reasonable conclusion that can be
drawn from Citizens United,” contends Minority, “is that any
restriction or prohibition of political speech on broadcast
radio or television is subject to strict scrutiny.”
We disagree. Citizens United was not a broadcast regula-
tion case, so the Court there had no reason to revisit League
of Women Voters
and related cases. Instead, the Court relied
on its previous application of strict scrutiny in cases which
challenged the constitutionality of restrictions on campaign
expenditures, not broadcast spectrum regulation. See id. at
899 (citing FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 464
(2007), a previous case which analyzed § 441b, for the propo-
sition that “laws that burden political speech are subject to
strict scrutiny”). Thus, in Citizens United, the Court applied
5“Electioneering communication” was defined as “any broadcast, cable,
or satellite communication” that “refers to a clearly identified candidate
for Federal office,” or any communication which is “publicly distributed,”
regardless of the medium. Citizens United, 130 S. Ct. 876, 887.

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MINORITY TELEVISION PROJECT v. FCC
strict scrutiny to § 441b because that statute dealt with regula-
tions on campaign expenditures generally. See, e.g., id. at 897
(listing, as acts that would be outlawed under § 441b, corpora-
tions running advertisements, publishing books, or creating
websites). Citizens United in no way dealt with the “unique
considerations” inherent in Congress’s regulation of the
broadcast spectrum.
Moreover, Citizens United expressly overruled two of the
Court’s prior decisions: Austin v. Michigan Chamber of Com-
merce
, 494 U.S. 652 (1990), which permitted a ban on speech
based on corporate identity, and McConnell v. FEC, 540 U.S.
93 (2003), which relied on Austin to uphold a facial challenge
to § 441b. Neither case involved regulation of public broad-
casting. Thus, it is not surprising that the Court in Citizens
United
did not once mention League of Women Voters; it was
neither overruled nor distinguished away. That is fatal to
Minority’s contention, because in League of Women Voters,
the Supreme Court specifically rejected the contention that
content-based laws which burden political speech and are
enacted pursuant to the broadcast spectrum require the appli-
cation of strict judicial scrutiny. League of Women Voters,
468 U.S. at 376.
We therefore apply intermediate scrutiny to the restrictions.
As explained below, we keep in mind as we apply that stan-
dard that public issue and political speech in particular is at
the very core of the First Amendment’s protection. We also
must be mindful that the narrow tailoring prong of the inter-
mediate scrutiny standard itself has undergone additional
elaboration by the Supreme Court since League of Women
Voters
was decided in 1984. It is the details of that standard
to which we now turn.
C. The Requirements of Intermediate Scrutiny
1. League of Women Voters
In determining what the application of intermediate scru-
tiny entails, League of Women Voters is our starting point. In

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MINORITY TELEVISION PROJECT v. FCC
3935
that case, the Supreme Court considered a First Amendment
challenge to a statute which forbade any public broadcasting
station from transmitting editorials on “controversial issues of
public importance” if that station had received a grant from
the Corporation for Public Broadcasting. The Court in League
of Women Voters
held that the ban on station editorials was
“defined solely on the basis of the content of the suppressed
speech.” Id. at 383. “In order to determine whether a particu-
lar statement by station management constitutes an ‘editori-
al,’ ” the Court reasoned, “enforcement authorities must
necessarily examine the content of the message that is con-
veyed to determine whether the views expressed concern
‘controversial issues of public importance.’ ” Id. Although the
Court held that the statute at issue in League of Women Voters
was viewpoint-neutral—i.e., it prohibited station editorials on
all sides of an issue—the Court held the “First Amendment’s
hostility to content-based regulation extends not only to
restrictions on particular viewpoints, but also to prohibition of
public discussion on an entire topic”; thus, the Court held the
statute was a content-based restriction on speech. Id. at 384.
In light of the First Amendment’s hostility towards content-
based restrictions on speech touching on controversial issues
of public importance on the one hand, and deference afforded
to Congress’s regulation of the broadcast spectrum on the
other, the Court in League of Women Voters held that a robust
form of intermediate scrutiny applies to content-based restric-
tions on broadcast speech which burden political expression.
Under the standard applied in League of Women Voters, a
restriction on speech will be upheld only if the government
proves “the restriction is narrowly tailored to further a sub-
stantial governmental interest.” Id. at 380. The Court in
League of Women Voters—while declining to require the gov-
ernment to prove a “compelling” interest under the more
stringent strict scrutiny test—required judicial “wariness”
within the standard it described. The Court did so because the
statute at issue in that case restricted editorials, which are
“precisely the form of speech which the Framers of the Bill

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MINORITY TELEVISION PROJECT v. FCC
of Rights were most anxious to protect—speech that is indis-
pensable to the discovery and spread of political truth.” Id. at
383. The Court said that it “must be particularly wary in
assessing [the statute] to determine whether it reflects an
impermissible attempt to allow the government to control . . .
the search for political truth.” Id. at 384 (emphasis added).
The Court held that the restriction there was not narrowly
tailored. Id. at 395. Rather, a “broad ban on all editorializing
by every station that receives [Corporation for Public Broad-
casting] funds far exceeds what is necessary to protect against
the risk of governmental interference or to prevent the public
from assuming that editorials by public broadcasting stations
represent the official view of government.” Id. Although the
Court recognized that “the Government certainly has a sub-
stantial interest in ensuring that the audiences of noncommer-
cial stations will not be led to think that the broadcaster’s
editorials reflect the official view of the Government,” the
Court said that “this interest can be fully satisfied by less
restrictive means that are readily available.” Id. For example,
the Court stated that Congress could “simply require public
broadcasting stations to broadcast a disclaimer every time
they air editorials which would state that the editorial . . . does
not in any way represent the views of the Federal Government
or any of the station’s other sources of funding.” Id. Thus, the
Court held the ban on station editorials unconstitutional and
affirmed the grant of summary judgment to the League of
Women Voters. Id. at 402.
For the purposes of application of the proper level of scru-
tiny, the statute at issue in this case is similar to the chal-
lenged statute in League of Women Voters.6 Section 399b
makes content-based distinctions which, by their terms, bur-
den speech in a similar manner to the provision at issue in
League of Women Voters. Like the statute in League of
6The statute in that case can be found at 47 U.S.C. § 399 (1982) (subse-
quently amended by Pub. L. 100-626 (1988)).

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Women Voters, § 399b was enacted pursuant to Congress’s
regulation of public broadcast stations—stations which were
explicitly set aside for educational programming. Moreover,
subsections 399b(a)(2) and (a)(3) share the additional similar-
ity with the provision at issue in League of Women Voters that
the provisions burden public issue and core political speech.
2. Subsequent Elaboration: The Turner Cases and
Discovery Network
We are conscious, of course, that First Amendment doc-
trine has not been stagnant in the nearly thirty years since
League of Women Voters was decided. We must also consider
further elaborations of the narrow tailoring inquiry under
intermediate scrutiny. We thus take guidance in particular
from two cases together known as “the Turner cases,” as well
from select commercial speech cases that applied intermediate
scrutiny, especially Cincinnati v. Discovery Network, 507
U.S. 410 (1993).
In the mid-1990s, the Supreme Court had occasion compre-
hensively to describe intermediate broadcast scrutiny, albeit in
a slightly different context from that here, in a pair of cases
known as the Turner cases. In Turner Broadcasting System v.
FCC
, 512 U.S. 622 (1994) (“Turner I”), the Supreme Court
reversed, for further factfinding, the district court’s grant of
summary judgment to the FCC on a First Amendment chal-
lenge to a statute which compelled cable companies to carry
local broadcast stations. 512 U.S. at 667. The Court held that
there was not enough evidence in the record to determine
whether local broadcast stations would go out of business if
cable companies were not required by law to carry local
broadcast stations. Id. at 668. The Court revisited the dispute
after additional discovery in district court in Turner Broad-
casting System v. FCC
, 520 U.S. 180 (1997) (“Turner II”). In
Turner II, the Court upheld the district court’s decision on
remand in favor of the FCC because the additional record evi-
dence supported Congress’s determinations. Id. at 224.

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[8] As relevant here, the guiding principle of narrow tailor-
ing under intermediate scrutiny is that the government must
“demonstrate that the recited harms” to the substantial gov-
ernmental interest “are real, not merely conjectural, and that
the regulation will in fact alleviate those harms in a direct and
material way.” Turner I, 512 U.S. at 664-65. Furthermore,
although a statute is “not invalid simply because there is some
imaginable alternative that might be less burdensome on
speech,” Turner II, 520 U.S. at 217, the government must
prove that the statute does not “burden substantially more
speech than is necessary to further the government’s legiti-
mate interests.” Turner I, 512 U.S. at 665 (internal quotations
omitted). Importantly, the government must prove both the
reality of the recited harms and that the statute does not bur-
den more speech than necessary “by substantial evidence.”
Turner II, 520 U.S. at 211. “Substantial evidence” must
include “substantial evidence in the record before Congress”
at the time of the statute’s enaction.7 Id.
[9] Additional instruction on what narrow tailoring
requires comes from Cincinnati v. Discovery Network, 507
U.S. 410 (1993). In Discovery Network, the Court was faced
with a content-based restriction on speech: a city ordinance
banned sidewalk newsracks which distributed “commercial
handbills,” but not newsracks which distributed “newspa-
pers.” Id. at 429. A group of publishers of commercial hand-
bills challenged the statute as an impermissible content-based
restriction on speech prohibited by the First Amendment. Id.
at 412. The city defended the ordinance by contending it fur-
7While the Court in Turner I held that the regulation there was not
content-based, see 512 at 652, these cases nonetheless guide the analysis
because they are the most comprehensive descriptions of intermediate
scrutiny in the First Amendment context. The government’s brief draws
heavily from these cases. Indeed, the D.C. Circuit recently drew heavily
on the Turner cases when it applied Second Amendment intermediate
scrutiny to a series of new gun regulations imposed by the District of
Columbia. See Heller v. District of Columbia, ___ F.3d ___, 2011 WL
4551558, at *11 (D.C. Cir. Oct. 4, 2011).

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thered its “legitimate interest in ensuring safe streets and reg-
ulating visual blight.” Id. at 415. Cincinnati contended
newsracks in general undermined safety and esthetics in the
public right of way; thus, the ban on newsracks which con-
tained a certain type of content was justified because it neces-
sarily reduced the total number of newsracks on sidewalks.
Id. at 415.
The Supreme Court held the statute unconstitutional,
because the “selective and categorical” content-based ban on
newsracks containing handbills was not narrowly tailored to
the city’s purported interest. Id. at 417. Although the city’s
“desire to limit the total number of newsracks is justified by
its interests in safety and esthetics,” the statute was “unrelated
to any distinction between ‘commercial handbills’ and ‘news-
papers,’ ” and thus was not narrowly tailored. Id. at 429-30
(emphasis added, some internal quotation marks omitted).
The Court said:
The city has asserted an interest in esthetics, but
respondent publishers’ newsracks are no greater an
eyesore than the newsracks permitted to remain on
Cincinnati’s sidewalks. Each newsrack, whether
containing “newspapers” or “commercial handbills,”
is equally unattractive . . . . [T]he city’s primary con-
cern, as argued to us, is with the aggregate number
of newsracks on the streets. On that score, however,
all newsracks, regardless whether they contain com-
mercial or noncommercial publications, are equally
at fault.
Id. at 425-26.
[10] Thus, the Court held the newsrack ordinance was not
narrowly tailored, because there was no proof that newsracks
containing handbills (banned) threatened the governmental
interests in esthetics and safety to a greater degree than news-
racks containing newspapers (permitted). Therefore, the Court

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held the costs and benefits of the statute had not been “care-
fully calculated” to meet the substantial governmental inter-
est. See id. at 416 n.12. Notably, the ordinance did not
regulate the number of newsracks permitted on the city’s side-
walks, regardless their content.8
D. Summary
[11] Synthesizing three decades of First Amendment cases,
then, we take heed of two key principles. First, for us to sus-
tain any content-based restriction, the government must prove
both the reality of the recited harms and that the statute does
not burden more speech than necessary “by substantial evi-
dence.” Turner II, 520 U.S. at 211. “Substantial evidence”
must include “substantial evidence in the record before Con-
gress” at the time of the statute’s enaction. Id. Second, when
Congress enacts a “selective and categorical” ban on speech,
8The Supreme Court’s recent decision in Sorrell v. IMS Health Inc., 131
S. Ct. 2653 (2011), reaffirms that § 399b would be subjected to rigorous
analysis even if viewed through the lens of commercial speech. In that
case, the Court struck down a Vermont law which restricted the sale, dis-
closure, and use of records created by pharmacies that reveal the prescrib-
ing habits of doctors. Such records are useful to drug companies who
market their drugs to doctors. That case therefore involved paradigmatic
commercial speech, but the Court nonetheless noted that “the First
Amendment requires heightened scrutiny whenever the government
creates ‘a regulation of speech because of disagreement with the message
it conveys.’ ” Id. at 2664 (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)). The Court continued by noting that “[c]ommercial
speech is no exception” to this principle in part because a “consumer’s
concern for the free flow of commercial speech often may be far keener
than his concern for urgent political dialogue.” Id. (quotation marks omit-
ted).
However, because “the outcome is the same whether a special commer-
cial speech inquiry or a stricter form of judicial scrutiny is applied,” the
Court did not formally overrule any cases holding that commercial speech
is subject to less protection than core public issue or political speech. Id.
at 2667. Thus, after Sorrell, it is clear that commercial speech is subject
to a demanding form of intermediate scrutiny analysis.

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as here, the government must prove that the speech banned by
a statute poses a greater threat to the government’s purported
interest than the speech permitted by the statute. Discovery
Network
, 507 U.S. at 425.

III. Analysis of § 399b

Our final step is to determine whether the government has
carried its burden to prove that § 399b passes intermediate
First Amendment scrutiny. Intermediate scrutiny requires the
government to prove a challenged statute is narrowly tailored
to a substantial government interest. League of Women Vot-
ers
, 468 U.S. at 380. We hold that 399b(a)(1), which prohibits
advertising by for-profit entities for their goods and services,
meets this standard. However, 399b(a)(2) and (a)(3), which
prohibit public issue and political advertising, do not.
A. The Subsections are Severable
We must decide at what level of generality to undertake the
analysis. That is: do all provisions of § 399b stand or fall
together, or should we analyze separately subsections
399b(a)(1), (a)(2), and (a)(3)? We conclude that it is appropri-
ate to sever the provisions and analyze them separately.
[12] Although neither § 399b nor the Public Broadcasting
Amendments Act of 1981 contains an explicit severability
clause, we are confident that we nevertheless may hold one
section constitutional without so holding as to the others. Stat-
utes are presumptively severable and “a court should refrain
from invalidating more of the statute than is necessary.”
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). We
may sever the statute “[u]nless it is evident that the Legisla-
ture would not have enacted those provisions which are
within its power, independently of that which is not.” Id.
[13] Here, we see no reason to think that Congress would
not have enacted the ban on promotional advertising by for-

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profit entities if it could not also have enacted the bans on
political or public issue advertising. Moreover, neither party
contends the statute is not severable, and the district court
analyzed the provisions separately. There is thus no warrant
for departing from the general presumption of severability in
this case.
Our conclusion is further supported by Congress’s decision
to ban advertising selectively. Since Congress determined that
these three classes of advertising should be banned, then Con-
gress must “demonstrate that the recited harms” to the sub-
stantial governmental interest of each class of advertising “are
real, not merely conjectural, and that the regulation will in
fact alleviate those harms in a direct and material way.” Tur-
ner I
, 512 U.S. at 664-65. It is that inquiry to which we now
turn.
B. The Government’s Overall Interest
[14] The government asserts the same interest is furthered
by all three of § 399b’s restrictions on advertising: that Con-
gress may ban advertising on public television stations to
ensure that high quality educational and noncommercial pro-
gramming is broadcast on the public airwaves. The govern-
ment contends that if public broadcast stations were permitted
to transmit paid commercial, public issue, and political adver-
tisements, public broadcast stations would attempt to attract
advertising dollars by replacing niche educational program-
ming with programming of greater mass-market appeal. In
turn, the distinction between public broadcast and commercial
stations would be blurred—and the breadth of quality educa-
tional and other noncommercial programming on public
broadcast stations would be reduced.
As an initial matter, we hold the government has a substan-
tial interest in ensuring high-quality educational programing
on public broadcast stations—a conclusion Minority does not
dispute. Even though cable, satellite, and the Internet have

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changed the nature of television and radio, the broadcast spec-
trum remains a finite national resource. Congress set aside
broadcast frequencies for public stations to ensure Americans
would have access to niche programming such as public
affairs shows and educational programs for children. See 41
F.C.C. at 166, ¶ 57 (FCC reserves broadcast frequencies for
public broadcast stations because they offer “programming of
an entirely different character from that available on most
commercial stations”).
[15] Moreover, the government has submitted unrebutted
evidence that public broadcast stations do broadcast substan-
tially different types of programs than do commercial stations.
For example, the Government Accountability Office has
determined that 16 percent of all program hours broadcast by
public television stations are devoted to educational children’s
programming. By contrast, commercial broadcasters devote
less than 2 percent of their program hours to educational or
informational children’s programming. According to a Senate
report submitted by the government, public television is “the
primary source of educational children’s programming in the
United States.” Children’s Television Act of 1990, S. Rep.
No. 101-66 at 3, reprinted in 1990 U.S.C.C.A.N. 1628, 1633.
Public broadcast stations regularly broadcast renowned chil-
dren’s shows such as “Sesame Street,” “Mr. Roger’s Neigh-
borhood,” and “Reading Rainbow,” which attempt to teach
children to read and to do sums. Id. at 23-36, 1990
U.S.C.C.A.N. at 1631-33. Again, Minority does not dispute
that the government’s interest in maintaining public broadcast
stations’ niche programming is “substantial.” Instead, Minor-
ity contends that § 399b is not narrowly tailored to the
asserted government interest.
C. Whether The Restrictions Are Narrowly Tailored
We thus turn to the “narrowly tailored” prong of the inter-
mediate scrutiny test. Under the Turner cases, the government
must “demonstrate that the recited harms” to the substantial
governmental interest “are real, not merely conjectural, and

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that the regulation will in fact alleviate those harms in a direct
and material way.” Turner I, 512 U.S. at 664-65. The govern-
ment must prove both the reality of the recited harms and that
the statute does not burden more speech than necessary “by
substantial evidence.” Turner II, 520 U.S. at 211. “Substantial
evidence” must include “substantial evidence in the record
before Congress” at the time of the statute’s enaction. Id.
Moreover, when Congress enacts a “selective and categorical”
ban on speech, as here, the government must prove that the
speech banned by a statute poses a greater threat to the gov-
ernment’s purported interest than the speech permitted by the
statute. See Discovery Network, 507 U.S. at 425, 429.
1. Subsection 399b(a)(1)
We first turn to 399b(a)(1), the restriction on paid adver-
tisements for goods and services on behalf of for-profit corpo-
rations. As in the Turner cases, we hold that there was
“substantial evidence”—including “substantial evidence in
the record before Congress”—to support Congress’s conclu-
sions that: a) the harm posed by advertising by for-profit enti-
ties on public broadcast stations was “real, not merely
conjectural,” and b) banning advertising by for-profit entities
does not “burden substantially more speech than necessary to
further the government’s legitimate interest.” Turner I, 512
U.S. at 664-65.
[16] Prior to the enactment of § 399b in 1981, Congress
considered eliminating all advertising restrictions on public
broadcast stations. Congress’s decision to continue regulation
of promotional advertising—at least by for-profit entities—on
public broadcast stations was supported by substantial evi-
dence presented to Congress that advertising would harm the
educational mission of public broadcast stations. Congress
heard testimony by a senior vice president from National Pub-
lic Radio (“NPR”), who testified that an internal study con-
ducted by NPR had shown that “on-air advertising” would
hold “little or no promise for public radio,” because public

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radio stations broadcast precisely “what commercial stations
choose not to broadcast because of insubstantial income
potential.” (emphasis added). Congress also heard testimony
from John C. DeWitt, from the American Foundation for the
Blind, who testified that he was concerned a “commercializa-
tion of public broadcasting” would focus public broadcast
programming towards the “lowest common denominator,”
rather than “diverse audiences,” including minorities, women
and the “print handicapped.” Finally, Congress had before it
written testimony by the Association of Independent Video
and Filmmakers, which stated unequivocally: “commercial-
ization will make public television indistinguishable from the
new commercial or pay culture cable services. And public
television will fail.”
[17] In addition to the evidence which was before Con-
gress in 1981, the government submitted a report from Roger
G. Noll, an emeritus professor at Stanford University, who
had written several books on the economics of the television
industry. Noll’s report concluded that because advertisers
wish to air commercials on television programs with high
numbers of viewers, “[a] competitive, advertiser-supported
television system leads to an emphasis on mass entertainment
programming.” Advertiser-supported television provides few
“programs that serve a small audience, even if that audience
has an intense desire to watch programs that differ from stan-
dard mass entertainment programs.” Commercial television
stations, for example—which are primarily reliant on
advertising—offer “children’s programming only if it can be
used to market products to children,” despite parents’ desire
to have their children watch educational television program-
ming. The government buttressed Noll’s report with a decla-
ration from Lance Ozier, the former president of a nonprofit
organization which operates a number of public broadcast
television stations in Massachusetts. Ozier stated that the edu-
cational programs on public broadcast stations “do not attract
sufficient viewership to attract substantial advertising reve-
nue.” Thus, “subjecting non-commercial stations to the same

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commercial pressures faced by commercial stations would
make it economically impossible to provide such program-
ming.”
Minority urges us to discount the evidence before Congress
in 1981 as “the opinions, predictions and wishes of the wit-
ness[es] unencumbered by any evidence.” Minority is correct
that Congress had no empirical data—statistics, academic
studies, or otherwise—to support its 1981 conclusion that
allowing commercial advertising on public broadcast stations
would undermine niche programming on those stations. But
we are unaware of any authority which requires a particular
type of evidence in the record before Congress. Indeed, Tur-
ner I
reminds us that “[s]ound policymaking often requires
legislators to forecast future events and to anticipate the likely
impact of these events,” Turner I, 512 U.S. at 665. We do not
normally “substitute our judgment for the reasonable conclu-
sion of a legislative body.” Turner II, 520 U.S. at 211. More-
over, “Congress is not obligated, when enacting its statutes,
to make a record of the type that an administrative agency or
court does to accommodate judicial review.” Turner I, 512
U.S. at 666.
[18] We thus decline Minority’s invitation to second-guess
Congress as to the quality of the evidence before it as to the
probable effect commercial advertising by for-profit firms
would have on program content. In light of the deference we
afford to Congress’s legislative judgments, we conclude that
Congress’s conclusion that paid promotional messages by for-
profit entities pose a threat to extinguish public broadcast sta-
tions’ niche programming was supported by substantial evi-
dence, including “substantial evidence in the record before
Congress.” Turner II, 520 U.S. at 211. Moreover, all of the
evidence which was before Congress—and which was sub-
mitted by the government to the district court—evinces a
strong connection between the harm recited and the preva-
lence of commercial advertising. Thus, we cannot conclude
that § 399b(a)(1) “burden[s] substantially more speech than is

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necessary to further the government’s legitimate interests.”
Turner I, 512 U.S. at 665.
2. Subsections 399b(a)(2) and (a)(3)
The outcome is different for subsections 399b(a)(2) and
(a)(3), which proscribe public issue and political advertising.
As we explain, there is simply no evidence in the record—
much less “substantial evidence in the record before Con-
gress” at the time of the statute’s enaction, Turner II, 520 U.S.
at 411—to connect the ban on this speech to the government’s
interest in maintaining certain types of programming. More-
over, there is no evidence that public issue and political
advertisements, which are banned, are more harmful than
advertisements for goods and services by non-profits, which
are allowed. Discovery Network, 507 U.S. at 425.
As previously discussed, we accept Congress’s conclusion
that commercial advertisers seek the largest audience possi-
ble, and that, were public broadcast stations permitted to
transmit commercial advertisements without restriction, such
stations would seek to make themselves more attractive to
advertisers by broadcasting programs with mass-market
appeal. But neither logic nor evidence supports the notion that
public issue and political advertisers are likely to encourage
public broadcast stations to dilute the kind of noncommercial
programming whose maintenance is the substantial interest
that would support the advertising bans.
[19] To take two key examples: the government cites
ample evidence that public television provides “more public
affairs programming and children’s and family programming”
than advertiser supported stations do. It is easy to see how the
ban on commercial advertisements in subsection 399b(a)(1) is
narrowly tailored to further the governmental interest in pre-
serving such niche programming. But the connection between
a ban on public issue and political advertisements and the
interest of promoting niche programming is, to put it gener-

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ously, tenuous—and a tenuous connection is not enough to
survive intermediate scrutiny. The restriction must be “nar-
rowly tailored” and there must be “substantial evidence” that
supports the restrictions.
[20] Consider first the effect of the ban on public issue and
political advertisements on the nature and prevalence of chil-
dren’s educational programming. There is virtually no way
that these advertisements, if allowed, would negatively affect
the nature of children’s programming on public television sta-
tions. After all, the large majority of viewers of these pro-
grams are legally prohibited from voting, so there is virtually
no incentive for a station to alter its children’s programming
to suit the preferences of a political candidate or issue group.
At the outer reaches of one’s imagination, perhaps, lies a
potential Saturday morning cartoon featuring an appearance
by President Obama or Candidate Romney, Santorum, Paul,
or Gingrich, wherein the political personality appears in the
episode to fight crime alongside Superman or Batman. It is
true that such cartoon would be more likely to exist on a sta-
tion where the particular candidate is able to run a 30-second
political advertisement before and after his world-saving
derring-do than on a station where such advertisements are
prohibited. But the possibility that such cartoons will replace
“Sesame Street” anytime soon seems quite remote. At best, it
is pure speculation, which was never mentioned before Con-
gress. Upholding the ban on public issue and political adver-
tising requires more than speculation.
The interest in maintaining public affairs programming of
the sort currently seen on public television is a slightly closer
case, but the government still fails to carry its burden. There
are a few scattered remarks in the record that, with § 399b,
Congress wished to “insulate public broadcasting from special
interest influences—political, commercial, or any other kind.”
127 Cong. Rec. 13145 (June 22, 1981) (remarks of Rep. Gon-
zalez); see also H.R. Rep. No. 97-82, 97th Cong., 1st Sess. 16
(1981) (emphasizing the need for “insulation of program con-

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MINORITY TELEVISION PROJECT v. FCC
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trol and content from the influence of special interests—be
they commercial, political, or religious”). The temptation of
receiving advertising dollars from groups or individuals who
wish to air public issue or political advertisements are indeed
the types of special interest influences that could distort the
nature of public affairs programming offered on public televi-
sion. Especially in an election season, we see how a news
broadcaster may be tempted to alter the content of its public
affairs programming if it thinks it can garner additional adver-
tising dollars from one or another campaign, SuperPAC, or
advocacy group by doing so.
[21] But speculation aside, there is no evidence in the
record—much less evidence which was in the record before
Congress
—to support Congress’s specific determination that
public issue and political advertisements impact the program-
ming decisions of public broadcast stations to a degree that
justifies the comprehensive advertising restriction at issue
here. In Turner II, the Supreme Court stated that such evi-
dence must at least include “substantial evidence in the record
before Congress” at the time of the statute’s enaction, Turner
II
, 520 U.S. at 211. Here, the government fails to point to evi-
dence to support the needed connection between the means of
§ 399b(a)(2) and (a)(3) (prohibition of public issue and politi-
cal issue advertisements) and the ends to be achieved (sur-
vival of educational programming). For instance, no witness
testified to Congress in 1981 as to the relative motivations of
public issue and political advertisers when compared to other
advertisers. Instead, the only evidence before Congress dealt
with the motivations of commercial advertisers or advertisers
generally. But the type of advertising proscribed by
§ 399b(a)(2) and (a)(3) is very different than that proscribed
by (a)(1).
Further, the only evidence cited by the government in the
district court and in its brief to support § 399b(a)(3)’s content-
based restriction on political speech was a 2008 article in
AdWeek Magazine which stated that $2.2 billion was spent

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on political campaign advertisements during 2008. The
AdWeek article did not provide any figures for the amount of
money spent on non-political advertising, so the significance
of the $2.2 billion figure is unclear. Additionally, the fact that
a large amount of money was spent on political television
advertisements in 2008 is not “substantial evidence” that
political advertisers seek a larger audience than do nonprofits
advertisers, or that they distort programming decisions by
buying advertising time. And a magazine article from 2008
certainly was not “substantial evidence [which was] in the
record before Congress” 27 years earlier, in 1981, when
§ 399b was enacted. See Turner II, 520 U.S. at 211. More-
over, there was no evidence presented by the government to
justify § 399b(a)(2)’s restriction on public issue speech.
[22] Indeed, of the Congressional testimony relied on by
the district court in its determination that the statute withstood
intermediate scrutiny, it is instructive that two of the three
representatives referred explicitly to the threat to public
broadcasters of “commercialization.” John C. DeWitt from
the American Foundation for the Blind testified that he was
concerned the “commercialization of public broadcasting”
threatened to focus its programming towards the “lowest com-
mon denominator,” rather than “diverse audiences,” including
minorities, women and the “print handicapped.” Hearings
before the Subcomm. on Telecommns, Consumer Protection,
and Finance of the H. Comm. on Energy and Commerce on
H.R. 3238 and H.R. 2774, 97th Cong. 1st Sess. (1981) (“1981
House Hearings.”). This does nothing to support the bans in
subsections (a)(2) and (a)(3), because public issue and politi-
cal advertisements pose no threat of “commercialization.” By
definition, such advertisements do not encourage viewers to
buy commercial goods and services. A ban on such advertis-
ing therefore cannot be narrowly tailored to serve the interest
of preventing the “commercialization” of broadcasting.
The district court also cited testimony of the Association of
Independent Video and Filmmakers (AIVF). AIVF’s testi-

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mony stated unequivocally that “commercialization will make
public television indistinguishable from the new commercial
or pay culture cable services. And public television will fail.”
But again, this concern simply does not implicate public issue
and political advertisements.9
Ultimately, the most revealing statement in the govern-
ment’s brief on this point is the following sentence, which
contains no citations: “Political advertisers are no less capable
of exerting influence on programmers than commercial adver-
tisers, and, accordingly, political advertising has never been
permitted in public broadcasting.” If that preliminary state-
ment of fact about the ability of political advertisers to exert
program influence were supported by some evidence—in par-
ticular, some evidence before Congress when it enacted the
ban—the government could sustain its burden under interme-
diate scrutiny. But at such a critical point, the government
makes only a bare assertion, unsupported by citation to any
evidence. The government cannot simply assert its way out of
the “substantial evidence” requirement of the First Amend-
ment.10
9A third piece of testimony before Congress in 1981 was by a represen-
tative from National Public Radio (NPR), and that testimony is on the
whole unhelpful to the government. The NPR representative in fact sug-
gested that the programs provided by public television stations could sur-
vive a statutory scheme which allowed paid advertising generally. The
NPR representative testified that, per NPR’s internal study, “on-air adver-
tising and pay cable fall into [a] category” which “may attract money for
some public television stations, [but] hold little or no promise for public
radio.” Thus, the NPR testimony cannot be “substantial evidence” that
prohibitions on public issue or political advertisements were “necessary to
preserve” public broadcasting stations’ programming.
10The dissent contends that the Constitution imposes only two “proce-
dural” requirements on a law’s passage, bicameralism and presentment,
and therefore objects to the conclusion that “the constitutionality of a fed-
eral law might turn on the quantity and quality of evidence before Con-
gress at the time of enactment.” Dissent at 3968-69. But those are two
different questions: one is what the Constitution requires for enactment of
a law, and another is what the First Amendment to the Constitution

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[23] The fact that Congress chose not to ban all advertise-
ments, but left a gap for certain non-profit advertisements, is
also fatal to its case under the analysis in Discovery Network,
the commercial handbills case. Here, the banned speech (pub-
lic issue and political advertisements) is analogous to Discov-
ery Network
’s handbills; the permitted speech (promotional
advertisements by nonprofits) is analogous to the Discovery
Network
’s newspapers. And just as the city in Discovery Net-
work
was required to prove that handbill-dispensing news-
racks posed a greater threat to public safety and esthetics than
newspaper-dispensing newsracks, the government here must
prove that public issue and political advertisements pose a
greater threat to educational programming on public broadcast
stations than promotional advertisements on behalf of non-
profits. 507 U.S. at 424. Indeed, the government’s burden is
even higher here than in Discovery Network, because § 399b
disadvantages political speech—bans on which we must be
“particularly wary.” League of Women Voters, 468 U.S. at 384.11
requires for a law abridging speech to be valid. For provisions like subsec-
tions 399b(a)(2) and (a)(3), which undeniably restrict speech, the Supreme
Court has stated that the law must pass the intermediate scrutiny test: the
government must show that the statute “promotes a substantial govern-
mental interest” and “does not burden substantially more speech than nec-
essary to further that interest.” Turner II, 520 U.S. at 213 (internal
quotations omitted). In elaborating the intermediate scrutiny inquiry, the
Court stated that courts must “assure that, in formulating its judgments,
Congress has drawn reasonable inferences based on substantial evidence.”
Id. at 195. The Turner requirement is not a “procedural requirement” to
enactment; rather, it is a substantive test for a provision’s constitutionality
under the First Amendment.
11Accordingly, even if Judges Noonan and Paez are correct that Discov-
ery Network is not directly applicable because it is a commercial speech
case, see Concurrence at 3956; Dissent at 3965, that would do nothing to
change the outcome because “commercial speech [handbills] can be sub-
ject to greater governmental regulation than noncommercial speech [polit-
ical advertising].” Discovery Network, 507 U.S. at 426. If commercial
speech could not be banned in Discovery Network, perforce political
speech cannot be banned here. Indeed, the fact that we find certain sec-
tions of § 399b to be invalid under a standard that would, if anything, be
more favorable to the government reinforces today’s holding.

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Recall that the newsracks banned in Discovery Network con-
tained commercial handbills.
[24] Applying the Discovery Network standard to § 399b’s
“selective and categorical” content-based bans on speech, we
find no basis for § 399b’s content-based discrimination
against public issue and political advertisements. In fact, it
stands to reason that both public issue and political advertis-
ers, on the one hand, and nonprofits seeking to advertise for
their goods and services, on the other, would generally seek
the largest audience possible. A nonprofit university which
seeks to attract students through television advertisements
would want its advertisements seen by as many potential
applicants as possible; so, too, would a Presidential candidate
generally want his advertisement viewed by the largest possi-
ble audience of voters.
Of course, this is a generality: we do not doubt that many
advertisers—political and nonpolitical—sometimes target
niche markets. A nonprofit group seeking to raise funds for
wildlife preservation may choose to spend its money to adver-
tise during nature shows, the better to reach motivated donors.
But so might an evangelical Presidential candidate choose to
spend his money advertising on religious-themed shows in
Iowa in advance of the Iowa caucuses, to increase voter turn-
out to his advantage. The point is that in general, there is no
reason to think that public issue and political advertisers have
any greater propensity to seek large audiences than do non-
profit advertisers. Yet Minority and other public television
stations may broadcast one type of advertisement but not the
other. That is the kind of picking-and-choosing among differ-
ent types of speech that Congress may not do, absent evidence
to show that Congress’s favoritism is necessary to serve its
substantial interest.
[25] Thus, because § 399b’s content-based ban on public
issue and political advertisements bears “no relationship
whatsoever to the particular interests that the [government]

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MINORITY TELEVISION PROJECT v. FCC
has asserted,” Discovery Network, 507 U.S. at 424, the statute
is not narrowly tailored. Here, as in Discovery Network, there
is no basis for the content-based distinction drawn by § 399b.
Just as newsracks containing “commercial handbills” and
newsracks containing “newspapers” posed an identical threat
to safety and esthetics, so too, for aught that appears—
especially in the Congressional record—do public issue and
political advertisers, on the one hand, and non-political, non-
profit advertisers on the other pose identical threats to dis-
place niche programs on public broadcast television.
The dissent relies on the aforementioned Ozier declaration
for the proposition that “the content and quantity of nonprofit
advertising do not pose the same sort of threat to public
broadcasting’s financial model as other sorts of advertising.”
Dissent at 3967-68. But even if the dissent is correct that non-
profit advertising in general does not pose the sort of threat
that for-profit advertising does, that fact would do nothing to
justify 399b’s content-based speech restriction within the
class of nonprofit advertising. The statute gives Minority the
ability to broadcast an advertisement for Planned Parent-
hood’s goods and services but does not allow Minority to
broadcast an advertisement stating Planned Parenthood’s view
on a piece of proposed legislation or a political candidate.
That is a crucial content-based distinction—and there is no
evidence at all to support it.12
12The dissent claims that Congress in fact “intended to shield public
programming” from undue “political” influence but not from “advertise-
ments by nonprofit entities.” Dissent at 3966-67. In support of this “Con-
gressional intent,” the dissent cites to not a word of statutory text but only
to a sentence fragment by a single House member contained in the con-
gressional record. Id. (citing 127 Cong. Rec. 13145 (June 22, 1981)
(remarks of Rep. Gonzalez). But “[r]eliance on such isolated fragments of
legislative history in divining the intent of Congress is an exercise fraught
with hazards,” New England Power Co. v. New Hampshire, 455 U.S. 331,
342 (1982), and Representative Gonzalez’s isolated statement cannot
overcome the absence of evidence in the record justifying the content-
based restriction.

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MINORITY TELEVISION PROJECT v. FCC
3955
* * *
[26] The government’s evidence in this case shows only
the size and effect of one class of advertising: traditional com-
mercial advertising. That is the content of speech proscribed
in subsection § 399b(a)(1), which proscription we today hold
passes “intermediate scrutiny” and which we uphold. But the
government cannot point to evidence that its fear of harm to
public television that would come from allowing stations to
air public issue and political advertisements is “real, not
merely conjectural,” much less that the portions of the statute
which ban such political and public issue advertisements “al-
leviate those harms in a direct and material way.” Turner I,
512 U.S. at 664. Thus, we strike down as unconstitutional
subsections 399b(a)(2) and (a)(3).
Of course, following today’s decision, Congress is free to
“try again.” If there truly is evidence that broadcast of public
issue and political advertisements would cause substantial
harm—that their broadcast would change program content as
directly and substantially as would for-profits’ advertising—
Congress could compile a record to show as much, and per-
haps pass a law restricting such speech. That record would
contain evidence, not mere conjecture and anecdote. It is evi-
dence of harm to a substantial governmental interest—not
mere conjecture—which the First Amendment requires. See
Turner II
, 520 U.S. at 211.
The district court’s grant of summary judgment to the gov-
ernment is

AFFIRMED

in part, and

REVERSED

in part.
We

REMAND

to the district court with instructions to enter
an order granting summary judgment to Minority Television
Project as to § 399b(a)(2) and § 399b(a)(3), and for further
proceedings consistent with this opinion.13
13Because Minority was fined $10,000 for violations of § 399b(a)(1)—
which survives our decision today—we affirm the district court’s denial
of reimbursement. Moreover, we express no opinion as to whether subsec-
tion 399b(a)(1) would withstand strict scrutiny analysis.

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MINORITY TELEVISION PROJECT v. FCC
NOONAN, Circuit Judge, concurring in the judgment:
Broadcast speech is protected by the First Amendment, but
it has characteristics that distinguish it from most other forms
of speech. Intermediate scrutiny must be applied to this mod-
ern medium unknown to the framers of the Constitution. FCC
v. League of Women Voters
, 468 U.S. 364, 380 (1984). Broad-
cast speech, as it now exists, came into existence by the allo-
cation by the government of space on the spectrum of
frequencies for broadcasting. It is therefore licensed by the
government. Of course, the government might have abstained
from allocating frequencies, as it did before 1927. See Red
Lion Broad. Co. v. FCC
, 395 U.S. 367, 375-76 (1969). That
road was not followed. Without effective challenge, the gov-
ernment took charge and rationed the frequencies. Broadcast
television, as it exists today, exists as it does because the gov-
ernment has been a shaper of it. Speech by license of the gov-
ernment presents a formidable paradox in application of the
First Amendment.
The appellant is licensed by the government as a not-for-
profit broadcaster. It is authorized by license pursuant to 47
C.F.R. § 73.621(a), a regulation specifying that a license may
be given to a “nonprofit educational organization upon a
showing that the proposed stations will be used primarily to
serve the educational needs of the community; for the
advancement of educational programs; and to furnish a non-
profit and noncommercial broadcast television service.” The
nature of licensed broadcasting makes it inappropriate to draw
guidance from a case such as City of Cincinnati v. Discovery
Network
, 307 U.S. 410 (1993), invalidating a city ordinance
governing news racks.
When 47 U.S.C. § 399 was enacted, there was no evidence
before Congress as to the impact of political speech on public
broadcasting because no such speech had been permitted.
What Congress had before it were educated guesses by per-
sons familiar with the media. When this case began in 2006,

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3957
the government did not produce any more evidence, because
no more evidence existed.
Legislatures may often have to act on the basis of predic-
tion rather than on the basis of evidence. The conduct of a war
on poverty, or of an actual war, for example, may depend on
such legislative guesswork. As I understand the teaching of
the Supreme Court, however, a restriction on political speech,
the “highest rung of the hierarchy of First Amendment val-
ues,” League of Women Voters, 468 U.S. at 381, must nor-
mally be based on evidence of harm to a substantial
governmental interest. Id. at 391; Red Lion, 395 U.S. at 393.
Such evidence has not been provided to Congress. Accord-
ingly, the ban on speech is an unconstitutional abridgement of
the First Amendment.
This requirement was dropped by the plurality in Turner II
relying on evidence introduced on remand to the district court
— evidence obviously not before Congress when it enacted
the statute in question. See Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180, 200 (1997) (plurality opinion). It is unclear
whether this example justifies other courts in not looking for
evidence before Congress or in relying not on evidence but
predictions. I believe that we are still bound by League of
Women Voters, supra
.
Citizens United v. FEC, 130 S. Ct. 876 (2010), decided a
different question and is therefore not controlling here. It is,
however, relevant in affording the view of governmental con-
trol of speech now taken by the United States Supreme Court.
For example, Justice Kennedy writing for the Court observed:
While some means of communication may be less
effective than others at influencing the public in dif-
ferent contexts, any effort by the Judiciary to decide
which means of communications are to be preferred
for the particular type of message and speaker would
raise questions as to the courts’ own lawful author-

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MINORITY TELEVISION PROJECT v. FCC
ity. Substantial questions would arise if courts were
to begin saying what means of speech should be pre-
ferred or disfavored. And in all events, those differ-
entiations might soon prove to be irrelevant or
outdated by technologies that are in rapid flux. Id. at
890.
The recognition of the “rapid flux” in the technolo-
gies and the recognition that “substantial questions
would arise” if the courts favored or disfavored a
particular means of speech suggest the sensitivity of
the Court to the changing field of communication by
television.
Justice Kennedy went on to state:
Courts, too, are bound by the First Amendment. We
must decline to draw, and then redraw, constitutional
lines based on the particular media or technology
used to disseminate political speech from a particular
speaker. Id. at 891.
This passage’s negative reference to basing “constitutional
lines” on “particular media” could be read as embracing the
special constitutional lines now governing broadcast media.
With the rapid flux of technologies transmitting television,
there have come new forms of television that do not require
use of the narrow spectrum employed by broadcast television.
These new forms — cable, satellite, cell phone, the Internet
and the iPad — have introduced a variety of ways of commu-
nicating on television and call at least for a new look at the
government’s substantial role in licensing and regulating
speech on broadcast television.
In short, in this delicate and difficult field of rapid change,
it would be hard to believe that the restrictions on political
speech established by the statute over thirty years ago are con-

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MINORITY TELEVISION PROJECT v. FCC
3959
stitutionally valid even if they had met constitutional criteria
when they were published.
Minority TV also challenges as “vague” the prohibition of
§ 399 of any advertisement intended “to promote any service,
facility or product offered by any person who is engaged in
offering such offering for profit.” The words are clear enough.
What Minority TV appears to be objecting to is the applica-
tion of the statute as confusing or inconsistent.
As a viewer of Jim Lehrer NewsHour and its successor, I
have seen announcements that to my mind are ads. For exam-
ple, I have viewed Charles Schwab’s message, “Talk to
Chuck” — it is not about Chuck’s golf game. I have viewed
Chevron’s “We have more in common than you think” — it
appears to me to promote Chevron’s business by asking me
to identify with its efforts to improve the environment. I have
watched as a pest control company has displayed the power
of its techniques to eliminate a bug, a promotion of its ser-
vices, one would suppose. But all of the above would be rele-
vant on an as-applied challenge. Such a challenge must be
brought as original matter in the court of appeals. Conse-
quently, on this point, too, I concur in the result reached by
Judge Bea.
PAEZ, Circuit Judge, dissenting:
I agree with Judge Bea’s conclusions, contained in Part III
of his opinion, that substantial evidence supports Congress’s
determination that advertising by for-profit entities on public
broadcast stations poses a real harm, and that 47 U.S.C.
§ 399b(a)(1) does not burden substantially more speech than
necessary to further the government’s legitimate interest.
However, as I explain in greater detail below, I agree neither
with Judge Bea’s analytical approach, nor with his conclusion
that §§ 399b(a)(2) and (3) impose an unconstitutional,

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MINORITY TELEVISION PROJECT v. FCC
content-based restriction on speech. Accordingly, I respect-
fully dissent.1
For almost sixty years, noncommercial public broadcasters
have been effectively insulated from the lure of paid advertis-
ing. The court’s judgment will disrupt this policy and could
jeopardize the future of public broadcasting. I am not per-
suaded that the First Amendment mandates such an outcome.
In my view, §§ 399(a)(2) and (3) satisfy the scrutiny standard
set forth in F.C.C. v. League of Women Voters, 468 U.S. 364
(1984). I therefore disagree with Judge Bea’s heavy reliance
on a commercial speech case, City of Cincinnati v. Discovery
Network, Inc.
, 507 U.S. 410 (1993), to impose an unprece-
dented and unwarranted burden of proof on the government.
I also take issue with Judge Bea’s contention that Turner
Broad. Sys., Inc. v. F.C.C. (“Turner I”)
, 512 U.S. 622 (1994)
and Turner Broad. Sys., Inc. v. F.C.C. (“Turner II”), 520 U.S.
180 (1997) require the government to prove its case by pre-
senting “ ‘[s]ubstantial evidence[,]’ [which] must include
‘substantial evidence in the record before Congress’ at the
time of the statute’s enaction.” Op. at 3938 (quoting Turner
II
, 520 U.S. at 211) (internal citation omitted). Because
§§ 399b(a)(2) and (3) are narrowly tailored provisions that
fulfill the government’s substantial interest in noncommercial
public broadcasting, I would affirm the district court’s order
granting summary judgment to the FCC.

I.

I agree with both Judge Bea and Judge Noonan that
because § 399b regulates broadcast media, the broadcast-
specific version of intermediate scrutiny2 should guide our
1I concur, however, in the Memorandum disposition filed simulta-
neously with this opinion.
2It is important to distinguish the broadcast-specific version of interme-
diate scrutiny from other scrutiny standards that are used in First Amend-
ment cases. Parts of Judge Bea’s opinion inappropriately follow the

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MINORITY TELEVISION PROJECT v. FCC
3961
analysis of this case. As Judge Bea’s opinion notes, a regula-
tion will survive such scrutiny if it is “narrowly tailored to
further a substantial government interest.” League of Women
Voters
, 468 U.S. at 380 (cited at Op. 3935).3 As noted, I also
agree with Judge Bea’s twin conclusions that the government
has a substantial interest in noncommercial public broadcast-
ing and that § 399b furthers this interest. I differ from both
Judge Bea and Judge Noonan in my conclusion that
§§ 399b(a)(2) and (3) are sufficiently tailored to survive
broadcast scrutiny. Judge Bea’s analysis draws from cases
involving non-broadcast, content-neutral, and commercial
speech restrictions. I disagree with this approach, and would
intermediate scrutiny framework that the Supreme Court applied in Turner
I
and Turner II. The standard outlined in the Turner cases—which
involved First Amendment challenges to content-neutral, non-broadcast
regulations—is not relevant here. In light of the unique nature of broadcast
speech, for almost eighty years the Supreme Court has refused to apply the
same level of First Amendment scrutiny to broadcast regulations that it
has applied to regulations governing, for example, newspapers or maga-
zines. See League of Women Voters, 468 U.S. at 376-77 (“Were a similar
ban . . . applied to newspapers and magazines, we would not hesitate to
strike it down as violative of the First Amendment.”); see also National
Broad. Co. v. U.S.
, 319 U.S. 190, 226-27 (1943); Columbia Broad. Sys.,
Inc. v. Democratic Nat. Comm.
, 412 U.S. 94, 101 (1973); F.C.C. v. Pacif-
ica Foundation
, 438 U.S. 725, 748 (1978). Because § 399b is a content-
based regulation of broadcast media, the intermediate broadcast scrutiny
test from League of Women Voters provides the correct framework for
evaluating Minority’s First Amendment challenge to §§ 399b(a)(2) and
(3). Because Discovery Network, Turner I, and Turner II involved non-
broadcast regulations, I do not share Judge Bea’s view that these cases
provide “additional elaboration” of the standard outlined in League of
Women Voters
. Op. at 3934; see also Op. at 3937-40.
3There are two key differences between strict scrutiny and intermediate
broadcast scrutiny. First, the government interest need only be “substan-
tial,” rather than “compelling,” to survive intermediate broadcast scrutiny.
Second, the “narrowly tailored” requirement of intermediate broadcast
scrutiny is more flexible than the corresponding requirement for strict
scrutiny. Determining the exact meaning of “narrowly tailored” is a diffi-
cult exercise because the Supreme Court has not explicitly defined this
term in its broadcast cases.

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MINORITY TELEVISION PROJECT v. FCC
decide this case by hewing closely to League of Women
Voters
, which is directly on point.
From League of Women Voters we can derive several prin-
ciples to guide our analysis of whether §§ 399b(a)(2) and (3)
are narrowly tailored. In League of Women Voters, the
Supreme Court explained that a broadcasting regulation is
narrowly tailored when it is not “manifest[ly] imprecis[e],”
468 U.S. at 392, when it is not patently overinclusive or
underinclusive, id. at 396, and when “less restrictive means”
of furthering the government’s interest are not “readily avail-
able,” id. at 395. Moreover, if a content-based broadcasting
regulation “far exceeds” what is necessary to satisfy the gov-
ernment’s interest, then it is not narrowly tailored.” Id. at 395.
In my view, §§ 399b(a)(2) and (3) satisfy these requirements.
First, the law is not “patent[ly] overinclusive[ ].” Id. at 396.
On the contrary, the legislative history of § 399b demonstrates
that the law was crafted to restrict the least possible amount
of speech. Before the passage of § 399b, public broadcasters
were prohibited from airing all advertisements. See, e.g., 17
Fed. Reg. 4062 (1952) (47 C.F.R. § 3.621(d), (e)) (later
moved to 47 C.F.R. § 73.621(d), (e)); In the Matter of
Comm’n Policy Concerning the Noncommercial Nature of
Educ. Broad. Stations
(“Comm’n Policy I”), 86 F.C.C. 2d
141, 142 (1981) (discussing the “existing proscription against
all promotion of products and services) (emphasis in origi-
nal). The Public Broadcast Amendments Act of 1981, codi-
fied in 47 U.S.C. §§ 399a and 399b, modified these
restrictions to enhance donor acknowledgments, to allow pub-
lic broadcasters to air any content (including advertisements)
for which consideration is not received, and to allow non-
profit organizations to advertise services, products, and facili-
ties. In light of these modifications, § 399b is less restrictive
of public broadcasters’ First Amendment rights than the stat-
ute at issue in League of Women Voters, which broadly pro-
hibited all editorial content from being broadcast. In contrast
to the statute at issue in League of Women Voters, § 399b

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gives broadcasters programming flexibility while still insulat-
ing the stations from the “commercial market pressures” that
result from reliance on advertising revenue. Comm’n Policy I,
86 F.C.C. 2d at 142. Thus, § 399b is not overinclusive—at
least not in my view—nor does it “far exceed[ ]” what is nec-
essary to satisfy the government’s interest in promoting non-
commercial educational broadcasting. See League of Women
Voters
, 468 U.S. at 395.4
Second, § 399b is not underinclusive. In League of Women
Voters, the Court held that the statute in question was
underinclusive because it barred editorializing but did not bar
stations from choosing to air partisan content. 468 U.S. at
396-97. Considering that the government’s purported interest
was to prevent the broadcast of controversial or partisan opin-
ions, the law was minimally effective. Id. Thus, the Court
held that the underinclusive law, which “provide[d] only inef-
fective or remote support for the government’s purpose,” was
not valid under the First Amendment. Id. (quoting Central
Hudson Gas & Electric Corp. v. Public Service Comm’n of
N.Y.
, 447 U.S. 557, 564 (1980)).
Unlike the underinclusive statute at issue in League of
Women Voters, Congress’s decision to allow non-profit adver-
tising on public broadcasts has not rendered § 399b ineffec-
tive. According to Stanford Professor Roger G. Noll, a
leading scholar on the economics of television, § 399b’s ban
on paid commercial advertisements, political advertisements,
and issue advertisements has effectively insulated public
4I understand Judge Bea’s argument to be that he defers to Congress’s
judgment that market pressure poses a danger to public broadcasting, yet
he draws a distinction between the type of market pressure which for-
profit and political or public issue advertisers will exert. Op. at 3946-47,
3948-49. Such a distinction is untenable in light of the tremendous sums
spent on political campaign advertisements—$2.2 billion in 2008—which
represent a considerable source of potential revenue by any measure.
Judge Bea reaches his conclusion that § 399b is overinclusive only by dis-
counting this evidence. See Op. at 3948-49.

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MINORITY TELEVISION PROJECT v. FCC
broadcasting from the market failure problem of commercial
broadcasting. Lance Ozier, a senior officer of the WGBH
Educational Foundation,5 similarly explained that advertising
by non-profit entities “do[es] not present the same danger” to
public television as for-profit advertising. Unlike commercial,
political, and issue advertisements, non-profit announcements
— according to Ozier—are viewed as “consistent with the
public education mission of public television,” and therefore
do not threaten other funding sources. Particularly, Ozier
explains that the presence of just a small number of non-profit
advertisers creates only a minimal risk that stations will seek
to boost viewership in order to increase advertising sales.
Non-profit advertising sales, for example, did not even regis-
ter on Professor Noll’s breakdown of public television reve-
nue sources. As an additional anecdote, Minority has
produced just one instance in which a non-profit entity pur-
chased an announcement on a public broadcast station. In
short, advertisements by non-profit organizations do not
appear to foster the market failure problem of public broad-
casting that Congress sought to avoid in enacting § 399b.6
Thus, I would conclude that §§ 399b(a)(2) and (3) are not
unconstitutionally underinclusive.
Third, there appear to be no “less restrictive means” that
are “readily available” to further the government’s interest in
promoting public broadcasting. Neither Judge Bea nor Judge
Noonan offers any alternative to the current regime, and cer-
tainly not one that is “less restrictive” and “readily available.”
Similarly, Professor Noll’s report lays out some plausible
alternatives to § 399b, but concludes that these alternatives
are not reasonable.
5WGBH is the largest producer of primetime and online programming
for the Public Broadcasting Service (PBS) and is also a major producer of
national programs for many public radio stations.
6I believe that this evidence belies Judge Bea’s glib contention that
“there is no reason to think that public issue and political advertisers have
any greater propensity to seek large audiences than do nonprofit advertis-
ers.” Op. at 3953.

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MINORITY TELEVISION PROJECT v. FCC
3965
Thus, § 399b is not “manifest[ly] imprecis[e],” League of
Women Voters, 467 U.S. at 392, nor is it patently overinclu-
sive or underinclusive, id. at 396. Nor are there “less restric-
tive means” to § 399b that are “readily available.” Id. at 395.
Accordingly, I would hold that § 399b satisfies the scrutiny
test laid out in League of Women Voters and affirm the district
court’s grant of summary judgment to the FCC.

II.

Judge Bea’s opinion heavily relies on an inapposite com-
mercial speech case, City of Cincinnati v. Discovery Network,
507 U.S. 410 (1993), to strike down §§ 399b(a)(2) and (3). In
my view, Judge Bea’s reliance on, and interpretation of, Dis-
covery Network
are flawed for three reasons.
First, Judge Bea relies on Discovery Network for the propo-
sition that League of Women Voters’s narrow tailoring
requirement demands that the government prove that the
speech prohibited by §§ 399b(a)(2) and (3) poses a greater
threat to the government’s interest than the speech allowed.
Op. at 3941. Because Discovery Network involved non-
broadcast commercial speech, it has little relevance to this
case. Discovery Network neither interpreted nor applied the
narrow tailoring requirement of intermediate broadcast scru-
tiny, so Judge Bea’s reliance on Discovery Network is
unfounded.
Second, Judge Bea’s initial mistake of relying on Discovery
Network is compounded by his misreading of the case. Judge
Bea states that under Discovery Network, “the government
must prove that the speech banned . . . poses a greater threat
than the speech permitted.” Op. at 3941 (emphasis in origi-
nal). This is not a fair reading of Discovery Network. The por-
tion of Discovery Network cited by Judge Bea contains the
Court’s observation that all newsracks, whether containing
commercial newspaper or noncommercial handbills, were
“equally unattractive.” 507 U.S. at 425. Accordingly, the

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MINORITY TELEVISION PROJECT v. FCC
Court in Discovery Network found that the law in question
was not effective at addressing the government’s interest in
avoiding visual blight on the streets of Cincinnati. Id. at 428.
I therefore read Discovery Network to support the accepted
notion that a regulation burdening speech cannot be underin-
clusive to the point of inefficacy. Accord League of Women
Voters
, 468 U.S. at 397. I do not believe, however, that Dis-
covery Network
stands for the broad proposition that the gov-
ernment must prove that all banned speech is more harmful
than all allowed speech. This holding imposes a burden on the
government that surpasses even the exacting standard of strict
scrutiny. In order to meet Judge Bea’s heavy burden, Con-
gress would have to ban either all advertisements or no adver-
tisements because no regulation that creates categorical
distinctions could plausibly encompass only the most harmful
content imaginable.7
Third, even if Discovery Network were applicable to this
case, which I believe it is not, I disagree with Judge Bea’s
unsubstantiated conclusion that public issue and political
advertisements “pose identical threats” to the unique pro-
gramming of public broadcasting as non-profit advertise-
ments. Op. at 3954. Since Congress intended to shield public
programming from “special interests—be they commercial,
political, or religious,” this proposition holds no merit. 127
Cong. Rec. 13145 (June 22, 1981) (remarks of Rep. Gonza-
lez) (emphasis added). Political ads run directly counter to
Congress’s interest in barring political interest groups (and
their advertising dollars) from affecting programming deci-
sions. There was no similar concern by Congress regarding
7Judge Bea’s approach also flatly contradicts later commercial speech
cases. See, e.g., Greater New Orleans Broad. Ass’n, Inc. v. United States,
527 U.S. 173, 188 (1999) (“The Government is not required to employ the
least restrictive means conceivable.”); see also id. (stating that narrow tail-
oring requires “a fit that is not necessarily perfect, but reasonable; that rep-
resents not necessarily the single best disposition but one whose scope is
in proportion to the interest served”) (quoting Board of Trustees of State
Univ. of N.Y. v. Fox
, 492 U.S. 469, 480 (1989)).

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MINORITY TELEVISION PROJECT v. FCC
3967
advertisements by non-profit entities. We are not entitled to
simply dismiss congressional intent on this matter. See Turner
II
, 520 U.S. at 196 (“[D]eference must be accorded to [con-
gressional] findings as to the harm to be avoided and to the
remedial measures adopted for that end, lest [the courts]
infringe on traditional legislative authority to make predictive
judgments when enacting nationwide regulatory policy.”).
Moreover, the government has produced evidence that
political advertising presents a greater harm to public broad-
casting than non-profit advertising. As described above, non-
profit announcements on public broadcasts are virtually negli-
gible, and could easily be swamped by the very large market
for political advertising. Congress could have reasonably
feared the corrosive impact of advertising in general, but
viewed non-profit advertisements as harmless to the public
interest mission of public broadcasting.8 In addition, while
Congress has long sought to shield public broadcasting from
political influences, there is no evidence that Congress has
viewed non-profit entities as a harmful outside influence. As
Ozier’s declaration makes clear, the content and quantity of
non-profit advertising do not pose the same sort of threat to
8It bears repeating that $2.2 billion represents a large market by any
measure. Moreover, Judge Bea’s analysis of the potential effects of politi-
cal advertising on the “nature and prevalence” of public television’s
unique programming, Op. at 3948, examines only one side of the coin.
While he may be correct that a political candidate cartoon is a laughable
prospect, Congress could well have feared that market pressures would
entice public television stations to limit children’s and other educational
programming in favor of more lucrative advertising. Indeed, as Judge Bea
acknowledges, “[e]specially in an election season, we see how a news
broadcaster may be tempted to alter the content of its public affairs pro-
gramming if it thinks it can garner additional advertising dollars from one
or another campaign, SuperPAC, or advocacy group by doing so.” Op. at
3949. In light of the record evidence supporting such a conclusion, I find
Congress’s determination infinitely reasonable.

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MINORITY TELEVISION PROJECT v. FCC
public broadcasting’s financial model as other sorts of advertise-
ments.9

III.

Finally, Judge Bea errs in his narrow view of what evi-
dence we may consider when determining the constitutional-
ity of § 399b. In my view, Judge Bea misreads Turner II to
conclude that the government must prove its case by present-
ing “ ‘[s]ubstantial evidence[,]’ [which] must include ‘sub-
stantial evidence in the record before Congress’ at the time of
the statute’s enaction.” Op. at 3938 (quoting Turner II, 520
U.S. at 211) (internal citation omitted). I disagree with Judge
Bea’s view that we may not consider evidence supporting the
constitutionality of §§ 399b(a)(2) and (3) unless some of that
evidence was present in the record before Congress at the
time of the statute’s enactment.
The Constitution imposes only two procedural require-
ments that Congress must follow in enacting laws: bicameral-
ism and presentment. In INS v. Chadha, 462 U.S. 919, 951
(1983), the Court explained: “It emerges clearly that the pre-
scription for legislative action in Art. I, §§ 1, 7 represents the
Framers’ decision that the legislative power of the Federal
government can be exercised in accord with a single, finely
wrought and exhaustively considered, procedure.” See also
Sable Comm’n of California, Inc. v. F.C.C.
, 492 U.S. 115,
133 (1989) (Scalia, J., concurring) (“Neither due process nor
the First Amendment requires legislation to be supported by
committee reports, floor debates, or even consideration, but
only by a vote.”). Judge Bea’s conclusion that the constitu-
tionality of a federal law might turn on the quantity and qual-
9Specifically, Ozier explains in his declaration that “WGBH, like other
noncommercial educational stations, currently accepts announcements
from not-for-profit entities . . . These announcements do not present the
same danger to public television’s other funding sources, or its cost struc-
ture, as would for-profit advertising . . .”

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MINORITY TELEVISION PROJECT v. FCC
3969
ity of evidence before Congress at the time of enactment
violates this fundamental principle by effectively imposing a
procedural requirement on Congress’s legislative process.
Judge Bea acknowledges that there is no requirement of a
“particular type of evidence in the record before Congress,”
Op. at 3946, and rightly declines Minority’s request to weigh
the “quality of the evidence” before Congress, id at 3946. Yet
Judge Bea repeatedly characterizes the government’s burden
as requiring a showing of “ ‘[s]ubstantial evidence[,]’ [which]
must include ‘substantial evidence in the record before Con-
gress’ at the time of the statute’s enaction” to support § 399b.
See Op. at 3940; see also Op. at 3944, 3946, 3947, 3949.
Judge Bea’s characterization misrepresents one sentence
from Turner II. In reading the Turner cases together, it is
apparent that the Supreme Court did not intend for lower
courts to be restricted to the record before Congress, as an
antecedent and necessary prerequisite to the consideration of
other evidence, in assessing the constitutionality of federal
laws. In Turner I, the Court expressly recognized that the par-
ties might introduce additional evidence on remand that was
not contained in the record before Congress at the time of the
challenged law’s enactment. In remanding the case for further
factual development, the Court stated that “[w]ithout a more
substantial elaboration in the District Court of the predictive
or historical evidence upon which Congress relied, or the
introduction of some additional evidence
. . . we cannot deter-
mine whether the threat to broadcast television is real enough
to overcome the challenge to the provisions made by these
appellants.” Id. at 667 (emphasis added). Three years later, in
Turner II, the Court considered evidence that was not con-
tained in the record before Congress at the time of the chal-
lenged law’s enactment. See generally Turner II, 520 U.S. at
200-12 (repeatedly referencing expert declarations that were
not part of the congressional record at the time of the chal-
lenged law’s passage). In outlining its task, the Court
explained, “[w]e examine first the evidence before Congress

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MINORITY TELEVISION PROJECT v. FCC
and then the further evidence presented to the District Court
on remand to supplement the congressional determination
.”
Id. at 196 (emphasis added).
Thus, I read the Turner cases as identifying two sources of
evidence upon which a court may rely in assessing the consti-
tutionality of a federal law: the record before Congress at the
time of enactment, and additional evidence presented in the
district court. To the extent that a district court considers evi-
dence in the record before Congress at the time of enactment,
it must defer to Congress’s reasonable judgments. Accord-
ingly, the Court explained that for purposes of considering
evidence from the congressional record, “[t]he question is not
whether Congress, as an objective matter, was correct to
determine [that the challenged law] was necessary to [further
the government’s interest]. Rather, the question is whether the
legislative conclusion was reasonable and supported by sub-
stantial evidence in the record before Congress.” 520 U.S.
211. I do not interpret this sentence to mean that courts must
locate evidence in the record before Congress at the time of
the statute’s enactment which supports Congress’s legislative
determination before it may consider additional evidence
regarding the statute’s constitutionality. I could not uncover
any case in which a court took this extreme approach, and I
would not do so here.
Judge Bea’s contention that his reading of Turner II
imposes a substantive rather than a procedural requirement on
the legislative process, Op. at 3951-52, n. 10, does not alter
my conclusion. His approach imposes a procedural require-
ment to the passage of a constitutional statute. Otherwise
stated, Judge Bea’s analysis permits the constitutionality of a
statute to rest on Congress’s attention to creating a suffi-
ciently detailed record prior to the statute’s enactment, rather
than on the practical force and effect of the statute at the time
it is challenged. I do not believe this additional requirement
finds support in the Constitution. See Chadha, 462 U.S. at
951.

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MINORITY TELEVISION PROJECT v. FCC
3971

IV.

For the foregoing reasons, I would affirm the district
court’s order granting the FCC’s motion for summary judg-
ment and denying Minority’s motion for summary judgment.

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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 12 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MINORITY TELEVISION PROJECT,
No. 09-17311
INC.,
D.C. No. 3:06-cv-02699-EDL
Plaintiff - Appellant,
v.
MEMORANDUM*
FEDERAL COMMUNICATIONS
COMMISSION; et al.,
Defendants - Appellees.,
and
LINCOLN BROADCASTING
COMPANY,
Intervenor.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
Before: NOONAN, PAEZ, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Petitioner Minority Television Project (“Minority”) appeals the district
court’s dismissal of its as-applied First Amendment challenges to 47 U.S.C.
§ 399b, as well as its First Amendment challenges to 47 C.F.R. § 73.621(e), the
Federal Communications Commission (“FCC”) order which implements § 399b.
Minority further appeals the district court’s grant of summary judgment to the
government, which held § 399b’s ban on paid messages by for-profit entities which
“promote” services, facilities, or products is not unconstitutionally vague.1 We
affirm.2
The district court correctly dismissed Minority’s as-applied challenges to
§ 399b, as well as its challenge to 47 C.F.R. § 73.621(e). Section 399b was applied
to Minority 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 challenges to
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
1 We address Minority’s contention that § 399b imposes an unconstitutional
content-based restriction on speech in an opinion filed concurrently with this
memorandum.
2 Because the parties are familiar with the facts of this case, we repeat them
here only to the extent necessary to explain our decision.
2

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validity of . . . all final orders of the Federal Communications Commission.”). See
also United States v. Duinfer, 219 F.3d 1004, 1007 (9th Cir. 2000) (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 which was initially filed in federal district court,
see Greater New Orleans Broadcasting Association 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 silento.” United States v. L.A. Trucker Truck Lines, Inc., 344
U.S. 33, 38 (1952).
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.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).
The meaning of the term “promote” is clear in the vast majority of circumstances.
Where 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. A statute
3

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may overcome a First Amendment vagueness challenge if a government body
provides administrative regulations that “sufficiently narrow potentially vague or
arbitrary interpretations of the ordinance.” Hoffman Estates v. Flipside, Hoffman
Estates, 455 U.S. 489, 504 (1982).

AFFIRMED.

4

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