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Court Declares Public TV's Ban on Political Ads Unconstitutional

Says There Is No Evidence It Would Harm Programming

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Will your children be accosted by ads from Mitt Romney and Barack Obama while watching "Sesame Street "? A court ruling today makes it a possibility (even if not a strong one).

Stating that there is no concrete evidence that political and public-issue ads would harm the niche programming of public TV and radio stations, an appeals court ruled the law banning such ads unconstitutional. A three-judge panel in California voted 2-1 that the First Amendment trumped the government's concerns.

The lawsuit in question was brought by Minority Television Project, a California nonprofit that operates San Francisco Bay-area public-TV station KMTP. The station was fined by the Federal Communications Commission for violating the ban on public stations' airing of paid ads from corporations.

The station sued the FCC, claiming the ban on ads violated its right to free speech. Public TV and radio stations have been barred from airing ads for or against political candidates, ads expressing view on topics of public interest, or ads for products placed by for-profit companies.

In his majority opinion, Circuit Judge Carlos T. Bea wrote that one of the key issues was the law's content-based selectivity. "The fact that Congress chose not to ban all advertisements, but left a gap for certain nonprofit advertisements, is fatal to its case," the court said. "That is the kind of picking-and-choosing among different types of speech that Congress may not do, absent evidence to show that Congress' favoritism is necessary to serve its substantial interest."

That said, the court upheld the ban on product ads from for-profit entities. It's reasoning? The massive budgets of for-profit entities -- and their hunger for equally massive audiences -- could nudge programmers away from niche educational programming and toward lowest-common denominator fare seen on broadcast and cable networks.

While there is evidence that for-profit advertising would have an adverse effect on such programming, the court wrote, "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."

But this doesn't necessarily mean a gusher of political advertising will tarnish public programming.

The court declared that "Congress is free to 'try again.' If there truly is evidence that broadcast of public-issue and political advertisements would cause substantial harm -- that their broadcast would change program content as directly and substantially as would for-profits' advertising -- Congress could compile a record to show as much, and perhaps pass a law restricting such speech. That record would contain evidence, not mere conjecture and anecdote. It is evidence of harm to a substantial governmental interest -- not mere conjecture -- which the First Amendment requires."

A call to the FCC's media office seeking comment about the ruling wasn't immediately returned. There was no answer at KMTP's office in Palo Alto, Calif.

--With Bloomberg News

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