June 30, 2014

Supreme Court denies cert in Minority TV free speech case

By Anastasia P. Boden Attorney

Today the Supreme Court denied cert in a First Amendment challenge to the FCC’s ban on certain types of paid advertising on public television stations. The ban prohibits commercials for for-profit businesses and politicians, but allows the stations to broadcast ads for non-profit entities. The Minority Television Project (Minority TV), a public television station, sued the FCC after it was fined $10,000 for airing paid ads for Korean Air, Gingko Biloba Tea, and the like.  Both the district court and the Ninth Circuit upheld the ban based on the decades-old Supreme Court case of Red Lion Broadcasting v. FCC—which ruled that, because “broadcast television” is scarce, the government has a greater interest in regulating it, and any restrictions will be analyzed under a deferential standard.  The parties focused on whether that rationale still holds today, given the abundance of media sources.

In our amicus brief, we urged the Court to take up the case for an additional reason: to get rid of the illusory distinction between commercial and non-commercial speech. Under current Supreme Court doctrine, non-commercial speech is subject to strict judicial scrutiny, while “commercial” speech is reviewed under a multi-factor intermediate standard.  The First Amendment makes no such distinction—it purports to protect all types of speech, whether made to induce a purchase or spoken in political protest. Moreover, we noted that advertisements nowadays include both commercial and creative aspects, and often political aspects too (see this awesome Chipotle commercial/mini-film)—and as such are deserving of full First Amendment protection.

Despite the Supreme Court’s denial today, we are optimistic about the future of commercial speech. Given the Court’s robust protection of speech made by corporations, and speech made for marketing purposes, there’s reason to think that the Court will take commercial speech seriously when it grants such a case.

For more on our other First Amendment cases, click here.

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