One of the last sanctuaries from campaign advertising may have finally been breached. A federal appeals court ruling has widened the door for ads on the public airwaves.
Campaign spots sandwiched between segments of NPR’s “Morning Edition” or PBS’s “Sesame Street” may still be a ways off, but in a recent ruling the 9th Circuit U.S. Court of Appeals declared that the prohibition on political and issue ads on the public airwaves violated the First Amendment. The ruling is showing ad buyers a glimpse of the future.
“It’s a new territory that has never before been an option,” says Paul Winn, a consultant with Smart Media Group.
Public radio listeners and TV viewers are a ripe audience for campaigns, and Winn suggests it’s not only Democrats who would be interested in advertising on public airwaves. Two thirds of NPR listeners, for instance, have a bachelor’s degree, compared to only a quarter of the general population. Moreover, their median age is 50 – primetime for voter participation.
“Radio reaches a significant voting population that both sides are going to want to attract,” says Winn.
The case at hand involves the operators of the San Francisco public TV station KMTP. Minority Television Project, Inc. sued the Federal Communications Commission after it was fined $10,000 for airing ads from companies including State Farm and Chevrolet. Minority contended that the government’s ban on certain ads airing on public stations was unevenly applied considering non-profits were acceptable but campaign and issue ads were not.
The statute, the court ruled, is “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 (campaign, issue and for-profit) of advertising messages.”
In the same 2-1 ruling, the court upheld the ban on ads for goods and services by for-profit entities. (Stations are allowed to broadcast paid promotional messages for products and services of nonprofit corporations.)
"It is a significant victory," says Walter Diercks, a lawyer for the California-based non-profit. The government should not be "picking and choosing what is appropriate content."
The government had argued that by accepting those ads, stations would compromise their educational mission. Minority was among the few public stations in the country that didn’t accept funds from the Corporation for Public Broadcasting, court documents show.
Even if the result is an opening for campaigns to take their paid messages to the public airwaves, the format would definitely take some getting used to, says Winn. Campaigns will need to be nimble enough to shift from 30-second TV ads and 50-second radio spots to public radio sponsorships that will likely follow a different script. And other questions still remain.
Will stations be required to allow, say, even time and take advertisements from multiple candidates? How will the advertisements be booked and run? If there are more ads than available space, how would stations choose what airs?
Public broadcasters have their own set of concerns—not the least of which is how members and donors would react to some form of political advertising on their stations. For now, the FCC has requested guidance from the Justice Department.