Federal law prohibits non-commercial broadcasters from airing paid advertisements (a) for for-profit entities, (b) issues of public importance or interest, and (c) political candidates.  In Minority Television Project, Inc. v. Federal Communications Commission (9th Cir 2013) 736 F.3d 1192 (en banc) (lead opn. Of McKeown, J.), the plaintiff public broadcast station challenged the federal statute limiting such advertisements.  The district court granted summary judgment for the defendant FCC.  The Ninth Circuit eventually affirmed by a ruling en banc with three dissenting opinions.

The plaintiff claimed that the restrictions were facially unconstitutional under the first amendment.  Relying upon the recent Supreme Court decision in Citizens United v. FEC (2010) 558 U.S. 310 (involving campaign financing), the plaintiff argued that the district court and the Ninth Circuit should have applied a strict scrutiny analysis to the federal statute.  Strict scrutiny requires that the regulation of speech be justified by a compelling governmental interest and that the limitation be narrowly drawn to serve that interest, with the curtailment of free speech actually being necessary to the solution.

The en banc panel of the Ninth Circuit rejected application of strict scrutiny.  Instead, it applied an intermediate scrutiny test which the Supreme Court enunciated in FCC v. League of Women Voters (1984) 468 U.S. 364.  Under this test, a content based regulation of broadcast speech would pass constitutional muster if it is sufficiently tailored to the harms it sought to prevent, or in other words, it must be narrowly tailored to further a substantial governmental interest. With application of that lesser test, the court upheld summary judgment for the FCC.

Given the Supreme Court’s propensity to reverse Ninth Circuit decisions, the majority’s recent interest in rejecting government regulation of political speech, and a strong dissenting opinion by Chief Judge Kozinski, there is very good chance that the Court will grant certiorari this week.