Kozinski Questions Rationale for Regulating Broadcasting
The chief judge of the 9th U.S. Court of Appeals questioned whether the rationale supporting regulation of broadcasters’ speech rights from the landmark Red Lion Broadcasting v. FCC case in 1969 still stands up. During oral argument with an en banc panel of 9th Circuit judges, Chief Judge Alex Kozinski and his colleagues on the bench had tough questions for both parties in the case Minority TV Project v. FCC on Tuesday. Kozinski indicated one possible outcome of the case would be a complete ban on all ads on noncommercial stations. But he seemed to grow the most animated when discussing the Red Lion case.
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Broadcast licenses are “far less valuable today” than they were when the Supreme Court decided the Red Lion case, because it’s now possible to reach millions of viewers or listeners through other media, said Kozinski. Back then, if someone wanted to reach a mass audience, “the spectrum was it, there was nothing else,” he said. “The world is very different today.” He said a video on YouTube can reach more people than the signal of many radio stations could in 1952. “Why should we treat whatever the Supreme Court said there as having any validity today when [broadcast] is such as small part of the market,” he asked Mark Stern, the Department of Justice attorney representing the U.S. “We live in a world of YouTube,” said Kozinski.
The case is about whether noncommercial broadcasters can sell ads and underwriting messages to political candidates and groups seeking to place issue ads. Those categories of sponsorship were banned when Congress in 1981 changed the law to allow noncommercial stations to accept some sponsors, according to briefs filed in the case. Last year, a smaller panel of judges ruled the ban unconstitutional (CD April 13 p2) and the government petitioned for a rehearing before an en banc panel.
During a separate line of inquiry, Kozinski asked Minority TV Project Counsel Walter Diercks why the court shouldn’t just completely toss the 1981 statute. Under that outcome, noncommercial stations wouldn’t be able to accept ads of any kind, political or otherwise, he said. “Why wouldn’t we just strike it down and nobody gets advertising?” Kozinski said. “If we think the distinctions drawn by the statute are unconstitutional, why wouldn’t we just strike down the statute and go back to the day when there was no advertising permitted?"
Other judges on the 11-judge panel also prodded at the arguments made by both parties. “It was a hot bench,” Diercks said after the hearing. “It was obvious that every judge had read everything and thought about the case,” he said. “Beyond that, it’s hard to say anything more.”