A federal appeals court will rehear a case in which a split three-judge panel ruled it was unconstitutional to prohibit non-commercial broadcast stations from selling political advertisements.

A federal statute, 47 U.S.C. § 399b, generally prohibits public broadcasters from airing “advertisements,” which the statute defines to include paid messages that (1) promote a for-profit entity’s products, (2) air a person’s views on “matter[s] of public importance or interest,” or (3) support or oppose political candidates.

In April, a panel of the U.S. Court of Appeals for the Ninth Circuit  ruled 2-1 that the bans on paid public-issue and political-candidate ads violated the First Amendment. The panel majority found that, although the government has a substantial interest in protecting high-quality educational programming on public broadcast stations, the government had not presented enough evidence showing that banning public broadcasters from airing political ads was “narrowly tailored” to achieving that goal. The panel upheld the provision banning public broadcasters from airing paid ads for commercial products.

The government asked that the case be heard by the full Ninth Circuit, thus staying the panel’s decision while the Ninth Circuit considered the government’s request. The government’s petition for rehearing argued that the advertising restrictions “are necessary to preserve the character of public broadcasting” as a service that can offer the kind of educational programming that would not draw enough viewership to survive on a commercial station. The government argued that the panel decision failed to give proper weight to evidence showing Congress’ concern that public broadcasters would reduce the amount of niche programming they offered if by doing so they could attract paid advertisements, including political ads.

On November 21, the Ninth Circuit granted an en banc rehearing, which means the earlier panel ruling will not go into effect but instead will be replaced by the full court’s decision.