Nielsen Media Research appears to have gotten a big Independence Day present from a California judge.
In denying Hispanic broadcaster Univision's preliminary injunction against the roll-out of Nielsen's Local People Meters in Los Angeles July 8, Superior Court Judge Stephen Czuleger concluded that the meters may not just be boxes with buttons and wires, but noncommercial speakers deserving heavy protection from assault.
In fact, the judge said that the speech question alone warranted denying the injunction without ever getting to the question of whether the meter roll-out violates the state's unfair competition law, though he said Univision didn't make that case either.
"[But] more troubling to the court are the implications regarding free speech..." he wrote. "Here the ratings system may qualify as a noncommercial speech because, though the defendant is a commercial speaker, the intended audience is not necessarily likely to be actual buyers of defendant's services. Though advertising sellers and buyers rely on the ratings system, the ratings system itself does not propose a commercial transaction. Therefore the speech can be afforded full First Amendment protection [Editor's note: commercial speech has a lower threshold for regulation].
If that rationale held up--and lawyers for the other side will likely latch on to the "may" in his ruling, that would mean that any attempt to block these meters would have to meet the strict scrutiny test.
That test says that protected speech can only be regulated if there is a compelling government interest, and only if the regulation is the most narrowly tailored means to that end. Outright bans or penalties that have the effect of bans are rarely considered the least restrictive means.
That's in part what submarined the Child Online Protection Act in the Supreme Court last week, and why indecent speech can only be channeled rather than banned.
"This is a very significant decision," said Nielsen spokesman Gary Holmes. Holmes did not want to address the Constitutional issues--"the lawyers are still on the plane back from L.A.," he said.
There was probably some champagne on that plane, though, since Nielsen can arm itself with this ruling as it rolls out the meters in Chicago in August and San Francisco in September.
Some minority groups and Fox, which loses viewers to the meters, are trying hard to block their roll-out, arguing they undercount minority broadcast viewership. Nielsen says they only better track that viewership's flight to other places, including cable.