Religious broadcasters are asking the Supreme Court to rule on whether their paying higher fees to stream music online than secular outfits like National Public Radio violates their First Amendment rights.
The National Religious Broadcasters Noncommercial Music License Committee says it is required to pay 18 times what NPR pays in royalty rates, which are set every five years by the Copyright Royalty Board.
Noncommercial religious webcasters with an audience threshold of 218 average listeners were required to pay a much higher rate in 2021 than secular NPR noncommercial webcasters, which the religious group says amounts to a “two-tier” system.
They say the different treatment runs afoul of the Religious Freedom Restoration Act and the First Amendment.
“The result is a two-tier noncommercial rate structure with secular NPR stations at the top and religious stations on the bottom,” the group said in its February petition to the high court. “This discriminatory treatment elevates secular content and suppresses religious speech online, putting religious stations at a severe disadvantage in the marketplace of ideas.”
Noncommercial webcasters are exempt from certain forms of taxation under the Internal Revenue Code.
The Department of Justice, representing the Copyright Royalty Board and the Librarian of Congress, waived its right to respond to the petition.
It would take four justices to vote in favor of hearing the case for oral arguments to be heard.
The D.C. Circuit Court of Appeals sided against the religious broadcasters in July, giving the Copyright Royalty Board discretion in setting rates.
The religious broadcasters are represented by Alliance Defending Freedom, a religious liberty legal group.
“This unlawful discrimination forces some noncommercial religious stations to stay small and restrict their listener reach so they can afford to stream online. The Copyright Royalty Board is violating federal law and the U.S. Constitution, and we, along with other religious freedom advocates, are urging the Supreme Court to side with religious liberty and free speech,” said John Bursch, ADF senior counsel and vice president of appellate advocacy.
A Justice Department official did not immediately respond to request for comment.
The case is National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board and Librarian of Congress.