The broadcast decision that embroiled Arkansas ETV in a landmark First Amendment struggle ever since 1992 was “a reasonable, viewpoint-neutral exercise of journalistic discretion,” the Supreme Court ruled May 18 .The high court’s 6-3 ruling overturned an Eighth Circuit Court of Appeals decision in 1996 that the state network had infringed House candidate Ralph P. Forbes’ free-speech rights by refusing to add him to the two major-party nominees in a broadcast debate more than five years ago.
“This is a great decision for viewers,” and will let the network continue airing candidate debates, said Susan Howarth, executive director of the five-transmitter state network, according to the Arkansas Democrat-Gazette.
“The majority opinion gives us as much or more than we thought we would win in our most optimistic moments,” said the elated Richard D. Marks, attorney for Arkansas ETV.
Marks had pictured the Circuit Court’s 1996 decision as “a grave threat” to state-owned pubcasters that could undercut their ability to make editorial judgments. But the ruling included “a one-sentence affirmation … that politically insulated, state-owned public broadcasters are actually not acting “under color of state law.”
The majority opinion, by Justice Anthony Kennedy, remarked almost in passing: “Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine, candidate debates present the narrow exception to the rule.”
In this exception, Arkansas ETV survived the scrutiny. Marks said the outcome is “an affirmation of Susan Howarth’s integrity as a journalist, and a testament to her fortitude in fighting the battle for all of public television.”
With a Supreme Court decision on the record in the Arkansas case, it would be very difficult for another minor-party candidate to win a similar 1996 dispute with the Iowa PTV network, Marks said. Seven minor-party candidates sued the Iowa network in 1996 when they were excluded from appearances on Iowa Press. They already have lost in both trial and appeal courts; their case is pending before the Eighth Circuit in St. Louis.
Kelly Shackelford, attorney for Forbes, told reporters that the decision lets a state agency “make someone a fringe candidate.” He had argued that getting on the ballot ought to be enough to qualify a candidate to be included in such televised debates. Forbes’ appeal was backed by the Rutherford Institute, which also aided Paula Jones’ unsuccessful sexual-harassment litigation against President Clinton.
This is not the last that the Arkansas network will see of Ralph Forbes. He’s a third-party candidate in a House race this fall, the Democrat-Gazette reported. Howarth said it’s too early to say whether he’ll be invited to debate.
Not by whim
“It’s a wonderful victory,” said Lonna Thompson, director of legal affairs at America’s Public Television Stations (APTS). But she noted that stations still must establish “reasonable” and “viewpoint-neutral” criteria before holding debates, and then must apply those criteria consistently.
The court said that candidate debates are “different from other programming,” very important to the political process, and subject to special constitutional scrutiny. Pubcasters must remain neutral and “cannot grant or deny access to a candidate debate on the basis of whether it agrees with a candidate’s views.”
Forbes was a former American Nazi Party member and Ku Klux Klan activist, according to the Arkansas Democrat-Gazette.
“His own objective lack of support, not his platform, was the criterion,” the court said, noting that a District Court jury had found the network wasn’t motivated by political pressure or disagreement with Forbes’ views.
Arkansas ETV survived the scrutiny because it had decided well before the debates, in cooperation with the state’s Associated Press bureau chief, to open the debate only to major party candidates plus those with strong public support. Howarth testified in trial court that neither the voters nor the press considered Forbes a serious candidate, that he “apparently had little if any financial support,” and didn’t report his campaign finances to state or federal bodies, and he had no campaign headquarters other than his house.
When he was turned away, Forbes tried and failed to get an injunction from a federal District Court before the broadcast. But he twice won appeals in the Eighth Circuit.
Distinctions among forums
The Forbes case turned on the court’s view of what kind of “forum” the Arkansas network is.
The court concluded in that sentence prized by Marks that “public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine.” But in the special case of candidate debates, it was clearly a forum. What kind of forum? Courts had defined three major categories, each with different restrictions on government interference:
Traditional public forum: Speakers have “almost unfettered access” in places “devoted to assembly and debate,” and the government must show a “compelling state interest” if it excludes them.
Designated public forum: The government opens a forum in a nontraditional place to a certain class of speakers, and is subject to strict scrutiny if it excludes any speakers in that class.
Nonpublic forum: The government creates a forum open by permission to individuals within a certain class of speakers. It can exclude them only if its rules are “reasonable” and not motivated by officials’ opposition to their views.
The Arkansas debates were this third type of “nonpublic” forum, the high court ruled, because it was selective from the start. How the law regards an event depends in part on how its sponsors designed it. Arkansas ETV didn’t throw open its doors to all candidates.
Giving outside speakers “broad rights of access … would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations,” the court said.
In balancing the candidates’ First Amendment rights against the viewers’ First Amendment rights to hear candidates, the court grappled with the real-world workings of media. If public broadcasters were faced with an “all-or-nothing choice,” and numerous candidates for every office, they might not hold debates at all, and that “would result in less speech, not more.”
Indeed, Kennedy noted that the Circuit Court decision had caused Nebraska ETV to cancel a broadcast debate among Senate candidates in 1996.
The court also wanted to stay out of broadcast decisions. Kennedy cited an earlier opinion warning that if courts made TV a public forum, they would be drawn into overseeing broadcasters’ day-to-day decisions. They’d end up establishing “a system of self-appointed editorial commentators.”
Too much discretion
In a dissent also signed by David Souter and Ruth Bader Ginsburg, Justice John Paul Stevens agreed with the majority of the bench that the state “must ration or allocate” speaking facilities when demand exceeds supply.
But Stevens said the Arkansas network’s decision was “standardless,” and gave its staff “nearly limitless discretion to exclude Forbes from the debate based on ad hoc justifications.”
“The First Amendment demands more … when a state government effectively wields the power to eliminate a political candidate from all consideration by the voters,” the dissenters said. The majority opinion “understates the constitutional importance of the distinction between state ownership and private ownership” of stations,” Stevens wrote.