Libertarian Senate candidate sues Kentucky Educational Television over exclusion from campaign forum

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A Libertarian candidate for the U.S. Senate is suing Kentucky Educational Television, contending that the station is barring him from an upcoming candidate forum due to his political viewpoint.

In a complaint filed Sept. 28 in U.S. District Court in Frankfort, David Patterson, along with the state and national Libertarian parties, asked a judge to order KET to include him in its Oct. 13 forum. The suit requests a temporary restraining order to prohibit enforcement of KET’s requirements for participation.

The issue involves Patterson’s First Amendment rights because KET is licensed to the state.

David Patterson, Libertarian candidate for Kentucky's U.S. Senate seat. (Photo: ??)

David Patterson, Libertarian candidate for Kentucky’s U.S. Senate seat. (Photo: Kylibertarian via Wikimedia/Creative Commons)

Patterson contends that KET changed the criteria for its candidate forum “several times” specifically to keep him out of the event. The lawsuit includes copies of internal KET emails showing that early this year the station required participating candidates to have raised at least $10,000 in contributions and poll at a minimum of 5 percent support. Later emails show that the station changed those figures to $100,000 and 15 percent and tightened other criteria.

Incumbent U.S. Sen. Mitch McConnell, a Republican, and Democrat Alison Lundergan Grimes, the Kentucky Secretary of State challenging McConnell, have agreed to appear together on KET’s Kentucky Tonight. CNN has called the electoral contest “the biggest Senate race of 2014,” with high stakes: Democrats need to defeat a major GOP leader, and Republicans need just six seats to gain control of the Senate.

Patterson has a lot to gain by participating in that high-profile debate, and he’s claiming that barring him from doing so violates his First Amendment rights. His lawsuit is based in part on the 1998 Supreme Court case Arkansas Educational Television Commission v. Ralph P. Forbes. In that 6-3 decision, justices found that public broadcasters could keep certain participants out of debates based on requirements such as levels of public support, but not due to the candidate’s points of view.

Patterson’s suit accuses KET of “viewpoint discrimination” and of imposing “unreasonable restrictions” on his participation.

The American Civil Liberties Union of Kentucky is also backing Patterson’s inclusion. ACLU staff attorney William Sharp sent a letter to KET Executive Director Shae Hopkins Sept. 12 noting that requirements adopted in July “had the effect of excluding third party and write-in candidates who might otherwise had qualified under April 21 criteria.”

KET spokesperson Tim Bischoff told Current that the station does not comment on pending litigation. In a Sept. 13 statement to public radio station WFPL in Louisville, Bischoff denied that any criteria were developed or modified to exclude an individual candidate.

“Our process was deliberate, considered, and in consultation with our attorney, ensuring KET is following federal law and regulation, and in order to provide the best possible election coverage to our viewers,” he said.

‘Stations aren’t passive soapboxes’

Patterson, a police officer since 1996 who lives in Harrodsburg, Ky., about 50 miles southwest of Lexington, joined the race Aug. 11 by filing 9,100 petition signatures with the Kentucky Secretary of State’s office. In the commonwealth, independent and third-party Senate candidates must obtain 5,000 signatures to appear on the ballot; Republicans and Democrats need only two signatures.

In a letter to voters on his campaign website, Patterson wrote that he is not a politician, but has “reached a point where I can no longer remain silent. Our career politicians have failed us.” If elected, he pledges to “maximize individual liberty, by curbing government interference into your personal daily life.”

Patterson’s name will appear with McConnell and Grimes on the Nov. 6 ballot. Three other candidates also filed to run as write-ins: citizen activist Mike Maggard; Robert Edward Ransdell, who is linked to the National Alliance, which the Southern Poverty Law Center identifies as a neo-Nazi group; and Shawna Sterling, a doctoral candidate in philosophy at the University of Kentucky.

When several candidates are running, public television stations can use editorial judgment to decide which to cover, said John Crigler, telecommunications attorney with Garvey Schubert Barer in Washington, D.C.

AETC v. Forbes established that in sponsoring a debate, “stations aren’t passive soapboxes,” Crigler noted. “They are journalistic enterprises that have the right to make editorial decisions” on which candidates to include. Those decisions may be based on audience interest or issues relevant to the race. Viewers may not be interested in hearing what a fringe candidate with no traction in the election might have to say, Crigler said.

Christopher Wiest, Patterson’s attorney, said in a statement that public broadcasters “are entitled to impose objective criteria for debate participation, but what they cannot do and what KET internal email indicated they did, is impose such criteria to engage in viewpoint discrimination with the purpose to exclude particular candidates in contravention of the First Amendment.”

‘At least one eccentric candidate’

Patterson’s lawsuit contains internal KET emails that provide a detailed look at how staffers set out to finalize candidate requirements. The Kentucky Libertarian party obtained the electronic correspondence through the state’s open records law. Libertarian State Chair Ken Moellman made the request in August after hearing from the station that Patterson did not meet KET’s candidate requirements. “My gut told me something was wrong,” he told Current.

The Kentucky chapter of the American Civil Liberties Union is asking KET Executive Director Shea Hopkins to allow candidate Libertarian David Patterson to appear in a Senate candidates’ forum. (Photo: KET)

The party received 1,117 pages of KET emails. The lawsuit references 24 messages.

Many were from or to Mike Brower, the station’s senior director of production operations. On Jan. 27, Brower sent a draft of candidate requirements to Tim Bischoff, director of marketing and online content, and Craig Cornwell, senior director of programming, copying Kentucky Tonight Producer Deidre Clark and Bill Goodman, host of the interview show One to One.

They didn’t want language, Brower wrote, “that ends up inadvertently disqualifying a marginal candidate who is also someone we want to include. Our goal here is to have a way to defend not including only the most extreme cases, like out of state crusaders, or wacky people who have paid the $50 and got two names on a form to qualify as a candidate.”

In a Jan. 31 email asking Washington, D.C., attorney Todd Gray for advice on setting the rules, Brower wrote that in 2012, “we had two out of state candidates who were not running serious campaigns but were rather using the process to air antiabortion ads.” Brower added that while there are no such candidates this year, “we do have at least one eccentric candidate on the ballot who we would prefer not to invite.” Brower did not identify that candidate.

The email goes on to suggest requirements based on guidelines that Gray provided to KET in 2010, titled, “Candidate Invitation Criteria, 2014 Primary and General Election.” Those state that a participating candidate must be legally qualified and meet three of four criteria: stating public positions on at least three issues, accepting at least $10,000 in contributions, receiving “more than incidental” press coverage and polling at a minimum of 5 percent.

Later on Jan. 31, Gray responded in part that because KET is a state agency, “you need to protect yourself from potential First Amendment lawsuits by candidates who are not invited to participate. The important thing is to make decisions about who to invite or exclude on grounds that do not include the candidate’s message or views. For this reason, having criteria that do not reference or depend on the candidate’s views is helpful.”

Gray declined comment on the lawsuit to Current.

The lawsuit also includes a March 13 email from Warren Taylor, Patterson’s press secretary, to a long list of media outlets including KET. “I am contacting you to send our first two press releases and to also establish contact,” Taylor wrote. The Kentucky Libertarian Party nominated Patterson at its state convention on March 1 in Danville.

Meanwhile, emails show that KET staffers continued to tinker with candidate requirements. On May 22, two days after Kentucky’s primary election, Hopkins sought clarification in an email to Brower. The executive director wanted to know if the station’s general election criteria differed from the primary’s.

Yes, Brower replied, “this is just the criteria for the U.S. Senate general election.” That now included meeting not three but four requirements of making public statements on issues, maintaining an active campaign website, accepting at least $100,000 in contributions and showing at least 15 percent support in a public opinion survey or poll.

Those rules were adopted by KET in July.

Moellman told Current that Patterson could meet the original requirements but not the new ones.

Different rules for primary and general elections aren’t necessarily prohibited, said Crigler. “One rationale could be, the primary attracts all sorts of candidates, the stakes are much lower,” he said. “In the general, it’s just the big fish left, so it’s fair to establish higher standards.”

KET will need to explain why it changed the standards, Crigler said, and why the change doesn’t just affect Patterson but other candidates as well.

Moellman points to emails in which KET staffers apparently mocked marginal candidates. In one, Renee Shaw, host of the interview and discussion series Connections, emailed Kentucky Tonight Producer Deidre Clark June 10 about a write-in candidate with neo-Nazi ties. “What a nut — articulate, but a nut nonetheless,” Clark wrote.

Questions, comments, tips? sefton@current.org