Ralph P. Forbes, and The People, Appellant, v. The Arkansas Educational Television
Commission, and its Board of Directors in their Official Capacities; The Arkansas
Educational Telecommunications Network Foundation, and its Members and Officers
Susan J. Howarth, in her Official Capacity as Executive Director; Victor Fleming,
in his Official Capacity as Chairman; G. E. Campbell, in his Official Capacity
as Vice-Chairman; Dr. Caroline Whitson, in her Official Capacity as Secretary;
Diane Blair, in her Official Capacity as Commissioner; S. McAdams, in his
Official Capacity as Commissioner; James Ross, in his Official Capacity as
Commissioner; Jerry McIntosh, in his Official Capacity as Commissioner; Lillian
Springer, in her Official Capacity as Commissioner; Amy L. Oliver, in her
Official Capacity as Production Manager; Bill Clinton, his Official Capacity
as Governor of the State of Arkansas; John Does, Sued as certain “John Doe”
crooked, lying politicians and political “dirty tricks” operatives and special
interests, etc.; KHBS TV/Channel 40 UHF; KHOG TV/Channel 29 UHF; American
Broadcasting Company, Agent Darrel Cunningham; Steve Barnes, KARK TV, 4 Eye-Witness News and AETN Producer; Oscar Eugene Goss, Arkansas Educational Television
Network; Carol Adornetto; Larry Foley; Lavenia Craig, in her Official Capacity
as Commissioner; Robert Doubleday, in his Official Capacity as Commissioner,
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
93 F.3d 497; 1996 U.S. App. LEXIS 21152
April 11, 1996, Submitted
August 21, 1996, Filed
PRIOR HISTORY: [*1] On Appeal from the United States District Court for the
Western District of Arkansas. Civil 92-2190. Honorable H.F. Waters, District
DISPOSITION: Reversed and remanded.
COUNSEL: Counsel who presented argument on behalf of the appellant was J.
Fred Hart, Jr. of Little Rock, Arkansas. Also appearing on the brief was Charles
Suphan of Little Rock, Arkansas.
Counsel who presented argument on behalf of the appellee was Richard D. Marks
of Washington, D.C.. Also appearing on the brief was Thomas S. Gay from the
Attorney General’s Office in Little Rock, Arkansas.
JUDGES: Before RICHARD S. ARNOLD, Chief Judge,
McMILLIAN and JOHN R. GIBSON, Circuit Judges.
OPINION BY: RICHARD S. ARNOLD, Chief Judge.
This case is before us for the second time. On the prior appeal, this Court,
sitting en banc, held that the plaintiff, Ralph P. Forbes, had stated a claim.
Forbes v. Arkansas Educational Television Network, 22 F.3d 1423 (8th Cir.)
(en banc), cert. denied, 130 L. Ed. 2d 409, 115 S. Ct. 500 (1994) (petition
of AETN), 115 S. Ct. 1962, 131 L. Ed. 2d 853 (1995) (petition of Mr. Forbes).
The case arises out of a debate staged by the defendant Arkansas Educational
Television Commission, an agency of the State of Arkansas, between the Democratic
and Republican candidates for Congress in the Third District of Arkansas in
1992. Mr. Forbes, who was also a legally qualified candidate in that race,
asked to be included in the debate but was refused. He claimed, among other
things, that his exclusion violated the First Amendment, as made applicable
to the states through the Due Process Clause of the Fourteenth Amendment.
We held that the First Amendment applied fully [*2] to the Arkansas Educational
Television Network (AETN), and that the defendants were not free to exclude
Mr. Forbes without a reason good enough to pass muster under that Amendment.
The case had not progressed far enough for defendants to file an answer. Hence,
there was no way of knowing, on the state of the record as it then existed,
why AETN had excluded Mr. Forbes. The case was remanded for further proceedings.
On remand, the plaintiff’s First Amendment claim was tried to a jury. By
special verdicts, the jury found that the decision to exclude the plaintiff
from the debate was not the result of political pressure, and that it was
not based on opposition towards plaintiff’s political opinions. In addition,
the District Court instructed the jury that the congressional debate, as set
up by the defendant network, was a non-public forum. Judgment was entered
Mr. Forbes now appeals. He argues that the debate was a limited public forum,
and that the reason given for excluding him, that he was not a “viable” candidate,
even if it was the true reason, was not legally sufficient. We agree. We hold
that a governmentally owned and controlled television station may not exclude
[*3] a candidate, legally qualified under state law, from a debate organized
by it on such a subjective ground. To uphold such a defense would, in our
view, place too much faith in government.
We briefly restate enough of the facts and proceedings below to place the
present issue in context. In October 1992, the Arkansas Educational Television
Commission decided to conduct and broadcast a debate between the Republican
and Democratic candidates for Congress in the Third District of Arkansas.
The plaintiff, Ralph P. Forbes, then became a duly qualified independent candidate
under state law. He was certified as an independent candidate because he had
gathered enough signatures on petitions. Under state law, a candidate must
file petitions signed by at least three per cent. of the qualified electors
in the district in which he is seeking office, provided, however, that no
more than 2,000 signatures are required. Ark. Code Ann. @ 7-7-103(c)(1). Mr.
Forbes heard about the debate and asked to be included. AETN refused, and
the debate took place on October 22, 1992, without Mr. Forbes’s participation.
In the meantime, the plaintiff had filed suit in the District Court, seeking
a preliminary [*4] injunction, but this relief was denied. Thereafter, the
District Court granted AETN’s motion to dismiss the complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim.
The plaintiff appealed, and this Court, sitting en banc, affirmed in part
and reversed in part. We rejected Mr. Forbes’s claim under the Federal Communications
Act, holding that @ 315 of that Act, 47 U.S.C. @ 315, does not create a private
cause of action. As to the First Amendment claim, however, we held that Forbes’s
pleading was sufficient to survive a motion under Rule 12(b)(6). The defendants
argued that the case should be governed by public-forum analysis. In response
to this position, we held that governmentally owned television stations are
not traditional public fora, but that they might, under the particular circumstances
of any given case, create a limited public forum, “a place that generally
is not open for public expression, but that the government has opened for
use for free speech for only a limited period of time, a limited topic, or
a limited class of speakers.” Forbes, 22 F.3d at 1429 (citations omitted).
Since the key determination of whether a forum is a limited [*5] public one
is the government’s acquiescence in its use for expressive purposes, it is
certainly possible that AETN created a limited public forum when it chose
to sponsor a debate among the candidates for the Third Congressional seat.
This is a determination the factfinder would have to make after carefully
looking at the nature of the debate forum. If it were determined that AETN
had created a limited public forum, then Forbes would have a First Amendment
right to participate in the debate and could be excluded only if AETN had
a sufficient government interest.
Ibid. Observing that “AETN . . . has not yet articulated any principled reason
for excluding Forbes,” id. at 1430, we remanded for further proceedings.
On remand, as we have previously noted, the District Court tried the case
to a jury. In accordance with our en banc opinion, the Court correctly refused
to submit to the jury any claim under the Communications Act itself. Only
the First Amendment claim was submitted. But before the case went to the jury,
the District Court held, as a matter of law, that the debate in question was
a non-public forum. The District Court said: “. . . the Court has ruled that
the [*6] type of forum we are talking about in this case is a non-public forum.”
Thus, the question whether the debate was a non-public forum or a limited
public forum was not submitted to the factfinder. It was taken from the jury
and decided by the Court. The issue whether defendants’ proffered justification
— that Forbes was not a viable candidate — would be legally sufficient if
the debate were a limited public forum was not reached. Instead, the District
Court submitted to the jury only those discrete issues of fact that it deemed
relevant under its holding that the debate was a non-public forum.
On special verdicts, the jury found, first, that the decision to exclude
Mr. Forbes was not the result of any political pressure coming from outside
the professional staff of AETN. (Under the theory presented by defendants
at the trial, this would have been the only basis for a recovery by the plaintiff.)
The jury found, in addition, that the defendants did not exclude Mr. Forbes
from the debate because of disagreement with his opinions. In accordance with
these findings of fact and the Court’s holding on the public-forum issue,
judgment was then entered for defendants.
We first discuss [*7] three procedural arguments made by Mr. Forbes as part
of his attempt to upset the judgment of the District Court. The first argument
has to do with the special interrogatories put to the jury. The first of these
interrogatories read as follows:
Do you find from a preponderance of the evidence that the defendants’ decision
to exclude Mr. Forbes from the debate was influenced in any way by political
pressure from anyone inside or outside of the Arkansas Educational Television
Trial transcript (Tr.) 475. The jury answered no to this question. Id. at
502. Mr. Forbes’s argument is that this interrogatory was unnecessary to a
finding that AETN violated his First Amendment rights, and that submitting
it to the jury was confusing. We do not agree that use of the interrogatory
was reversible error.
Whether to submit a case on special interrogatories, and, if so, how to phrase
them, are matters committed, within broad limits, to the discretion of the
district courts. We have no reason to believe that this jury was confused.
We have great faith in juries, and their desire and ability to follow instructions
and make distinctions among the various issues put before [*8] them. It may
be true that submission of this special interrogatory, strictly speaking,
was unnecessary. The First Amendment can be violated even if no political
pressure is exerted. For example, officials of AETN, entirely apart from political
pressure, might have decided to exclude Mr. Forbes because of disagreement
with his political opinions. (As we have seen, the jury found that this did
not occur, but, at the time the case was submitted to the jury, this was still
a live issue.) It is very likely that the exertion of political pressure,
if it had occurred, would have been a good theory of First Amendment violation,
because such pressure, in all probability, would have proceeded out of someone’s
disagreement with or prejudice against Mr. Forbes’s political positions. The
jury’s negative answer to the interrogatory did not mean that the case was
over; it meant only that one possible theory of liability had been rejected.
The jury remained free to consider the other interrogatories submitted to
it, and we believe it did so conscientiously.
The jury then went on to answer the second interrogatory, asking whether
the decision to exclude Mr. Forbes was based on disagreement with his [*9]
political viewpoint. The answer to this question was no. We do not know what
our answer would have been if we had been sitting on the jury, but that is
not important. There was conflicting evidence on this issue, and it could
have gone either way. Making decisions of this kind is exactly what juries
are for. It was within the discretion of the District Court to submit the
issue to the jury in this form, and the evidence is sufficient to support
its negative answer.
Mr. Forbes also argues that it was prejudicial error to exclude evidence
which, he contends, would have shown that the husband of the producer of the
debate for AETN was prejudiced against him. We cannot agree that any error
was committed in this regard. If we assume that the husband did not like Mr.
Forbes’s opinions, and if we further assume, and this would be something of
a stretch on the present record, that his wife knew this, it by no means follows
that the wife was in agreement. Spouses’ political opinions sometimes agree.
They sometimes disagree. We do not think any general inference can be drawn
from the opinion of one spouse to that of the other. The District Court did
not abuse its discretion in rejecting this [*10] evidence. n1
It remains to discuss what has emerged as the main issue — whether the congressional
debate staged by AETN was a limited-purpose public forum, or a non-public
forum, and, if it was the former, whether AETN’s reason for excluding Mr.
Forbes can survive scrutiny under the First Amendment. (We agree with the
District Court that the jury’s finding that the exclusion was not viewpoint-based
is fatal to Mr. Forbes’s case if the debate was a non-public forum.) That
this is the major issue in the case became clear at oral argument. Counsel
[*11] for defendants, citing Bose Corp. v. Consumers Union, 466 U.S. 485,
80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984), argued that the issue of how to
characterize the forum was properly decided by the judge. Certain First Amendment
issues, he asserted, are for the Court, not the jury, and are then subject
to de novo review on appeal.
We are not sure that Bose holds that all First Amendment issues of fact are
to be decided by the court instead of the jury in cases otherwise triable
to a jury under the Seventh Amendment. This is an action at law for damages,
a timely demand for jury trial was made, and a jury was properly empaneled.
Certain issues of historical fact — for example, whether Forbes was excluded
from the debate because of hostility to his opinions — are certainly for
the jury, assuming that the evidence was in sufficient conflict to allow reasonable
jurors to go either way. Thus, the issues covered by the special interrogatories
put to the jury in this case were correctly treated as jury issues, and we
do not understand defendants to argue otherwise.
By contrast, the question of what exactly the forum was in this case, whether
it was a non-public forum or a limited public forum, is a different sort [*12]
of issue. It is a mixed question of law and fact, as to which the answer is
obtained by applying legal principles to facts. We do not understand the historical
facts — for example, who set up the debate, who was invited to attend, who
was excluded, and the like — to be in dispute. If defendants, by citing Bose,
are asserting that such issues are never to be submitted to juries, we are
not convinced. Bose has to do with the reviewing or appellate function in
First Amendment cases. It does not, at least not in so many words, address
the division of functions between judge and jury at the trial level.
In the present case, this distinction, between the division of functions
at the trial level and the standard of review at the appellate level, seems
to us of no practical significance. Suppose the district court had allowed
the issue of how to characterize the forum to go to the jury, and suppose
the jury had decided it one way or the other. The party losing this issue
would surely have filed a motion for judgment notwithstanding the verdict,
now called a motion for judgment as a matter of law, and the district court
would have ruled on the motion. In doing so, the district court [*13] would
have gone through the same mental process engaged in by appellate courts.
It would have been exercising essentially a reviewing function. And this Court,
in turn, would have been bound to apply the Bose approach on appeal.
The Supreme Court’s opinion in Bose holds that appellate courts must “conduct
an independent review of the evidence on . . . dispositive constitutional
issues” in First Amendment cases. 466 U.S. at 508. Bose was a bench-tried
case, but the opinion clearly indicates that the same appellate standard applies
in cases tried to juries:
. . . The rule of independent review assigns to judges a constitutional responsibility
that cannot be delegated to the trier of fact, whether the factfinding function
be performed in the particular case by a jury or by a trial judge.
Id. at 501. In short, “First Amendment questions of ‘constitutional fact’
compel this Court’s de novo review.” Id. at 508-09 n.27. Our recent opinion
in Families Achieving Independence and Respect v. Nebraska Department of Social
Services, F.3d,, 1996 U.S. App. LEXIS 18744, 1996 WL 426147 *3 (8th Cir.,
July 31, 1996), reaches the same conclusion: “Where . . . constitutional issues
[*14] [in First Amendment cases] present mixed questions of law and fact,
our review is de novo.”
We have a complete record before us on the public-forum question, and we
have the holding of the District Court on that issue. We now proceed to exercise
our constitutional duty to conduct an independent review.
As an initial matter, we must determine whether the forum at issue is the
television station, AETN, or the Third District congressional debate. At oral
argument and throughout its brief, AETN contends that the station is the relevant
forum. Forbes, on the other hand, contends that our analysis should focus
on the debate.
The choice between the two forums suggested is not a difficult one. “In defining
the forum we  focus on the access sought by the speaker.” Cornelius v.
NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 801, 87 L. Ed. 2d 567, 105 S.
Ct. 3439 (1985). If the speaker seeks general access to public property, the
forum encompasses that property. But if only limited access is sought, we
must take a “more tailored approach to ascertain the perimeters of a forum
within the confines of the government property.” Ibid.
Forbes sought access to the debate alone. The debate is a particular program
[*15] among the numerous programs broadcast by AETN each day. Traditionally,
when a speaker “seeks access to a particular means of communication,” it is
that particularized forum which becomes the focus of analysis. Ibid. In keeping
with that tradition, we conclude that the debate – the means of communication
to which Forbes seeks access – is the relevant forum in this case.
Having identified the forum, we now turn to the more difficult question of
determining its character. Forbes maintains that by staging the debate, AETN
created a limited public forum. This type of forum has been defined as a forum
“created by government designation of a place or channel of communication
for use by the public at large for assembly and speech, for use by certain
speakers, or for the discussion of certain subjects.” Id. at 802. The Supreme
Court has recognized the existence of a limited public forum in a number of
instances where the State “does not itself speak or subsidize transmittal
of a message it favors but instead . . . encourages a diversity of views from
private speakers.” Rosenberger v. Rector & Visitors of Univ. of Va., 132 L.
Ed. 2d 700, 115 S. Ct. 2510, 2519 (1995). Examples of limited public forums
[*16] include university meeting facilities opened for use by registered student
groups, Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269
(1981), and municipal theaters open to theater productions, Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975). See
also Lehman v. City of Shaker Heights, 418 U.S. 298, 41 L. Ed. 2d 770, 94
S. Ct. 2714 (1974) (advertising space on public bus held to be a limited public
forum for commercial advertising); Healy v. James, 408 U.S. 169, 33 L. Ed.
2d 266, 92 S. Ct. 2338 (1972) (public college’s recognition of student political
groups created a limited public forum).
A non-public forum, by contrast, is “public property which is not by tradition
or designation a forum for public communication . . ..” Perry Educ. Assn.
v. Perry Local Educators’ Assn., 460 U.S. 37, 46, 74 L. Ed. 2d 794, 103 S.
Ct. 948 (1983). A non-public forum is not necessarily transformed into a public
or limited public forum even though the State engages in a practice of “selective
access,” by “allowing some organizations . . . to use the facilities.” Id.
at 47. Capitol Square Review and Advisory Bd. v. Pinette, 132 L. Ed. 2d 650,
115 S. Ct. 2440, 2446 (1995) (forum is nonpublic when “reserved for specific
official uses”). In Perry, the Supreme Court held that a public school’s internal
[*17] mail system was a non-public forum even though officials had allowed
some community organizations to use the system. Perry, 460 U.S. at 47 (finding
no evidence that “permission had been granted as a matter of course to all,”
the Court concluded that “selective access does not transform government property
into a public forum.”). Similarly, in Cornelius, the Supreme Court held that
the Combined Federal Campaign (CFC), an annual charitable-fundraising drive
administered by the Office of Personnel Management, was a non-public forum.
As it did in Perry, the Court reasoned that “selective access [to charities],
unsupported by evidence of a purposeful designation for public use, [did]
not create a public forum.” Cornelius, 473 U.S. at 805.
There is no bright line or objective test for determining the character of
the forum. We can say without reservation, however, that the forum in this
case, the debate, is a limited public forum. Just as the university in Widmar
created a limited public forum by opening its facilities to registered student
groups for expressive speech, AETN, by staging the debate, opened its facilities
to a particular group — candidates running [*18] for the Third District Congressional
seat. The debate may be readily distinguished from the forums at issue in
Cornelius and Perry. In Cornelius, it was clear that the CFC was not created
“for purposes of providing a forum for expressive activity.” Ibid. The expression
made by giving money to charity was merely incidental to the purpose for which
the forum was opened — “to minimize the disruption to the workplace that
had resulted from unlimited ad hoc solicitation activities by lessening the
amount of expressive activity occurring on federal property.” Ibid. Likewise,
the forum in Perry, the school’s internal mail system, was designed solely
for expression relating to school business. Access to the system was granted
to groups on an individual basis and was not “granted as a matter of course”
to any particular group. The debate staged by AETN, on the other hand, was
staged in order for the candidates to express their views on campaign issues.
The debate was surely a place opened by the government for a limited class
of speakers. What was that class? Was it all candidates for Congress legally
qualified to appear on the ballot, or was it simply the Republican [*19] and
Democratic candidates? The latter answer, which essentially is the position
espoused by defendants, is not supportable either as a matter of law or logic.
Surely government cannot, simply by its own ipse dixit, define a class of
speakers so as to exclude a person who would naturally be expected to be a
member of the class on no basis other than party affiliation. It must be emphasized
that we are dealing here with political speech by legally qualified candidates,
a subject matter at the very core of the First Amendment, and that exclusion
of one such speaker has the effect of a prior restraint – it keeps his views
from the public on the occasion in question.
The real issue, we think, is the legal sufficiency of the reason given for
the exclusion. If AETN had considered Mr. Forbes a viable candidate, it would,
by its own account, have included him in the debate. There is nothing about
being a Democrat or a Republican, a priori, that is relevant here. Rather,
AETN’s point is that Mr. Forbes, in the opinion of the network, had no chance
to win. It therefore decided that its viewers should not hear Mr. Forbes’s
opinions as part of the debate involving the other candidates [*20] qualified
to appear on the ballot.
We do not think that AETN’s opinion on such a debatable matter as the political
viability of a candidate for Congress more than two months in advance of the
election can be a sufficient basis for narrowing the channels of public discourse.
AETN itself characterizes the criteria it used as follows: “While these criteria
can to some extent be considered as objective, ultimately their use is essentially
subjective.” Brief for Appellees 30. In a sense, the State of Arkansas had
already, by statute, defined political viability. Mr. Forbes had gathered
enough signatures to appear on the ballot. So far as the law was concerned,
he had equal status with the Republican nominee and the Democratic nominee.
Whether he was viable was, ultimately, a judgment to be made by the people
of the Third Congressional District, not by officials of the government in
charge of channels of communication.
We have no doubt that the decision as to political viability is exactly the
kind of journalistic judgment routinely made by newspeople. We also believe
that the judgment in this case was made in good faith. But a crucial fact
here is that the people making this judgment [*21] were not ordinary journalists:
they were employees of government. The First Amendment exists to protect individuals,
not government. The question of political viability is, indeed, so subjective,
so arguable, so susceptible of variation in individual opinion, as to provide
no secure basis for the exercise of governmental power consistent with the
First Amendment. Compare Families Achieving Independence and Respect v. Nebraska
Department of Social Services, supra, F.3d at, 1996 U.S. App. LEXIS 18744,
1996 WL 426147 *3-4 (vague standard cannot justify exclusion even from a non-public
forum). If Mr. Forbes can be excluded today, a Republican or a Democrat who
is believed to have no chance of success could be excluded tomorrow. It is
worth noting that Mr. Forbes himself received the most votes in the preferential
primary for the Republican nomination for Lieutenant Governor in 1990. (He
was defeated in a run-off primary.) To give just one more example, in 1958,
in the Second Congressional District, a write-in candidate who equipped his
supporters with stickers that could readily be applied to the ballot defeated
the incumbent Democratic Member of Congress, despite the fact that he began
his campaign very [*22] shortly before the election. Political viability is
a tricky concept. We should leave it to the voters at the polls, and to the
professional judgment of nongovernmental journalists. A journalist employed
by the government is still a government employee.
In short, we hold that the reason given for excluding Mr. Forbes (and we
accept at face value defendants’ proffered reason) was not legally sufficient
under the First Amendment. It was neither compelling nor narrowly tailored.
Mr. Forbes is entitled to a judgment in his favor so declaring. The only issue
remaining to be decided is that of damages, whether nominal or compensatory.
The judgment of the District Court is reversed, and the cause remanded for
further proceedings consistent with this opinion. The District Court is instructed
to enter judgment for the plaintiff Forbes and against the defendant Arkansas
Educational Television Commission, and, thereafter, to empanel a jury for
the sole purpose of determining the amount of actual damages sustained.
It is so ordered.
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n1 Mr. Forbes also argues that the District Court erred
in refusing to submit the issue of punitive damages to the jury. We believe
the District Court acted correctly in this regard. There was no substantial
evidence of malice or other outrageous conduct on the part of these defendants.
Therefore, there would have been no basis for an award of punitive damages,
and such an award, if returned by the jury, would have to be set aside for
lack of sufficient evidence.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – –
– – –
Document was computer generated by Communications Media Center, New York
Law School, 1996.