KET debate proceeds without Libertarian candidate who challenged exclusion

When Kentucky Tonight host Bill Goodman introduced U.S. Senate candidates on the air the evening of Oct. 13, one was missing: Libertarian David Patterson, whose name will appear on the Nov. 6 ballot in Kentucky.

Just 48 hours before, a federal judge in Frankfort rejected Patterson’s argument that Kentucky Educational Television violated his First Amendment rights by denying his request to be included in the broadcast.

Patterson, along with the state and national Libertarian parties, contended that KET kept him off the program due to his political viewpoint. He sued for inclusion in the show, where incumbent Republican Mitch McConnell, Senate minority leader, and Democrat Alison Lundergan Grimes, Kentucky secretary of state, appeared.

KET Executive Director Shae Hopkins praised the judge’s ruling. “We believe that all journalists have the right to decide for themselves who to interview and what issues to cover,” she said in a statement.

Patterson cited 24 internal KET emails, obtained under state open-records laws, showing that station staffers changed candidate coverage requirements over several months. But U.S. District Court Judge Gregory F. Van Tatenhove disagreed that the station had done so to bar Patterson. He wrote in his decision that KET was “an institution trying to do the right thing.”

“KET, out of an abundance of caution, established objective criteria which they then used when deciding who to invite” to the Kentucky Tonight forum, Van Tatenhove wrote, noting the station “acted within the bounds of the First Amendment.”

The issue concerned First Amendment rights because KET is licensed to the state. A 1998 Supreme Court ruling, Arkansas Educational Television Commission v. Ralph P. Forbes, established that a debate was a nonpublic forum from which a public broadcaster could bar participants based on journalistic discretion, but not a candidate’s views.

The KET ruling “is not a surprise,” said Washington, D.C., public media attorney Larry Miller, “but it nicely applies the Supreme Court’s Forbes decision providing governmental licensees broad discretion to exclude non-serious candidates from debates based on a determination of newsworthiness so long as the candidates’ political views are not a factor.”

However, Patterson’s attorney is pondering an appeal. The Supreme Court ruling may bar viewpoint discrimination, but it doesn’t address what criteria stations may properly use to vet candidates, Christopher Wiest told Current.

“There are some facts we’d like the Court of Appeals to review,” Wiest said. “We’re looking hard at this, but we have not made the final call yet. But I don’t think this issue is going away.”

Rewriting the rules?

Ken Moellman, Kentucky chair of the Libertarian Party, expressed “disgust” with Van Tatenhove’s ruling. “It is extremely disappointing that the court has said state entities can rewrite the rules in the middle of the game,” Moellman said in a statement.

Emails showed that over several months earlier this year, KET staffers altered several candidate requirements, including minimum polling numbers, which jumped from 5 percent to 15 percent. The required amount of cash raised also grew, from at least $10,000 in contributions to $100,000.

In a statement, Patterson noted that the ruling means candidates “must be rich or have rich friends to even stand a chance. Kentuckians now have their hard-earned tax dollars being used to deprive them of knowing their options” when they walk into the voting booth.

But Patterson’s case specifically hinged on proving that his First Amendment rights were violated because KET kept him off Kentucky Tonight due to his point of view.

Patterson cited staff emails containing cutting remarks about Senate candidates. In an April 18 email to Kentucky Tonight Producer Deidre Clark, Goodman poked fun at write-in candidate Shawna Sterling’s website. “Saving baby cows? Angels and music led her to the U.S. Senate race?” he wrote. “[J]ust to be sure, we will have a policeman nearby Monday night?” he asked, referring to an interview with Sterling.

Patterson’s suit said that the emails demonstrated “a clear candidate and viewpoint bias and slant in KET programming.”

Van Tatenhove disagreed. “Patterson cites no direct evidence of viewpoint discrimination,” he wrote.

Miller pointed out that the case serves as “a good reminder that internal station emails can become public in litigation.”

And earlier in the legal battle, Patterson did win one skirmish over the timing of his lawsuit.

Patterson filed the complaint Sept. 28. In response, KET asked for dismissal, claiming that Patterson waited weeks to file suit despite knowing about the debate since at least Aug. 18. Due to that delay, KET stated, “all aspects of a complex constitutional lawsuit, from discovery to trial to appeal, now must be compressed” into less than 10 business days. The timing of Patterson’s suit “severely prejudices” KET, its complaint said.

But Van Tatenhove disagreed. Patterson, he wrote in a decision Oct. 6, “just did not act fast enough for the defendants’ liking.”

“Patterson could not have had knowledge of the fact that he would not be invited to the debate early enough to make this anything other than what it is — a last-minute request for injunctive relief,” Van Tatenhove wrote.

“When parties request injunctive relief,” he added, “things are commonly rushed and this case is no exception. While it might be an inconvenience to KET, this is not a reason to justify dismissal.”

But once the suit moved forward, KET prevailed.

“Interesting questions”

In his ruling, Van Tatenhove noted that Patterson believes “that it is enough that he is a thoughtful candidate, serious about his candidacy” to merit coverage by KET. “Without question,” he wrote, “voters may be better informed, or at least exposed to more viewpoints if he is included. But the First Amendment is not a rule of quantity at any cost.”

The Supreme Court understands, Van Tantenhove wrote, “that there are very good reasons, informed by the values of the First Amendment, to permit KET to limit the number of candidates at its debate. Voters may actually benefit from a forum or debate that includes those candidates that have a realistic chance of winning rather than many voices competing for very limited time. What KET cannot do is pick and choose candidates based on their viewpoints. KET has not done so here.”

So Patterson watched the program from home, he told Current, tweeting his answers to questions the host posed to the two candidates on the air and adding hashtags #kysen and #votebetter:

Role of govt: protect property and self from those who seek to harm you. Provide means of adjudication for disagreements. #kysen #votebetter

— Patterson For Senate (@DP4Senate) October 14, 2014

Minimum wage increase doesn't solve problem. Need better plan, not band-aids. Check my response in C-J voter guide. #KySen #VoteBetter

— Patterson For Senate (@DP4Senate) October 14, 2014

Enabling big business is not the solution. Need more small businesses. #kysen

— Patterson For Senate (@DP4Senate) October 14, 2014

Wiest also watched from home, mulling over his clients’ wishes. Patterson’s goal was to be on the air with McConnell and Grimes, discussing issues in the high-profile race; now that the Kentucky Tonight program has aired, Wiest said, he suspects Patterson will drop out of the case.

However, the state and national Libertarian parties “have an interest in making sure that what happened here never happens again,” Wiest said.

Miller said the FCC accepts that a broadcaster may use such criteria as polling numbers, number of signatures on petitions, minimum campaign contributions or “prior holding of significant office” to determine which candidates warrant coverage.

But Wiest sees a possible inroad for an appeal, buried in a footnote in Van Tantenhove’s ruling. The judge wrote: “Plaintiffs took issue with the $100,000 requirement and also with the 10% polling requirement. While these are interesting questions, the legitimacy of these criteria is not presently at issue.”

The judge then noted that Kentucky Rep. William Natcher, who served for more than four decades, refused to accept any campaign contributions. “Under KET’s present framework,” Van Tatenhove wrote, “Congressman Natcher would not have been invited to appear on the candidate edition of Kentucky Tonight.”