Can government employees be journalists?

In organizing candidate debates, it's an issue for state-operated networks, at least in the 8th Circuit courts

By Steve Behrens

Nebraska ETV canceled a senatorial debate broadcast in August [1996], and Iowa PTV was taken to court last month as the ripple effects of a federal circuit court decision involving Arkansas ETV spread throughout the Midwest’s Eighth Circuit.

As it did in 1994, the circuit court had ruled on Aug. 21, [1996] that the Arkansas network had no right to exclude independent congressional candidate Ralph P. Forbes from a Republican-Democrat debate that it was sponsoring and broadcasting in 1992.

Richard D. Marks, attorney for the Arkansas, Iowa and Nebraska networks, called the decision “a grave threat to public broadcasting.”

In the parallel case in Iowa, pubcasters were elated with two rulings last week: first, a U.S. District Court said Oct. 9 that the Forbes precedent does not apply to Iowa PTV. Then, two days later, the Eighth Circuit declined to grant an injunction sought by minor-party candidates, who wanted to stop planned Iowa PTV programs that feature only the major-party nominees. But these rulings don’t guarantee the higher court will abandon its earlier stance.

Though the August decision directly applies only to state-operated broadcasters that sponsor and broadcast candidate debates, Marks contends that it “calls into question … the legitimacy under the First Amendment of all the state-entity public broadcasting stations in the United States.” And, beyond broadcasting, the precedent also might be applied to any Internet service operated by a state university or state government. “It’s opening up a whole new area of potential conflict.”

The Eighth Circuit and other appeals courts came to opposite rulings in similar, earlier cases, but the circuit has twice ruled that Arkansas ETV violated Forbes’ First Amendment rights by excluding him from the October 1992 debate between the Republican and Democratic contenders for a House seat.

Back in 1992, Forbes failed to get a District Court to stop the debate, and took his case to the Eighth Circuit, which in April 1994 ordered the lower court to try the case with a jury. Though the lower court again rebuffed Forbes in June 1995 — the jury found that Arkansas ETV was motivated by neither political pressure nor disagreement with Forbes’ politics — the candidate went back to the Eighth Circuit, finally winning the August decision.

Excluding Forbes because he was not a “viable” candidate, as Arkanas ETV said it did, was not a legally sufficient reason, the appeals judges ruled. “We hold that a governmentally owned and controlled television station may not exclude 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.”

“Political viability is a tricky concept,” the opinion explained later. “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.”

By opening its airwaves for the candidate debate, Arkansas ETV was creating what lawyers call “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.” The court rejected pleas that Arkansas ETV be regarded as a “nonpublic forum” — which would give the network nearly as much decision-making latitude as privately owned media have.

Arkansas ETV sought a stay of the August decision but both the circuit court and Supreme Court Justice Clarence Thomas turned it down late in September. The state network, however, did get an unusual one-paragraph clarification from the circuit court:

“A couple of observations may be helpful,” the court said. “First, defendants are free, to the extent provided by law, to cover bona fide news events, including candidate debates organized by people or groups other than the defendants. Second, no question with respect to write-in candidates was presented or decided in this case.”

The clarification “actually was very clarifying,” says Susan Howarth, executive director of Arkansas ETV. It removed the question whether the network should carry or drop the presidential debates. But the ruling was received too late to help decide whether to include a write-in candidate in a Sept. 29 congressional debate. To be safe, the network had included a write-in candidate in a debate that day.

Howarth was especially uneasy about carrying the PBS feed of the first Dole-Clinton debate, since none other than Ralph Forbes is the America First Party candidate for the White House.

Repercussions to the north

By that time, the Aug. 21 ruling had already caused cancellation of an Aug. 25 debate between Nebraska’s two major U.S. Senate candidates. Nebraska ETV was cosponsoring the event with commercial WOWT, Omaha, and the League of Women Voters, but when it withdrew its participation, including its mobile unit, the debate had to be canceled, says Gene Bunge, network program manager.

The state network did later air another Senate debate with only the two major candidates, he adds. But the sponsor of the debate was the Associated Press, not Nebraska ETV, so the Forbes ruling didn’t apply.

That may seem to minimize the importance of the ruling, Bunge says, “but, by extension, if as ‘government journalists’ we are not qualified to make journalistic judgments about political debates, are we qualified to do other programming of a serious public-policy nature?”

Bunge can imagine a viewer telling him: “I’m not sure you should be carrying that particular Frontline, you government journalists.”

The Arkansas ruling also may have inspired a Sept. 13 lawsuit in Iowa by seven congressional candidates — six from the Natural Law Party and one from the Working Class Party. But in that case a U.S. District Court judge came to a contrary conclusion, entered Oct. 9. Judge Charles R. Wolle said Iowa PTV could choose to exclude minor-party candidates because the producers’ decisions were not arbitrary and followed “narrowly tailored” and “predetermined” policies.

Wolle found the Arkansas precedent didn’t apply because the Iowa network gave a different reason for excluding the plaintiffs: that the candidates weren’t newsworthy, not that they weren’t viable. The producers “properly” took into consideration the candidates’ “feeble” campaigning and fundraising efforts.

The decision by Iowa PTV program chief Daniel Miller serves a “compelling state interest,” the judge wrote: “If the defendant network may not exercise editorial discretion in determining the content of its programs, the network would be fundamentally bland and of little value to the public it serves. … Iowa statutes … created the defendant network to be and operate as an institution of the press to serve the people of Iowa, free from political pressure from within or without the state government.”

LATER STORY

Later news: Supreme Court upholds authority of Arkansas ETV in debate case, May 1998.

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