High court hears Arkansas ETV debate case
Outcome may affect free-press rights of state pubcasters — as well as free-speech rights of minor candidates
Excluding a minor congressional candidate, Ralph P. Forbes, from a 1992 broadcast debate was just an exercise in standard journalistic judgment, Arkansas ETV has told the Supreme Court, asking it to overturn a 1996 circuit court ruling.
Forbes "was judged to be of little or no interest to the viewing audience," the network said in a brief.
But that judgment amounts to unconstitutional interference by a government agency in a candidate's free-speech rights, the candidate's lawyer has replied.
Making that decision because his candidacy looked weak is the same thing as discriminating against a person who has unpopular views, the lawyer has argued.
These were the positions of the major contestants in Arkansas Educational Television Commission v. Ralph P. Forbes on Oct. 8 as the high court opened its hearing on the state network's appeal.
The New York Times called it "one of the most closely watched cases of the new term," with implications for state colleges and other governmental units. The court's decision probably will be out by the end of June.
At stake were two kinds of First Amendment rights--Forbes' free-speech rights versus Arkansas ETV's free-press rights.
Looking on at the hearing were officials from Iowa PTV, who are facing a similar challenge from Jay Marcus, a Natural Law Party candidate who was not included in a congressional debate. Marcus was also there, with press releases headlined "PBS on Trial."
During the hour-long hearing, the justices energetically peppered the opposing attorneys with skeptical questions. They threw hypothetical questions at the Arkansas network's lawyer, Richard D. Marks.
"There are some things that a private broadcaster can do that you can't," Justice Antonin Scalia observed to Marks, "and maybe this is one of them." Could a state network also endorse a candidate for office? the justice asked.
"That is very much not this case," Marks replied.
"Oh, I thought it was," Scalia said with a laugh.
Marks acknowledged, "There are limits on what a state-owned broadcaster can do."
Justice Ruth Bader Ginsburg wondered later whether a state agency could exclude a candidate from a town-hall debate rather than a televised one.
The justices also wheedled Forbes' lawyer, Kelly Shackelford, to see if he'd admit there are any criteria by which the state network could select some candidates for a debate and reject others. He stood firm: the best standard, he said, is the laws already on the books that determine who qualifies to be on the ballot.
But ballot-access rules vary widely from state to state, Ginsburg noted.
Yes, but those laws are "respectful of the people's wishes," Shackelford said.
The state network has argued repeatedly that the circuit court decision against it could threaten the decision-making ability of state colleges and other agencies as well as public broadcasters' decisions on other kinds of programs. And Forbes' attorneys have said the case is a narrow one about debates.
The two sides were not alone in the dispute. The American Civil Liberties Union, former presidential candidate Eugene McCarthy and Ross Perot's 1996 campaign had sided with Forbes in friend-of-the-court briefs, along with the Greens Party, the Natural Law Party and the Brennan Center for Justice at New York University Law School.
Backing the state network were briefs from 20 state governments, New York City, the Commission on Presidential Debates, and APTS, CPB, PBS and the Organization of State Broadcasting Executives (OSBE). Deputy Solicitor General Lawrence Wallace appeared in court for the FCC, supporting the Arkansas network.
The Arkansas network is a state agency, Marks wrote in a brief, but it is also a journalistic institution that, like a public defender in court, "is in an inherently adversary posture to government."
Marks argued it was doing its job by carefully inviting to the debate "only those candidates in whom the public was interested." The network had found simply that Forbes was receiving no public support in his campaign.
The "bottom line" on Forbes, network Executive Director Susan Howarth told reporters after the hearing, was that voters showed little interest in his campaign, he had no campaign headquarters outside his home and virtually no volunteers, and other media did not plan to cover him.
But wouldn't that kind of assessment always condemn minor candidates to defeat? a reporter asked. No, Howarth told reporters, because some candidates like Perot do meet objective criteria for inclusion in debates, and all can request airtime for campaign messages.
Some justices had been skeptical of that argument, however. Justice John Paul Stevens suggested during the hearing that rejecting Forbes as a debater amounts to a "disendorsement" of him, like announcing that it's a "waste of time" to vote for such a minor candidate.
Forbes and his attorney added stronger political coloring to their remarks during a press conference after the hearing. The lawyer opposed manipulation of elections by "an unelected government official sitting in some backroom somewhere."
Forbes added: "We've got a police-state, run in the state of Arkansas by the Clinton machine."
Briar patch of earlier rulings
The high court is wading into a briar patch of conflicting rulings. AETN's decision to exclude candidate Ralph P. Forbes from the debate more than four years ago has twice passed muster of a district court and twice been found unconstitutional by the Eighth Circuit appeals court, most recently in August 1996.
A parallel challenge against Iowa PTV, meanwhile, was defeated in district court in October 1996 and is pending in the Eighth Circuit. And other appeals courts have come to opposite conclusions in similar earlier cases.
"AETN believes this case presents a fundamental challenge to the freedom of the press of every state public broadcasting network and every public television and radio station licensed to a state university, community college or school board," said Howarth in March 1997, when the Supreme Court announced that it would hear the case.
"This issue has hung over public broadcasting like a cloud since the first public television station went on the air," said Marks in March. "If a whole class of public broadcasting licensees is disabled from making editorial decisions, that's going to affect the character of PBS and NPR today."
AETN's intent "will be a principal area of contention," Marks predicted in March. Past Supreme Court decisions focus on the state's intent in setting up various kinds of public forums comparable to the debates. Marks contends that AETN clearly sought to serve its audience by inviting only newsworthy candidates.
Shackelford argued for Forbes that AETN was a government agency interfering in the political process. "The government should not be in the business of picking our candidates for us," he said in a press release.
"We do not think [Arkansas ETV'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," said Shackelford, a regional coordinator for the Rutherford Institute, a constitutional liberties law firm, which is taking on Forbes' case.
The Rutherford Institute, founded by author and attorney John W. Whitehead and based in Charlottesville, Va., takes on a wide variety of cases to protect religious freedom, parental rights, the rights of anti-abortion protesters and other civil liberties cases. It also backs a proposal to display the Ten Commandments in federal offices and courthouses, according to releases.
Web page revised May 1998
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