Content Regulation / Censorship, Political Expression, Religious Freedom
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The United States Supreme Court ruled that state-owned public television broadcasters may exclude political candidates from televised debates sponsored by the broadcaster based on journalistic discretion, without violating the First Amendment. Ralph Forbes was excluded from a debate for political candidates planned by the Arkansas Educational Television Commission (AETC), a state-owned broadcaster, in advance of the November 1992 elections due to his lack of “political viability.” Forbes sued, claiming that his First Amendment rights were violated when AETC did not include him. The Court overturned the decision by the Eighth Circuit Court of Appeals, ruling that political debates constitute nonpublic fora, and that consequently, the decision to exclude Forbes was permissible because it was not based on an opposition to his views.
The Arkansas Educational Television Commission (AETC) planned televised debates for the candidates running for seats in Arkansas’ congressional delegation in November 1992. In June, it invited the Republican and Democratic candidates for these seats to participate. Ralph Forbes, an independent and “perennial” unsuccessful candidate for public office, qualified to run for the seat two months later and wrote to AETC requesting inclusion in the debate for his district, which was planned for October. The AETC Executive Director refused, arguing that the “journalistic judgment” of the Commission was that its viewers would be “best served by limiting the debate” to the candidates initially invited.
Forbes filed suit in October 1992 seeking injunctive and declaratory relief, as well as damages, under the First Amendment and 47 U.S.C. § 315. This statute requires licensees of broadcasting stations who allow a candidate to use the station, to “afford equal opportunities” to all legally qualified candidates for public office.
Both the District Court and the Eighth Circuit denied injunctive relief, yet the Court of Appeals reversed the rejection of Forbes’ claim under the First Amendment and remanded the issue. The District Court then found in favor of AETC, ruling that the debates were a nonpublic forum and that Forbes wasn’t excluded due to political pressure or disagreement with his views. The Court of Appeals later disagreed, finding that because AETC “opened its facilities to a particular group,” it qualified as a public forum and therefore anyone who legally qualified as a candidate for the Third Congressional District had a right to participate.
Justice Anthony Kennedy authored the opinion of the Court. At issue was whether a state-owned broadcaster had a constitutional obligation to provide every political candidate a platform in a televised debate. First, the Court examined the status of a televised debate as a forum of speech. Second, the Court investigated the nature of Forbes’ exclusion from the debate.
Does the public forum doctrine apply to broadcasting?
The Court began by answering if the public forum principles applied to the case. It recalled that the public forum doctrine arose in the context of using parks and streets to express opinions. Accordingly, it should not be “extended in a mechanical way to the very different context of public television broadcasting.” Although a traditional public forum required viewpoint neutrality, achieving it on television by requiring all interested speakers be given airtime “would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.” Accordingly, the US Congress rejected the argument that television broadcasters should be nonselective and be open to anyone.
Furthermore, the Court reasoned that a traditional interpretation of viewpoint neutrality would make broadcasters too vulnerable to legal claims of viewpoint discrimination since any editorial choice between one speaker or another could be interpreted as discriminatory. “That editors—newspaper or broadcast—can and do abuse this power is beyond doubt but “[c]alculated risks of abuse are taken in order to preserve higher values.” Accordingly, the Court found that imposing judicial restrictions on the freedom of broadcasters to select speakers would undermine journalistic discretion. The Court added that the First Amendment did not preclude Congress from imposing neutrality rules on public broadcasters, but on its own the Amendment did not “not compel public broadcasters to allow third parties access to their programming.”
However, candidate debates presented a narrow exception to the general rule of the forum doctrine’s non-applicability to public broadcasters. Unlike other programs, debates are a public forum designed by the candidates and views expressed during such debates were of the candidates, not of the broadcaster. The debates were designed to allow candidates to speak without editorial control of the broadcaster and differed from political programming where hosts guided or restricted certain speech. Moreover, “candidate debates are of exceptional significance in the electoral process. ‘[I]t is of particular importance that candidates have the . . . opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day.” CBS, Inc. v. FCC, 453 U. S. 367, 396 (1981)
Further, television in the United States is the primary source of information of politics for the majority of the population and although it was not feasible for broadcasters to allow unlimited access to a candidate debate, the requirement of neutrality remained. A broadcaster denying access to a candidate on the basis of whether or not it agrees with a candidate would be considered viewpoint discrimination. Therefore, the Court held that the broadcaster could exclude Forbes or others from it, subject to reasonable, viewpoint-neutral exercise of its journalistic discretion.
What Type of a forum was the AETC Debate?
After establishing that the AETC debate was a forum of some type, the Court turned to answering what type. There are three categories of speech fora: 1) the traditional public forum, 2) the public forum created by government designation, 3) and the nonpublic forum. (Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985)) The traditional public forum is defined by the objective characteristics of the property, such as whether by long tradition or by government fiat the property has been devoted to assembly and debate. (Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983)) The exclusion of a speaker from this kind of forum is only justified to serve a compelling state interest, and the exclusion is narrowly drawn.
Regarding the second category, the Court explained that a designated public forum is not created “when the government allows selective access for individual speakers rather than general access for a class of speakers.” Designated public fora are created by purposeful government action, which is accomplished by intentionally opening a nontraditional public forum for public discourse. For examples, a designated public forum is created when the government makes its property generally available to a certain class of speakers, such as when public universities allow the use of their facilities to student groups. On the other hand, a public forum is not created when the government restricts access to it to a particular group who must seek permission to access it.
Here, the AETC debate was not in an open-microphone format and was not available to all candidates for the Arkansas’ Third Congressional District seat. AETC allowed only certain candidates to participate on a case-by-case basis. Such selective access made the debate not a public forum. The Court found the debate in question to be a nonpublic forum, and exclusion from it was therefore not categorically prohibited, but was dependent on the broadcaster’s reasoning.
Did AETC’s exclusion of Forbes constitute viewpoint discrimination?
The debate’s nonpublic forum status did not allow AETC absolute discretion to exclude any candidate. “To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker’s viewpoint and must otherwise be reasonable in light of the purpose of the property.”
Accordingly, the Court looked into the nature of Forbes’ exclusion. In its examination of the legality of the AETC decision to exclude Forbes, the majority referred to the jury decision in this case, which found that “objections or opposition to his views” did not play a role. AETC Executive Director Susan Howarth’s testimony before the District Court revealed that Forbes was not included for the following reasons:
“(1) ‘the Arkansas voters did not consider him a serious candidate’;
(2) ‘the news organizations also did not consider him a serious candidate’;
(3) ‘the Associated Press and a national election result reporting service did not plan to run his name in results on election night’;
(4) Forbes ‘apparently had little, if any, financial support, failing to report campaign finances to the Secretary of State’s office or to the Federal Election Commission’; and
(5) ‘there [was] no ‘Forbes for Congress’ campaign headquarters other than his house.’”
The Court referenced Forbes himself describing his campaign organization as “bedlam” and the media coverage of his campaign as “zilch.” The Court disagreed with Forbes’ argument that he was excluded from the debate because his views were unpopular. Candidates with unconventional views sometimes enjoyed large support while those with traditional views enjoyed none. There was also no evidence that AETC excluded Forbes to manipulate the political process. Therefore, the Court concluded that Forbes was excluded because “he had generated no appreciable public interest.”
After finding that the debate was a nonpublic forum and that the selection of candidate access was the legal prerogative of the broadcaster, the majority reasoned that the decision to exclude Forbes complied with the First Amendment.
The Court reversed the Eighth Circuit ruling.
Justice Stevens authored the dissenting opinion, joined by Justices Souter and Ginsburg.
In Stevens’ view, the primary issue was the lack of narrow and objective standards used to justify Forbes’ exclusion and how this affected the constitutionality of actions taken by AETC. He argued that the current case was fundamentally different from Columbia Broadcasting System, Inc. v Democratic National Committee, 412 US 94 which held that the First Amendment cannot constrain “private network’s journalistic freedom.” [p. 893] Rather, the present case concerned the capacity of “a state-owned network to regulate speech that plays a central role in democratic government.” For this reason, he maintained that concerns of government censorship were more relevant and should have been taken into account by the Court.
Stevens argued that Forbes was excluded based on “arbitrary definitions of the scope” of the forum provided by AETC. This ran contrary to precedent, which established that “the State must respect the lawful boundaries it has itself set” when operating a limited forum. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995) According to Stevens, this case involved a problematic paradigm in which a government official is imbued with the capability to exercise prior restraint of speech “without narrow, objective, and definite standards to guide the licensing authority,” which the Court had found to be unconstitutional in multiple cases. Shuttlesworth v. Birmingham, 394 U. S. 147, 150–151 (1969); Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992) Stevens noted, however, that while the power of prior restraint in this case was not as great as in other cases, it nevertheless created a constitutional issue. Citing the Eighth Circuit decision, Stevens maintained that the inherent subjectivity of “political viability” rendered it insufficient to meaningfully guide the exercise of governmental power. Forbes v. Arkansas Educational Television Communication Network Foundation, 93 F. 3d 497, 505 (CA8 1996)
Stevens explained that the lack of objective guidelines resulted in editorial judgments which could easily have been contested. For instance, Forbes’ lack of financial resources was cited as a justification for exclusion, though Stevens noted that it could have (and arguably should have) been interpreted as a compelling reason to include Forbes in the debate alongside wealthier candidates. Furthermore, Stevens pointed out that the characterization of Forbes as a candidate “lacking support” was somewhat misleading, given that during a run for Lieutenant Governor two years before, he had garnered over 46% of the vote statewide and carried all but one of the counties in the 3rd Congressional District with absolute majorities. In Stevens’ view, the significant degree of support received by Forbes in recent elections could have been a decisive factor had voters been exposed to his political positions.
Stevens stopped short of endorsing the full opinion of the Eighth Circuit that all candidates were entitled to inclusion in the debate, but maintained that the lack of “neutral principles” for determining inclusion violated the First Amendment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome for freedom of expression. On the one hand, the majority judgment upheld the importance of journalistic discretion for broadcasters to select speakers and decide what content best serves the public interest and deserves to be televised. The Court conceded the fact that that “editors—newspaper or broadcast—can and do abuse this power is beyond doubt but “[c]alculated risks of abuse are taken in order to preserve higher values.” Thus, the judgment empowers journalism and protects broadcasters from facing the risk of legal claims of viewpoint discrimination for their editorial choices. On the other hand, the dissent rightly pointed out that Forbes’ exclusion was largely based on the broadcaster’s subjective assessment that he lacked “political viability,” rather than on established criteria for eligibility. Emphasizing the political viability of a candidate to justify restricting his access to a means of communication has the potential of silencing political candidates who may not have much organizational support behind them but whose participation could still impact the final election results.
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The Supreme Court ruled that public broadcasters can restrict candidate access to political debates, so long as the restrictions are not made on the basis of candidate viewpoints.
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