Arkansas Educational Television Commission v. Forbes: Ending Debate on Political Debates - Daniel B. Greenfield

• Citation: Vol. 50 No. 2
• Publication year: 1999

CASENOTES

Arkansas Educational Television

Commission v. Forbes:

Ending Debate on Political Debates

In Arkansas Educational Television Commission v. Forbes,¹ the Supreme Court of the United States addressed whether, and under what circumstances, a public television network may exclude a so-called "minor" candidate from its televised debate. The Court, voting six to three, reversed the decision of the United States Court of Appeals for the Eighth Circuit and upheld the right of the Arkansas Educational Television Commission to exclude the candidate.² The Court held that the debate was a nonpublic forum and that a broadcaster could limit debate participants in the reasonable exercise of its journalistic discretion so long as the candidate was not excluded because of his political views.³

I. Factual Background

In 1992 the state-owned Arkansas Educational Television Commission ("AETC") produced five televised candidate debates for broadcast on

AETC's Arkansas Educational Television Network ("AETN"). In June 1992, AETC sent invitations to all ballot-qualified candidates for Arkansas's congressional races, which then included only Democrat and Republican nominees. In August, Ralph Forbes, an independent candidate for the Third Congressional District, gained the requisite number of petition signatures required by Arkansas law to appear on the ballot,⁴ and requested permission to participate in the October 22 debate. Forbes was a "perennial candidate who had sought, without success, a number of elected offices in Arkansas."⁵ Susan Howarth, AETC Executive Director, denied Forbes's request in writing, citing her "bona fide journalistic judgment" that AETC's viewers would be "best served" by including only the candidates already invited.⁶ Forbes then sued for injunctive relief, claiming a First Amendment right to participate in the debate and alleging that AETC was excluding him in order to keep the public from hearing his views.⁷ On October 20, the district court denied Forbes's motion for a preliminary injunction, and the debate aired without him.⁸ Forbes amended his complaint on November 2 (the day before the election), alleging additional statutory and regulatory violations by AETC, its officers, and several other defendants.⁹

The district court granted Defendants' motion to dismiss for failure to state a claim upon which relief can be granted,¹⁰ both on substantive grounds and because Forbes failed to exhaust administrative remedies provided by the Federal Communications Commission.¹¹ On appeal, the Eighth Circuit affirmed the district court's dismissal of the statutory claims, but reversed on Forbes's First Amendment constitutional claim.¹² The court overturned then-current precedent¹³ and ruled that, because AETN was state-owned, Forbes had a "qualified right of access . . . and that AETN must have a legitimate reason to exclude him strong enough to survive First Amendment scrutiny."¹⁴ The court remanded the case to determine the proper forum classification for the debate (and thus clarify Forbes's right of access) and to determine whether AETC's reason for exclusion was sufficient for that classification.¹⁵ On remand, the district court ruled as a matter of law that the debate was a nonpublic forum, and that Forbes's exclusion was impermissible only if it was motivated by Forbes's viewpoints or as a result of political pressure.¹⁶ The jury found that this was not the case, and judgment was entered for Defendants.¹⁷ Forbes again appealed.¹⁸ In 1995 the Eighth Circuit Court of Appeals heard the case for the second time. Forbes challenged the district court's characterization of the forum and its holding that AETC's stated reason for his exclusion from the debate (that he was not a "viable" candidate) was sufficient.¹⁹ The court of appeals declined to disturb the jury's finding that Forbes was not excluded because of his views.²⁰ The court agreed that if the debate was indeed a nonpublic forum, AETC's reasons were sufficient to support a verdict in its favor.²¹ However, the court held that because "AETN, by staging the debate, opened its facilities to a particular group— candidates running for the Third District Congressional seat," AETN had, in fact, created a limited public forum.²² The court then held that AETC's subjective opinion of Forbes's viability constituted insufficient grounds to exclude him from that class of participants because a "viability threshold" was ruled to be "neither compelling nor narrowly tailored" to advance AETC's goal of serving its public television audience.²³ AETC appealed, and the United States Supreme Court granted certiorari.²⁴

II. Legal Background

Regulation of broadcasters' presentations of political speech began in 1927 with the emergence of what became known as the fairness doctrine.²⁵ A complementary statutory requirement, known as the equal time provision, was created as part of the Communications Act of 1934.²⁶ The Communications Act also created the Federal Communications Commission ("FCC"), the regulatory agency responsible for enforcing the Act's provisions.²⁷

In 1969 the constitutionality of both the fairness doctrine and the equal time provision was explicitly affirmed by the Supreme Court. In Red Lion Broadcasting Co. v. FCC,²⁸ the Court confirmed the FCC's right to force a radio station to provide equal time for an author who was the victim of a personal on-air attack, while also confirming the FCC's authority to revoke the license of a station that did not comply.²⁹ The court held that "it does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern."³⁰

Four years later, the Court clarified the extent of broadcasters' obligation to air political speech in Columbia Broadcasting System, Inc. v. Democratic National Committee,³¹ which combined appeals from two separate cases. In one case, the Democratic National Committee ("DNC") sought a declaratory ruling from the FCC that a broadcaster could not, as a general rule, refuse to sell air time to "responsible parties" presenting opinions on a political issue. In the other, "Business Executives Move for Vietnam Peace" had sued to force a radio station to air its editorial ads.³³ The FCC sided with the broadcasters in each case, but the court of appeals reversed.³⁴ The Supreme Court reversed the court of appeals, upholding the FCC's original decision.³⁵ Seven Justices agreed that the broadcasters, although licensed by the government, were not themselves government, but rather were private entities whose journalistic decisions were entitled to more First Amendment protection than any individual or group desiring air time (so long as the broadcaster provided balanced coverage of controversial issues consistent with FCC regulations).³⁶

With control over access to the private airwaves firmly in the hands of broadcasters, courts began considering whether the same rules applied to public broadcasters.³⁷ The first case to address this issue was decided in 1982, and it concerned the alleged right of individual viewers to compel public television networks to broadcast a particular program. In Muir v. Alabama Educational Televison Commission,³⁸ two public television networks³⁹ decided not to televise a program critical of the Saudi Arabian government, allegedly because of the United States government's concern over the damage the program might cause to U.S.Saudi relations.⁴⁰ The producers and several viewers sued to force the networks to air the program. The Fifth Circuit Court of Appeals said that "under the existing statutes . . ., as state instrumentalities, these public licensees are without the protection of the First Amendment," and therefore the principle that the broadcaster's First Amendment speech rights outweighed individual free speech rights did not apply.⁴² However, the lack of First Amendment protection for public broadcasters "does not result in individual viewers gaining any greater right to influence the programming discretion of the public licensees."⁴³ Instead, the court focused on whether public television, as public property, is a public forum, with only a limited right to exclude speakers and programs from its airwaves.⁴⁴

The court explained that in "cases in which a public facility has been deemed a public forum the speakers have been found to have a right of access because they were attempting to use the facility in a manner fully consistent with the 'pattern of usual activity' and 'the general invitation extended.'"⁴⁵ The court concluded that here "the general invitation extended" was to watch programs, not to schedule them, and thus it was "clear that the public television stations involved in the cases before us are not public forums. The plaintiffs have no right of access to compel the broadcast of any particular program."⁴⁶ Plaintiffs argued, in the alternative, that even if public television was not a public forum, the broadcaster still violated viewers' and producers' First Amendment rights when it "canceled a scheduled program because of the officials' opposition to the program's political content."⁴⁷ The court held, however, that "editorial decisions of public television stations owned and operated by the state . . . [should not necessarily] ... be viewed in the same manner and subjected to the same restrictions as state regulatory activity affecting speech in other areas."⁴⁸ The court reasoned that the government had a right to exercise editorial control over its own medium, and "political motivation" is one essential element of the decision-making process, particularly when deciding what political issues to cover "under the public interest standard."⁴⁹

Public forum jurisprudence crystalized shortly after Muir was decided. In Perry Education Ass'n v. Perry Local Educators' Ass'n,⁵⁰ the Supreme Court divided public...