Editorial Rights of Public Broadcasting Stations vs. Access for Minor Political Candidates to Television Debates.

• Author: Youm, Kyu Ho

1. INTRODUCTION

   Television has been an increasingly predominant player in American election politics over the years, especially with presidential elections in the United States. In 1993, Newton M. Minow, director of the Annenberg Washington Program, and Marvin Kalb, director of the Joan Shorenstein Barone Center at Harvard University, stated "[t]he modern presidential campaign is essentially a television event. The campaign reaches nearly all voters through television, and it reaches some of them exclusively through television; for them, the television campaign is the campaign."(1)

   Given the undisputed impact of television on election campaigns, it is little wonder that the television debate(2) between political candidates has emerged as one of the most crucial events for voters and candidates. NBC Executive Producer William O. Wheatley, Jr. said:

   I believe the Presidential debates to be of critical importance in the way our nation goes about choosing a leader. Indeed, it seems clear that they have become the most important events of the election-year calendar, the best opportunity for the candidates to make their cases directly to a large audience of potential voters and the best chance for the voters to listen carefully and weigh what the candidates have to say.(3) On the other hand, various issues relating to television debates have been a topic of heated discussion among politicians and broadcasters over the years.(4) Congress held hearings on presidential debates on television in June 1993. Al Swift, chairman of the House Subcommittee on Elections, noted during the hearings: "If Presidential debates are now a fixture, then they should be presented to the voters in the most unfiltered and fair way possible. Many questions need to be addressed. Who should sponsor these debates? ... Who should be included? ... What is the role of the media ...?(5)

   The questions posed by Swift are not separate from each other; they overlap in that the broadcast media's direct participation as a sponsor of candidate debates often involves the media in determining who should be included in or excluded from the debates. Also, what kind of broadcast media are involved as debate sponsors? Are the sponsoring media public stations or private commercial stations? These and related questions can be critical because the fundamental rationale behind public broadcasting differs significantly from that of commercial television.(6) Nevertheless, public television and radio stations operated by state and local governments have the same rights and responsibilities under the First Amendment as any private commercial station.(7) On the other hand, judicial interpretations of the editorial rights of state-owned stations in their programming decisions have yet to offer a sense of consistency and predictability to public broadcasting stations.

   The U.S. Court of Appeals for the Fifth Circuit, for example, held in 1982 that the First Amendment rights of viewers do not impose limits on the programming discretion of public television stations licensed to state instrumentalities.(8) The court found that the public television stations in question did not provide the general public a right of access and held that they were not "public forums."(9) By contrast, the U.S. Court of Appeals for the Eighth Circuit in Forbes v. Arkansas Educational Television Communication Network Foundation (Forbes I)(10) ruled that government-owned television stations could be limited public forums when they sponsor debates for political candidates. The Eighth Circuit in Forbes v. Arkansas Educational Television Commission (Forbes II)(11) affirmed its earlier conclusion that the debate was a limited public forum and a legally qualified candidate could be excluded only if the public station sponsoring the debate had a compelling and narrowly tailored governmental interest.(12)

   In an effort to clarify the lower courts' conflicting interpretations of the editorial decisions of public broadcasting stations, the U.S. Supreme Court in May 1998 addressed whether a state-owned public television station creates a limited public forum open to all legally qualified candidates by conducting a debate among political candidates.(13) In Arkansas Educational Television Commission v. Forbes,(14) the Court held that a state-owned public television station did not violate the First Amendment by excluding a third-party candidate from a political debate organized and broadcast by the television station because the debate was a nonpublic forum.(15)

   Professor Burt Neuborne of the New York University School of Law characterized Forbes as "a First Amendment tie" because it granted "broad but not unlimited discretion" to select candidates for a debate sponsored by public television.(16) But Forbes is more than a number on the First Amendment score card of the Rehnquist Court. As law Professor Bernard James at Pepperdine University argued in August 1998, while the issues involved "at first glance, are relatively narrow in scope and relevant to limited audiences," Forbes is "worthy of closer examination" because the case indicates that "the fabric of free-speech protection is woven less tightly than many assume, allowing government to control speech in ways that would be unconstitutional without the use of some special power or a narrow exception on which to rely."(17) From a long-term perspective on the First Amendment jurisprudence, Forbes illustrates the Supreme Court's willingness to draw "institutional distinctions in the context of free speech questions arising within the precincts of government."(18)

   Considering the enormous implications of Forbes--especially for public broadcasting--this Article examines various First Amendment issues involved in Forbes. Three questions provide the main focus of the Article. First, what is the constitutional and statutory framework for political candidates' access to television debates? Second, how did courts interpret the political candidates' claims for access to public television debates prior to Forbes? Finally, how did the U.S. Supreme Court in Forbes balance the conflicts between the candidates' access rights and the public broadcast media's editorial freedom?

2. TV DEBATES UNDER THE COMMUNICATIONS ACT

   Congress regulates broadcasting differently than the print media.(19) The First Amendment, which states that "Congress shall make no law ... abridging the freedom of speech, or of the press ...,"(20) does not apply to broadcasters in the same way it does to publishers. As the Supreme Court stated in 1969, various mass media may be treated differently under the First Amendment and broadcasters' rights are not equal to those of the print media.(21)

   The Communications Act of 1934, as amended,(22) requires licensing of radio and television stations, while there is no such requirement for the print media. This regulatory framework for broadcasting communication is derived from the scarcity of the radio spectrum, which should be used for the general public. Justice Felix Frankfurter, in a "classic statement of the justification for government regulation in broadcasting,"(23) stated:

   Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation. Because it cannot be used by all, some who wish to use it must be denied.... The right of free speech does not include, however, the right to use the facilities of radio without a license The licensing system established by Congress in the [Act] was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the "public interest, convenience, or necessity." Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.(24) Content regulations of broadcasting, which are also based on the scarcity of radio waves,(25) are extensive to such a degree as to be patently unconstitutional if applied to the print media. The personal attack rule is a good example. This rule requires that if a person is attacked on his honesty, integrity, character, or similar personal qualities "during the presentation of views on a controversial issue of public importance," he should be provided a reasonable amount of free time to respond by the broadcasting station involved.(26) The Supreme Court upheld the rule, reasoning that "as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused" and that "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."(27)

   By contrast, the Supreme Court struck down the "right of reply" statute challenged in Miami Herald Publishing Co. v. Tornillo.(28) The right of reply law resembled the personal attack rule at issue in Red Lion Broadcasting Co. v. FCC,(29) except that the former applied to the print media while the latter to broadcasting. The Court held that the reply statute was an unconstitutional governmental restraint on the press because it "exacts a penalty on the basis of the content of a newspaper."(30) The Court declared that "[a] responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legistated."(31)

   The responsibilities and obligations imposed upon broadcasters to serve the public are primarily based on the notion that those who receive licenses to operate radio and television stations are trustees of a valuable limited resource that belongs to the public. The U.S. Court of Appeals for the District of Columbia Circuit articulated the broadcasters' responsibilities:

   A broadcaster has much in common with a newspaper publisher, but he is not in the same category in terms of public...