Public radio station can exclude candidates from debate

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From the Fall 1999 issue of The News Media & The Law, page 23.

In early September, a split panel of the U.S. Court of Appeals in Richmond (4th Cir.) dismissed a case brought by a Reform Party candidate who claimed her exclusion from a political debate broadcast on a public radio station and a local television station violated her constitutional rights.

The court found that the radio and television stations did not qualify as “state actors” and consequently that a government entity had not denied the candidate her claimed constitutional right to inclusion in a forum the government had established for purposes of political debate.


During the 1997 gubernatorial race, former Virginia Gov. Douglas Wilder, who hosted a show on radio station WRVA at the time, arranged a debate at Virginia Commonwealth University, where he was a professor, between Democratic nominee Donald S. Beyer Jr. and Republican nominee James S. Gilmore III. In July 1997, Wilder finalized arrangements for the Oct. 6 debate, designated “Debate Virginia,” to be broadcast on both WRVA and television station WNVT.

Sue Harris DeBauche was the Reform Party candidate for governor. From Sept. 15 through Oct. 6, she and other members of the Reform Party allegedly placed several calls to Wilder asking to be included in the debate but received no response. On Oct.15, just a few weeks before the gubernatorial election, DeBauche filed suit in federal District Court in Richmond based on her exclusion from the debate.

The District Court dismissed DeBauche’s claim, finding that there was no government action involved.

Before the U.S. Court of Appeals in Richmond (4th Cir.), DeBauche contended that exclusion from the debate violated her First Amendment right to express her views in a “designated public forum,” in which the government cannot exclude persons based on either the content or viewpoint of their speech. DeBauche argued that her exclusion was premised on content and viewpoint discrimination, as it was based on her party affiliation.

DeBauche said she also brought suit on behalf of the Reform Party of Virginia, which had also been discriminated against because of its viewpoint and the content of its speech. DeBauche also argued that if the debate was a nonpublic forum, a government-sponsored debate still cannot exclude participants “without a reasonable basis.”

To successfully sue for a First Amendment violation, DeBauche had to show that a “state actor” deprived her of a constitutionally guaranteed liberty. Consequently, she maintained that VCU and its president, Eugene Trani, were state actors, and that Wilder, WRVA and WNVT had “jointly engaged with state officials” when they excluded her from the debate.

DeBauche asked the court to declare her exclusion from the debate a violation of her constitutional rights and asked the court to order that the Reform Party not be excluded from future debates. She also asked for compensatory and punitive damages and a court declaration that she “would have received 15% of the statewide vote” had she not been excluded from the debate.

The university and the broadcasters countered that, as private actors, Wilder and other VCU employees could not have engaged in state action that deprived DeBauche of her constitutional rights. They further argued that even if they had been state actors, DeBauche’s claims should not proceed due to the Eleventh Amendment’s guarantee of immunity. Under the Eleventh Amendment, a private citizen working for a state may enjoy qualified immunity from liability if the person does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The university and broadcasters argued that because of the lack of a clear standard in prior case law, they could not have known their actions amounted to a violation of DeBauche’s rights.

The appellate panel dismissed DeBauche’s suit. The majority of the panel held that links to a public university and broadcast stations did not convert Wilder and the broadcasters into state actors. The court noted that public broadcasters’ programming is generally not treated as a public forum, but that even in cases where such programming is treated as a public forum, programmers may still exercise reasonable, viewpoint-neutral, journalistic discretion.

Finally, the court held that even if it had found that Wilder’s actions violated DeBauche’s constitutional rights, it also would have found he enjoyed qualified immunity from liability because he could not have known at the time he hosted the debate of any such violation of her rights.

In objecting to the majority’s dismissal of DeBauche’s claim, Judge Robert King contended that “a political debate is perhaps the quintessential public forum.” King argued that DeBauche pleaded a sufficient legal claim to proceed to trial when she asserted that the university and broadcasters should be treated as state actors, and he rejected the qualified immunity defense. King contended that DeBauche was entitled to have a trial court address whether the president of VCU unconstitutionally discriminated against her in excluding her from the debate based upon her viewpoint, and also whether Wilder, as a professor at VCU, acted on behalf of the university in excluding her from the debate. (DeBauche v. Trani)