Unpopular candidate can be excluded from public television debate

U.S. SUPREME COURT–The U.S. Supreme Court held in mid-May that a public television station was not required to allow an unpopular candidate to appear in a televised debate.

The court ruled 6-3 that the Arkansas Educational Television Commission did not violate the First Amendment rights of candidate Ralph Forbes when it excluded him from participating in a televised debate between congressional candidates in 1992. Forbes, a former member of the American Nazi Party and self-proclaimed Christ Supremacist, claimed that the debate was a public forum and that he had been excluded based on his political opinions. The commission replied that the debate was not a public forum and that staff members decided to exclude Forbes not because of his beliefs but because he enjoyed little popular support.

Justice Anthony Kennedy wrote for the court that, because the commission allowed only “selective access” to the debate, it was not intended to be a public forum open to anyone who wished to participate.

“Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other,” Kennedy wrote, “a public television broadcaster might choose not to air candidates’ views at all.”

Because the debate was a nonpublic forum, the court held, the commission was free to select participants based on content-neutral criteria, such as popularity, chosen by broadcasters rather than mandated by the courts.

“Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion,” Kennedy wrote.

Justice John Paul Stevens dissented, joined by Justices David Souter and Ruth Bader Ginsburg. Describing the decision to exclude Forbes as “standardless,” Stevens said that the commission should have been required to use a more concrete standard than “political viability” to determine eligibility.

The Court’s holding overruled the decision of the U.S. Court of Appeals in St. Louis (8th Cir.), which held in 1994 that Forbes had a right to participate in the debate and that the commission failed to assert sufficient cause for excluding him. (Arkansas Educational Television Commission v. Forbes; Media Counsel: Richard Marks, Washington, D.C.)