Broadcasters win, candidates lose First Amendment struggle

Tuesday, May 19, 1998

Ralph Forbes...
Ralph Forbes

Was the Supreme Court’s decision Monday in the case of Arkansas Educational Television Commission v. Forbes a victory or a defeat for the First Amendment?

Where you stand on that question depends on where you sit. The court, by a 6-3 vote, said government-funded public broadcasters can exclude minor candidates from televised debates they sponsor without running afoul of the First Amendment.

For broadcasters, both public and commercial, the decision was a big First Amendment win, moving them closer–though not all the way–to the broad control over content that the printed press now enjoys.

“It’s a sweeping reaffirmation of broadcaster discretion,” says Jack Goodman of the National Association of Broadcasters.

But for third-party candidates and those who want to open the political system to a wider range of voices, the decision was a defeat for First Amendment free-speech values. Arkansas congressional candidate Ralph Forbes, a former American Nazi, sued the state broadcast commission after being excluded from a 1992 debate sponsored by the network.

“This is a Supreme Court that is strong on the First Amendment, but it also believes in the two-party system,” says Steve Shapiro of the American Civil Liberties Union, which sided with candidate Ralph Forbes in the case.

“The rights of political outsiders will be the civil rights struggle of the next century,” adds Jamin Raskin, lawyer for former presidential candidate Ross Perot. “The court is hopelessly devoted to the established political system.”

Raskin asserts that the Arkansas broadcasters’ decision to exclude Forbes from the debate probably influenced the outcome of the election, which was narrowly won by the Republican candidate. “Where does the government get the right to decide who is acceptable and who is not?” Raskin asks.

The decision may also portend a negative ruling for the free-speech side in National Endowment for the Arts v. Finley, the pending Supreme Court case in which artists claim the NEA cannot use a decency standard to decide who should receive arts grants. In that case, as in the Arkansas public broadcasting case, the government agency is arguing that the First Amendment does not require it to provide benefits to all speakers. Monday’s win for the Arkansas broadcast commission could mean a win for the NEA as well.

The Supreme Court arrived at its decision in the Arkansas case by rejecting both extremes that were put before it. On the one hand, the decision by the U.S. Court of Appeals for the Eighth Circuit, by declaring that the Arkansas public television debate was a public forum, would have required that broadcasters invite every candidate on the ballot. (More than 20 candidates for president have appeared on ballots in each of the last three elections.) The Clinton administration, on the other hand, argued that the court’s First Amendment public forum analysis was not involved at all, and that broadcasters should have complete discretion.

The Supreme Court steered a middle course between the extremes, declaring that the debate was a forum in which the First Amendment was at play–but it was a non-public forum, where the sponsor can be selective in deciding who speaks. But that selectivity must be reasonable, the court said.

“To be consistent with the First Amendment, the exclusion of a speaker from the nonpublic forum must not be based on the speaker’s viewpoint and must otherwise be reasonable in light of the purpose of the property,” Justice Anthony Kennedy wrote for the majority.

The court said that to force broadcasters to invite all candidates would probably end up being counter-productive.

“Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all,” Kennedy wrote. Noting that a Nebraska debate was canceled in 1996 because of the Eighth Circuit’s ruling, Kennedy added, “A First Amendment jurisprudence yielding these results does not promote speech but represses it.”

“The court was saying, yes, the First Amendment is involved, but not every loony tune candidate can speak,” says E. Joshua Rosenkranz of the Brennan Center for Justice.

The decision was heartening not only to government-operated public broadcast stations, which comprise about two-thirds of the 350 public television stations nationwide. In evaluating the kind of editorial discretion public broadcasters are entitled to, the court reaffirmed a 1973 decision, CBS v. DNC, that involved commercial, not public television networks. “Public and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming.”

Goodman of the NAB says that kind of language was encouraging, even if it does not go so far as to disturb the court’s 1969 decision in Red Lion Broadcasting v. FCC. That decision, which upheld the fairness doctrine requiring broadcasters to give reply time to individuals criticized over the airwaves, described the differences between broadcast and print media that underlie the regulation of broadcasting. The court’s majority in the Monday decision said “the requirement of neutrality remains” for licensed broadcasters.

Justice John Paul Stevens, writing for the three dissenters, said the majority “seriously underestimates the importance of the difference between private and public ownership of broadcast facilities.”

Government-run public stations, because their actions can fairly be viewed as actions of the government, deserve special scrutiny, Stevens argued, because of the “risk of government censorship and propaganda” that are not at issue with private broadcasters.

As a result, Stevens said that public broadcasters’ decisions on who should be invited to a debate should be guided by “pre-established, objective criteria.” He criticized the majority for not explicitly requiring such criteria. Joining in the dissent were David Souter and Ruth Bader Ginsburg.

Related stories:

  • Supreme Court rules public broadcast stations can exclude candidates 5.18.98