TV station wins ruling on exclusion of candidate from debate

Friday, August 26, 2011

Despite being recognized as an “established political party” under Illinois law, the Illinois Green Party did not have a constitutional right to be included in debates sponsored by a privately owned public broadcasting station during the 2010 elections.

So ruled U.S. District Judge Robert Gettleman on Aug. 18 in Whitney v. Window to the World Communications. The ruling was a significant victory for Chicago station WTTW-11, which in October 2010 had excluded the Green Party’s Rich Whitney from a broadcast debate between gubernatorial candidates, and Lealan Jones from a debate between candidates for a U.S. Senate seat.

In his opinion, Gettleman did not invoke the U.S. Supreme Court’s 1988 decision in Arkansas Educational Television Commission v. Forbes, in which the court held that a state-owned public television broadcaster could, without violating the First Amendment, choose not to include an independent party candidate in a debate hosted by the station during a congressional campaign. He did not need to reach that issue, Gettleman said, because it was clear that WTTW-11, because it is privately owned, is not a state actor for First Amendment purposes.

Unlike the station at issue in Forbes, which was part of a network of stations owned by a state agency, WTTW-11 is owned by a private, nonprofit corporation. Under established constitutional law, a private entity can violate the First Amendment only if such a close connection exists between the entity’s conduct and the government that the conduct can fairly be considered an action of the state.

Gettleman noted that state action can be found if private actors work jointly with state actors, the state compels the private action, the state controls the private entity or the state delegates a public function to the private entity.

In this case, Gettleman ruled, no evidence existed that the State of Illinois had played any role in the decision to exclude the Green Party candidates. To the contrary, under Illinois law, the fact that Whitney collected 11% of the votes for governor in 2006 made the Green Party an “established political party” for election-law purposes.

“The mere assertions that public broadcasting is heavily regulated and that defendant receives federal funding do not, by themselves, convert an individual broadcast action into that of the government,” Gettleman held. “There are simply no facts alleged to suggest a sufficiently close nexus between the State of Illinois and the decision to exclude plaintiffs from the debates such that could support a conclusion that the decision was the result of coercive power or significant encouragement, either overt or covert, by the State.”

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