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  •   High Court Agrees to Review Ruling on Political Debates

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, March 18, 1997; Page A08

    The Supreme Court agreed yesterday to decide whether public television networks may exclude from debates fringe candidates who have generated little interest among voters.

    The justices said they would review a lower court ruling that said a state-run Arkansas network violated the free speech rights of an independent candidate for Congress when the network staged a debate with only Republican and Democratic candidates.

    A decision in the case could affect election coverage and debates by public TV stations nationwide. The Federal Election Commission, which is siding with the Arkansas Educational Television Commission, said the lower court ruling, if upheld, "will undoubtedly lead many state-entity licensees to abandon their sponsorship of such debates in the future." The case will be heard in the term that begins next October and a decision is expected sometime by mid-1998.

    The dispute began in 1992 when Ralph P. Forbes, an independent candidate for Arkansas's 3rd Congressional District, was excluded from a debate on the Arkansas Educational Television Network. The editors, citing Forbes's lackluster public support, determined that Forbes was not a serious candidate. They said Forbes's presence would detract from the time available for the candidates whose campaigns had generated significant public interest.

    Forbes claimed that his First Amendment rights had been violated, and his suit ultimately reached the 8th U.S. Circuit Court of Appeals, which ruled that the network had created a "limited public forum" by staging the debate and opening its facilities to congressional candidates. The court said once the state-run network had opened its facilities to some members of a particular group, it had to open them to all members of that group.

    "The real issue," appeals court Judge Richard S. Arnold wrote, "is the legal sufficiency of the reason given for the exclusion. If AETN had considered Mr. Forbes a viable candidate, it would, by its own account, have included him in the debate. . . . We have no doubt that the decision as to political viability is exactly the kind of journalistic judgment routinely made by newspeople. . . . But a crucial fact here is that the people making this judgment were not ordinary journalists: they were employees of government."

    In its appeal to the Supreme Court, the Arkansas Educational Television Commission said state-operated broadcast stations will be beset by demands from fringe candidates if the decision by the 8th Circuit, covering seven middle-America states, is not overturned. The commission stressed that its network never intended the debate to be open to all candidates – only those whose campaigns were generating public support.

    An agency of the state of Arkansas, the commission was created to operate the educational television network. About two-thirds of the public television stations nationwide are similarly licensed to state entities and could be affected by a ruling by the Supreme Court.

    In its brief to the justices, the commission noted that the 8th Circuit decision conflicts with other appeals court rulings and said, "If every program to which a viewer seeks access on these stations is held to be a limited public forum . . . any editorial decision can be challenged in federal district court. . . . No broadcaster can operate if it can be forced continually to prove that its editorial decisions meet" the high First Amendment standards that apply to public forums.

    Forbes countered in his filing that a state entity should not be able to hold a debate and then exclude candidates on the ballot. Forbes, who lost the 1992 election, said the exclusion violates "not only the First Amendment but the purpose of public television itself. Candidates for the U.S. office should expect equal access and equal treatment by the government. Any other approach would be dangerous to a free society."

    In separate action yesterday, the Supreme Court refused to hear a challenge to a Florida law that allows the state to sue tobacco companies for Medicaid money spent to treat smoking-related illnesses. The justices rejected without comment an appeal by Philip Morris Cos. and Associated Industries of Florida Inc. that argued that the 1994 law violates constitutional due process, in part, because it restricts the defenses companies can use to fight a lawsuit. The case is Associated Industries of Florida v. Agency for Health Care Administration.

    The justices also by a 6 to 3 vote rejected an appeal by antiabortion activists who were under a court order to stay away from a clinic in Vallejo, Calif. The order restricted them to a sidewalk across a four-lane avenue from the clinic. Dissenting justices Antonin Scalia, Anthony Kennedy and Clarence Thomas said the conduct by the protesters did not warrant such a fixed "buffer zone" as was upheld in a case last month for demonstrations in western New York state. The case is Williams v. Planned Parenthood of Shasta-Diablo.

    © Copyright 1997 The Washington Post Company

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