Justices Question Barring Fringe Candidates From Debates on Public TV
By Joan Biskupic
Supreme Court justices voiced skepticism yesterday over whether public television stations have a right to exclude from televised debates any candidates who are on the ballot but only at the fringes.
At stake is the control public TV has over campaign debates that have become a staple of election coverage nationwide. The arguments pit broadcasters' interest in journalistic integrity and editorial control against an independent party candidate's First Amendment right to political speech.
"There are some things that private broadcasters can do and you cannot," Justice Antonin Scalia told a lawyer for a state-run television network, suggesting the exclusion of third-party candidates may be one of those forbidden things.
Chief Justice William H. Rehnquist was concerned, too, about state-run entities rejecting candidates, although he questioned whether public TV would have to invite a hypothetical write-in candidate called "Willy Wacko" and regarded as "a loser."
Public TV stations are generally free to decide which candidates to include in their debates. A high court ruling against the stations could increase public exposure for marginal candidates or cause some stations to abandon the debates.
The case before the court emerges from a dispute involving Ralph P. Forbes, a former member of the American Nazi Party who ran in 1992 as an independent candidate for Arkansas' 3rd District House seat. He claims the Arkansas public TV network acted unconstitutionally when it excluded him from a debate between the Democratic and Republican candidates after determining he was not a viable candidate. Forbes had no campaign headquarters other than his house and no staff other than his family.
A federal appeals court ruled for Forbes, saying that while journalists routinely make news coverage decisions based on a candidate's political viability, "the people making this judgment were not ordinary journalists: they were employees of government." The 8th U.S. Circuit Court of Appeals said the debate was a "public forum," and any exclusion of a candidate required great justification, beyond whether the person was a "viable" candidate.
Richard D. Marks, representing the Arkansas Educational Television Commission, told the justices yesterday that the integrity of public broadcast debates and other programs hangs in the balance.
"Editorial judgment is essential," he said, noting that with their license comes a responsibility to serve the public in a way that demonstrates journalistic integrity.
Justice David H. Souter asked whether reliance on what Marks described as the "principles of mainstream journalism" was not another way of saying that "a distinctly minority candidate always loses."
Justice Anthony M. Kennedy asked Marks whether editorial discretion could ever be subject to objective standards; Marks said no. Justices Sandra Day O'Connor and Ruth Bader Ginsburg suggested that criteria for debate participation should be made clear ahead of time.
For arguments in a free speech case, there was an ironic wrinkle: The microphones failed yesterday, making it difficult to hear, an occurrence that clearly perturbed some of the justices.
Kelly J. Shackelford, representing Forbes, said once a state decides to hold a political debate and invites candidates, it cannot reject a similarly situated candidate without a compelling justification.
He said exclusion undermines a candidate's chances at the ballot box. (Forbes got 3 percent of the vote in the 1992 general election. Republican Tim Hutchinson won the House race, and in 1996 was elected a U.S. senator.)
Shackelford disagreed with Marks on the case's potential effect on all public TV programming, saying a political debate is a particular event striking at the heart of free speech. To Rehnquist's question about "Willy Wacko," he said stations could enforce some objective standards requiring that candidates demonstrate some small support or have qualified for the ballot, for example but that they cannot "entrench" the major parties.
A ruling in Arkansas Educational Television Commission v. Forbes would be issued in coming months.
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