Court Gives Public TV Choice in Debates
Washington Post Staff Writer
Tuesday, May 19, 1998; Page A02
The Supreme Court ruled 6 to 3 yesterday that public television stations have the right to choose which political candidates appear in the debates they broadcast. The decision could affect elections around the country because independent candidates frequently rely on public television as their best chance to reach voters and gain crucial name recognition.
Closely followed by broadcasters, civil libertarians and politicians, the case was considered an important test of First Amendment rights. It offered a striking conflict between the free speech rights of broadcasters, who want journalistic control over what their stations air, and those of candidates who fear they could be excluded merely for having unpopular views. Independent candidates insisted that when a state-run television station includes only the Democratic and Republican nominees, it unfairly endorses the entrenched two-party system.
But the Supreme Court said that if state-owned stations were forced to include in public debates candidates they believed had little public support or interest, the stations probably would simply decide to cancel the events altogether.
"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," Justice Anthony M. Kennedy wrote for the court. He said that would "diminish the free flow of information and ideas" and lead to a policy that "does not promote speech but represses it."
About two-thirds of the 348 public television stations are run by states, and Kennedy noted that a majority of the population says it gets most of its election information from television.
In determining who to allow to participate in a debate, the court said that a public TV station's decision need only be reasonable and based on neutral journalistic principles.
The court rejected the view that a state-run broadcast station creates a "public forum" with great access when it sponsors a debate and said, rather, that public broadcasters have journalistic considerations that necessarily lead them to screen candidates.
The case began when Ralph P. Forbes, a former member of the American Nazi Party who ran in 1992 as a congressional candidate from Arkansas, was kept out of a debate sponsored by the Arkansas Educational Television Network because the network thought he lacked public support.
The decision could affect campaigns in this fall's election cycle, particularly in parts of the Midwest overseen by the 8th Circuit Court of Appeals. That court, which was reversed by the high court yesterday, had said that a station could exclude a candidate only if it had a "compelling reason," a tougher standard. As a result of that ruling, the Nebraska educational TV network in 1996 canceled a scheduled debate between U.S. Senate candidates rather than meet the 8th Circuit's test. While one public TV debate may not be critical for a major party candidate, political experts say that for a minor party candidate, such a forum can be a promising means of gaining recognition.
"This will undoubtedly skew the outcome of elections," said American University law professor Jamin B. Raskin, who represented the Perot '96 organization and filed a "friend of the court" brief urging the justices to force public broadcasters to include independent candidates. Raskin noted that while many third-party candidates do not win, those who gain some level of public attention can nonetheless draw voters from the Democratic or Republican nominee and give the other a decisive edge.
Richard D. Marks, who represented the Arkansas public television station in Arkansas Educational Television Commission v. Forbes, said yesterday, "In many states, public TV is a crucial cultural institution. If it is going to be, as it now is, allowed to function as part of the free press, it must be able to give a depth and vibrancy to political coverage in the country."
Beyond the election context, yesterday's decision could affect the latitude that state-run entities have in other venues as well. Some lawyers said the ruling could guarantee state governments control in other media that may require editorial judgments, for example on their Web sites, and ensure that any government financing of campaigns need go only to select candidates who already enjoy a certain level of public support.
Kennedy was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Clarence Thomas and Stephen G. Breyer.
Dissenting were Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. In a statement written by Stevens, they said that while they do not think every candidate should have access to televised debates, they criticized the majority for failing to require that access to debates managed by state entities be governed by "pre-established, objective criteria."
Kelly Shackleford, who represented Forbes, said yesterday that a state-run operation should not be allowed to assess a candidate's viability and that the ruling allows a public television station "to make someone a fringe candidate."
But Marks, representing the Arkansas station, and Lewis K. Loss, general counsel for the Commission on Presidential Debates, which uses candidate criteria, said the ruling will only foster more public TV debates.
Said Loss, "The Supreme Court has recognized that the public interest is served by permitting debate organizers to extend debate invitations based on a good faith assessment of a candidate's public support."
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