Petitioner
Arkansas Educational Television Commission
Respondent
Ralph P. Forbes
Petitioner's Claim
Arkansas Educational Television Commission excluded Ralph P. Forbes from participating in their television debate between major political party candidatesas an exercise of editorial judgment because Forbes's status as an independent political candidate made him politically unviable and, therefore, not newsworthy.
Chief Lawyer for Petitioner
Richard D. Marks
Chief Lawyer for Respondent
Kelly J. Shackleford
Justices for the Court
Stephen Breyer, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Ruth Bader Ginsburg, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
18 May 1998
Decision
Arkansas Educational Television Commission's (AETC) exclusion of Forbes fromthe debate was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.
Significance
This case is about a political candidate's First Amendment rights of free speech during media coverage of the electoral process. In a 6-3 decision, the U.S. Supreme Court ruled that a public television station can exercise editorial prerogative to exclude from debate a qualified fringe candidate whom the station believed could not win the election. Broadcasters, journalists, educators, and civil libertarians followed this case closely for at issue was also whether a public radio station always constitutes a public forum, in which there are very few controls on who may speak, or remains part of the free pressand is therefore subject to journalistic standards alone. This troublesome question of how to balance First Amendment rights when the government--in the form of a state-affiliated broadcast network--is the speaker led the court todevelop guidelines for a "public forum doctrine" in its decision.
The Events
In 1992 Ralph P. Forbes, a former American Nazi Party member, garnered enoughsignatures to become a viable (legally qualified) candidate for a congressional seat in the Third District of Arkansas. Arkansas Educational Television Commission decided to hold a debate on the government-funded Arkansas Education Television Network (AETN) between the Democratic and Republican party candidates. It denied Forbes's request to join the October debate.
Forbes sued AETC in federal court, claiming his First Amendment rights of free speech were violated by the exclusion. The federal court denied Forbes's request to join the debate; the debate proceeded between the two candidates. Forbes did not win the seat in the 3 November 1992 election.
In 1993, the federal district court dismissed Forbes's First Amendment claims. Forbes appealed in the Eighth Circuit U.S. Court of Appeals Arkansas Educational Television Commission v. Forbes (94-490), and on 28 April 1994,the court ruled in his favor.
Arkansas Educational Television Commission appealed the Eighth Circuit decision in the U.S. Supreme Court, but failed to get a hearing, so a jury trial was held in 1995, in federal district court. The jury determined that Forbes was excluded from the debate because he was a fringe candidate and not becauseof his political views. They ruled in favor of the AETN.
The Eighth Circuit Court then reversed the jury's ruling on 21 August 1996, on the grounds that the district court made an incorrect judgment that AETC was a nonpublic forum. It ruled in favor of Forbes, and ordered that a jury determine an entitlement of damages.
In November of 1996, AETC appealed to the U.S. Supreme Court. On 17 March 1997, the Court agreed to hear the case's oral arguments on 8 October. On 18 May1998 the court ruled in favor of AETC.
Editorial Discretion, or Government Censorship?
Forbes claimed the moral high ground in his statement that AETC violated hisFirst Amendment right to free speech and suggested the decision of AETC (considered a government-sponsored voice) was based on its disagreement with his political views. AETC's response was also based on the First Amendment, claiming editorial prerogative. Susan Howarth, AETC's executive director, denied Forbes's accusation of discrimination, listing the following reasons to prove the decision to exclude him was not only reasonable, but demonstrated journalistic responsibility:
In the 6-3 decision for AETC, Justice Kennedy also addressed an important, related issue. Several amicus briefs in support of AETC voiced the concern that, faced with the choice between an unwieldy open-microphone situationfor any political debate, or no political debate programming at all, public broadcasters and even educational facilities might opt for lack of controversyand choose the latter.
The American Civil Liberties Union (ACLU) sided with Forbes on the grounds that the forum of political debate was unique, not only because the forum was public, but because the stakes were so high. Other amicus briefs from groups supporting Forbes stated that all parties should be given the widest audience possible because television is the major venue for information regarding political campaigns.
The Importance of Public and Nonpublic Forums
The extent of political candidates' First Amendment rights of free speech depends partially on where the candidates speak, and who, if anyone, controls their access to the public ear. A private, invitation-only party differs greatly from a call-in news and talk radio show. In his discussion of the unique situation that a candidate debate poses, Justice Kennedy stated that "the special characteristics of candidate debates supports the conclusion that the AETCdebate was a forum of some type. The question of what type must be answeredby reference to our public forum precedents." He explained:
Impact
The implications of this case were far-reaching, and demonstrate not only thefull range of action possible through the law courts, but the delicate balance that exists between points of law and the Constitution. Arguing this casewere not only the parties involved. Joint briefs were filed by no fewer than20 states, the Federal Communications Commission (FCC), the Association of America's Public Television Stations (APTS), the Commission on Presidential Debates, the ACLU, and Acting Solicitor General Walter Dellinger.
Related Cases
Arkansas Educational Television Commission
Respondent
Ralph P. Forbes
Petitioner's Claim
Arkansas Educational Television Commission excluded Ralph P. Forbes from participating in their television debate between major political party candidatesas an exercise of editorial judgment because Forbes's status as an independent political candidate made him politically unviable and, therefore, not newsworthy.
Chief Lawyer for Petitioner
Richard D. Marks
Chief Lawyer for Respondent
Kelly J. Shackleford
Justices for the Court
Stephen Breyer, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, Clarence Thomas
Justices Dissenting
Ruth Bader Ginsburg, David H. Souter, John Paul Stevens
Place
Washington, D.C.
Date of Decision
18 May 1998
Decision
Arkansas Educational Television Commission's (AETC) exclusion of Forbes fromthe debate was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.
Significance
This case is about a political candidate's First Amendment rights of free speech during media coverage of the electoral process. In a 6-3 decision, the U.S. Supreme Court ruled that a public television station can exercise editorial prerogative to exclude from debate a qualified fringe candidate whom the station believed could not win the election. Broadcasters, journalists, educators, and civil libertarians followed this case closely for at issue was also whether a public radio station always constitutes a public forum, in which there are very few controls on who may speak, or remains part of the free pressand is therefore subject to journalistic standards alone. This troublesome question of how to balance First Amendment rights when the government--in the form of a state-affiliated broadcast network--is the speaker led the court todevelop guidelines for a "public forum doctrine" in its decision.
The Events
In 1992 Ralph P. Forbes, a former American Nazi Party member, garnered enoughsignatures to become a viable (legally qualified) candidate for a congressional seat in the Third District of Arkansas. Arkansas Educational Television Commission decided to hold a debate on the government-funded Arkansas Education Television Network (AETN) between the Democratic and Republican party candidates. It denied Forbes's request to join the October debate.
Forbes sued AETC in federal court, claiming his First Amendment rights of free speech were violated by the exclusion. The federal court denied Forbes's request to join the debate; the debate proceeded between the two candidates. Forbes did not win the seat in the 3 November 1992 election.
In 1993, the federal district court dismissed Forbes's First Amendment claims. Forbes appealed in the Eighth Circuit U.S. Court of Appeals Arkansas Educational Television Commission v. Forbes (94-490), and on 28 April 1994,the court ruled in his favor.
Arkansas Educational Television Commission appealed the Eighth Circuit decision in the U.S. Supreme Court, but failed to get a hearing, so a jury trial was held in 1995, in federal district court. The jury determined that Forbes was excluded from the debate because he was a fringe candidate and not becauseof his political views. They ruled in favor of the AETN.
The Eighth Circuit Court then reversed the jury's ruling on 21 August 1996, on the grounds that the district court made an incorrect judgment that AETC was a nonpublic forum. It ruled in favor of Forbes, and ordered that a jury determine an entitlement of damages.
In November of 1996, AETC appealed to the U.S. Supreme Court. On 17 March 1997, the Court agreed to hear the case's oral arguments on 8 October. On 18 May1998 the court ruled in favor of AETC.
Editorial Discretion, or Government Censorship?
Forbes claimed the moral high ground in his statement that AETC violated hisFirst Amendment right to free speech and suggested the decision of AETC (considered a government-sponsored voice) was based on its disagreement with his political views. AETC's response was also based on the First Amendment, claiming editorial prerogative. Susan Howarth, AETC's executive director, denied Forbes's accusation of discrimination, listing the following reasons to prove the decision to exclude him was not only reasonable, but demonstrated journalistic responsibility:
. . . the news organizations also did not consider him a serious candidate; . . . the Associated Press and a national election result reporting service did not plan to run his name in results on election night; . . . Forbes apparently had little, if any, financial support,failing to report campaign finances to the Secretary of State's Office or tothe Federal Election Commission.
In the 6-3 decision for AETC, Justice Kennedy also addressed an important, related issue. Several amicus briefs in support of AETC voiced the concern that, faced with the choice between an unwieldy open-microphone situationfor any political debate, or no political debate programming at all, public broadcasters and even educational facilities might opt for lack of controversyand choose the latter.
Were it faced with the prospect of cacophony on one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates' views at all . . . Theseconcerns are not speculative. As a direct result of the court of appeals decision in this case, the Nebraska Educational Television Network cancelled a scheduled debate between candidates in Nebraska's 1996 United States Senate race.
The American Civil Liberties Union (ACLU) sided with Forbes on the grounds that the forum of political debate was unique, not only because the forum was public, but because the stakes were so high. Other amicus briefs from groups supporting Forbes stated that all parties should be given the widest audience possible because television is the major venue for information regarding political campaigns.
The Importance of Public and Nonpublic Forums
The extent of political candidates' First Amendment rights of free speech depends partially on where the candidates speak, and who, if anyone, controls their access to the public ear. A private, invitation-only party differs greatly from a call-in news and talk radio show. In his discussion of the unique situation that a candidate debate poses, Justice Kennedy stated that "the special characteristics of candidate debates supports the conclusion that the AETCdebate was a forum of some type. The question of what type must be answeredby reference to our public forum precedents." He explained:
. .. [T]raditional public fora are open for expressive activity regardless of the government's intent. The objective characteristics of these properties require the government to accommodate private speakers. The government is free toopen additional properties for expressive use by the general public or by aparticular class of speakers, thereby creating designated public fora. Wherethe property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all . . . The parties agree the AETC debate was not atraditional public forum . . . Under our precedents, the AETC debate was nota designated public forum . . . Here, the debate did not have an open-microphone format.
Impact
The implications of this case were far-reaching, and demonstrate not only thefull range of action possible through the law courts, but the delicate balance that exists between points of law and the Constitution. Arguing this casewere not only the parties involved. Joint briefs were filed by no fewer than20 states, the Federal Communications Commission (FCC), the Association of America's Public Television Stations (APTS), the Commission on Presidential Debates, the ACLU, and Acting Solicitor General Walter Dellinger.
Related Cases
- Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973).
- FCC v. League of Women Voters of California, 468 U.S. 364 (1984).
- Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).
Further Readings
- Biskupic, Joan. "High Court Agrees to Review Ruling on Political Debates," Washington Post, March 18, 1997, p. 8.
- Biskupic, Joan. "Justices Question Barring Fringe Candidates From Debateson Public TV," Washington Post, October 8, 1997, p. 15.
- Fleming, Heather. "Court Forces Open TV Congressional Debate." Broadcasting & Cable, Sep. 23, 1996, p. 18.
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