Arkansas Educational Television Commission v. Forbes

Forbes claimed the moral high ground in his statement that AETC violated his First 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 to the 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 situation for any political debate, or no political debate programming at all, public broadcasters and even educational facilities might opt for lack of controversy and 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 . . . These concerns 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.