Arkansas Educational Television Commission v. Forbes

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 AETC debate was a forum of some type. The question of what type must be answered by 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 to open additional properties for expressive use by the general public or by a particular class of speakers, thereby creating designated public fora. Where the 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 a traditional public forum . . . Under our precedents, the AETC debate was not a designated public forum . . . Here, the debate did not have an open-microphone format.