Wednesday, September 23, 2009
In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court upheld the exclusion of an Independent congressional candidate from a televised debate organized by Arkansas’s taxpayer-funded public television network. By a vote of six to three, the majority reversed the Eighth Circuit Court of Appeals and affirmed the state’s power to sponsor the general election debate closed to all but the Democratic and Republican candidates. To resolve the case, the Court grappled with two key questions. The first was whether the debate on a state-controlled station constituted a 'public forum' for First Amendment purposes, and, second, whether the exclusion of Ralph Forbes from the debate constituted 'viewpoint discrimination.' The Court determined that the debate was a 'nonpublic' forum. The majority also saw no viewpoint discrimination in Forbes’s exclusion. Justice Kennedy, who authored the majority opinion, was principally moved by the trial jury’s finding that Forbes was rejected as a participant by the debate managers not because they disliked his politics but because they correctly deemed his candidacy to be 'not viable.' Thus, the AETC’s exclusion of Forbes was not political viewpoint discrimination but a 'reasonable, viewpoint neutral exercise of its journalistic discretion.' In his dissent, Jamin Raskin concludes that the Court decided both of these questions erroneously and that the Court should have found that Arkansas was required to permit Forbes, a balloted candidate who had nearly become lieutenant governor in the prior election, to participate in the debate.
Download the article from SSRN here.