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Stations Can Omit Political Candidates

In free-speech test, the high court allows public TV stations to pick and choose debaters.

In a decision that may shape the future of political debating on television, the US Supreme Court says public TV stations can pick and choose the political candidates they allow on the air.

Yesterday's ruling, the biggest free-speech case of the current term, has divided newsrooms and civil libertarians around the country. The case pitted the journalistic judgment of government-financed TV editorial boards against the First Amendment claim of free political expression - and the government and journalists won.

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"In some ways, this is a clear victory for the First Amendment and the right of news organizations to determine content," says Ken Paulson of the Freedom Forum's First Amendment Center in Nashville, Tenn.

"News organizations are in a position to assess the viability of candidates, and that's an essential part of the editing function," Mr. Paulson says.

Not a viable candidate

The issue stems from a dispute between Ralph Forbes, a former American Nazi Party member and a GOP candidate for Congress in Arkansas, and the local PBS station, whose officials decided in the 1992 election that Mr. Forbes was not a viable candidate.

The 6-to-3 ruling authored by Justice Anthony Kennedy allows the government more leeway in deciding what kinds of expression it will allow on its property - and continues a conservative Rehnquist-court trend dating from the mid-1980s.

In two decisions earlier this decade, the high court said federal officials could choose what type of messages could be displayed on sidewalks outside post offices. The justices also have ruled that publicly-operated airports were not subject to open-ended free-speech challenges.

Lost access

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"The broader question after this ruling is, when does the government have to make its resources and facilities available to others, when it opens them to some?" says Erwin Chemerinsky, a law professor at the University of Southern California in Los Angeles, who derides the decision. "For many candidates without money, public TV is the only place they have to go."

Writing for the majority, Justice Kennedy said the Arkansas public station was simply engaging in a "viewpoint-neutral exercise of journalistic discretion." In other words, the editorial board of the public station did not favor or disfavor Forbes because of his unusual views. Rather, the station simply decided Forbes did not have a chance to win, and thus it would focus on the content and platforms of candidates who fell within a winning criteria.

The decision reversed an Eighth Circuit Court of Appeals ruling that stated Forbes had a constitutional right to access in a "limited public forum."

Justices John Paul Stevens, David Souter, and Ruth Bader Ginsberg picked up the Eighth Circuit court's line of reasoning. They chided their six fellow justices for understating "the constitutional importance of the distinction between state ownership and private ownership of broadcast facilities."

But one sense, the practical impact of the ruling may not be dramatically noticeable. Most public stations already hew to a formula for choosing candidates on the basis of polling data, inviting only candidates who stand some chance of winning.

Forbes's claims are not unusual simply because of his affiliation with nazism, nor because he later became a fundamentalist Christian minister. Rather, Forbes argued his newsworthiness and viability were based on his prior experience in Arkansas politics as a GOP candidate for lieutenant governor in 1988 and 1990.

In those contests, he scored respectably, garnering some 46 and 47 percent of the tally. He charged that the station discriminated against him because he sought to run in 1992 as the candidate from President Clinton's home congressional district.

Other Court Decisions

* Commercial airline pilots must retire at age 60. The high court said a federal law to that effect is constitutional.

* New Orleans's district attorney must surrender records of a 1960s investigation into President Kennedy's assassination to a federal board. The probe is fictionalized in the 1991 film "JFK."

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