Which Candidates Get to Speak on TV?
In key free-speech case, the high court weighs whether public TV has a duty to open its mikes to all contestants.
Ralph Forbes was a former American Nazi Party member with no cash, no campaign office, and a tendency to say things such as, "Clinton hates me and Hillary has tried to roast me with her eyeballs."
So Arkansas public TV officials decided he had no chance of winning a 1992 race for Congress in the president's home state. They refused to include him in a televised debate.
Mr. Forbes sued - and his suit has now led to a Supreme Court case that could have a profound impact on the future of political debate on public broadcast stations nationwide.
Which candidates are taken seriously in American politics runs hand in hand with which ones get air time on broadcast media. Buying air time and winning TV coverage is a driving motive of the campaign fund-raising that has soaked Washington in scandal.
The case also shows the effect judicial proceedings have on shaping the overall US electoral process. Campaign-finance reform may have stalled in the Senate, but the nation's high court continues to set important parameters for political contests.
At issue in Arkansas Educational Television Network v. Forbes is whether taxpayer-supported TV stations have the same right to control debates as private stations do, or whether they must operate as a public forum open to all legally qualified candidates.
Supreme Court justices heard arguments in the case yesterday. The outcome will shape the future of political debating on public TV, as stations consider how to draw the line between a restricted forum, where the only views come from candidates with money or name recognition, and an unruly free-for-all.
There's no denying that Forbes, who managed the presidential campaign of fellow white supremacist David Duke in 1988, is a bit ragged around the edges as a public speaker - though he's both a fundamentalist minister and a veteran Arkansas politician.
Speaking briefly at the National Press Club here the night before his case was argued at the Supreme Court, Forbes skipped from concern about Soviet-type media control in the United States to conspiracies by "arrogant Orwellian bureaucrats" in Washington to a plea for God to save America.
Yet neither his gangly style, unorthodox views, nor background should have eliminated him from a debate on Arkansas public television in 1992, Forbes asserts, when he was trying to become the congressman from President Clinton's home district.
The Arkansas TV editorial board thought otherwise. It decided Forbes was neither "newsworthy" nor a "viable" candidate - despite his previous experience. Running in GOP primaries for Arkansas lieutenant governor in 1988 and 1990, he won more than 46 and 47 percent of the vote, respectively - and his strongest showing was in the congressional district he sought to represent.
Last year, the US Eighth Circuit Court of Appeals decided Forbes was wrongly excluded. The ruling, which said public television is a "limited public forum" and thus can't exclude anyone, was controversial. Public broadcasters, the Federal Communications Commission, and various states and cities oppose the ruling, while a broad coalition encompassing the political left and right support it.
Yesterday, the highest court in the land sought clarification about the responsibilities of taxpayer-subsidized public television stations. The court's decision is likely to affect a broad swath of local media outlets: Two-thirds of all nonprofit television stations in the US are government-licensed.
The lawyer for Arkansas public television, Richard Marks, said: "For us, the issue is whether the TV station is an institution insulated ... from political pressure...."
THE justices asked whether public TV stations - because of their government sponsorship - must ensure greater diversity in election debate forums than do their network counterparts, by spelling out broader standards for participation before a debate takes place. Several justices, including Sandra Day O'Connor, seemed to take issue with journalistic standards that were "unwritten" and not known to candidates.
At least seven of the justices were skeptical that excluding third-party candidates was not a form of "viewpoint discrimination." Justice Antonin Scalia, for example, asked whether a public TV station could endorse a candidate. "Would that be acceptable?" he asked. Justice David Souter said that ordinary journalistic standards were always the method by which "a station would make the judgment that this guy is a loser. Why isn't that viewpoint discrimination?"
Yet many justices were doubtful when Forbes's lawyer, Lee Shackleford, argued that all "subjective" criteria used by a public TV station are wrong. What was the problem with the subjective criteria used by Arkansas? asked Chief Justice William Rehnquist.
"They were appraising facts ... making determinations," said Mr. Shackleford.
To which the chief justice responded: How else would you plan a broadcast?