Libertarian Nat'l Comm. v. Terry Holiday

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0246p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIBERTARIAN NATIONAL COMMITTEE, INC.; THE ┐

LIBERTARIAN PARTY OF KENTUCKY; DAVID │

PATTERSON, │

Plaintiffs-Appellants, │

> No. 17-6216

│

v. │

│

│

TERRY HOLIDAY, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Kentucky at Frankfort.

No. 3:14-cv-00063—Gregory F. Van Tatenhove, District Judge.

Argued: July 25, 2018

Decided and Filed: November 2, 2018

Before: BATCHELDER, KETHLEDGE, and WHITE, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher D. Wiest, CHRIS WIEST, ATTORNEY AT LAW, LLC, Cincinnati,

Ohio, for Appellants. Christopher W. Brooker, WYATT, TARRANT & COMBS, LLP,

Louisville, Kentucky, for Appellees. ON BRIEF: Thomas B. Bruns, Cincinnati, Ohio, Robert

A. Winter, Jr., Fort Mitchell, Kentucky, for Appellants. Christopher W. Brooker, Deborah H.

Patterson, Sean G. Williamson, WYATT, TARRANT & COMBS, LLP, Louisville, Kentucky,

for Appellees.

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 2

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. In October 2014, Kentucky Educational Television (KET)

hosted a debate between the candidates for one of Kentucky’s seats in the U.S. Senate. KET

thought it would best serve viewers by giving airtime only to candidates capable of winning the

seat. It therefore limited the debate to candidates who met certain minimal criteria—including,

among others, that at least 1 in 10 Kentuckians actually planned to vote for them. Those criteria

excluded David Patterson, the candidate for the Libertarian Party of Kentucky. Patterson and the

Party thereafter challenged the criteria as unconstitutional. The district court rejected their

claims. So do we.

I.

A.

KET is run by the Kentucky Authority for Educational Television, a state agency. Since

1975, KET has televised debates between the candidates in various state and federal elections.

Specifically, it invites candidates to discuss their views in an interview format on the program

Kentucky Tonight.

Until 2014, KET invited any candidate who was legally qualified to appear on the ballot.

That was a low bar—Republican and Democratic candidates need only two signatures to qualify

for the primary ballot—so KET has over the years invited some decidedly nonviable candidates

to its debates. In 2012, for example, KET invited a congressional candidate whose sole

campaign activity (other than collecting the necessary signatures) was to appear on Kentucky

Tonight. And though the election for another House seat that year came down to a close race

between two candidates, KET also invited a third candidate, who ultimately won only 2.8% of

the vote.

In 2014, Senator Mitch McConnell was up for reelection. KET decided early that year to

limit its debates for that seat to candidates who had a viable chance of winning. The goal, as

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 3

KET officials said in emails and later in depositions, was to improve the debates for viewers.

KET first developed criteria for the debates between candidates during the Republican and

Democratic primaries. To meet those criteria, a candidate needed only to qualify for the ballot

and publicly to express his or her views on three issues.

Senator McConnell and Kentucky Secretary of State Alison Grimes won the Republican

and Democratic primaries, respectively. The next day, KET invited them to its debate for the

general election. KET officials also began to draft the criteria for that debate, eventually settling

on four. The candidate needed to be qualified to appear on the ballot, either because she was the

candidate of a political party as defined by Kentucky statute (e.g., the Republican or Democratic

nominee), or had collected 5,000 signatures. See KRS §§ 118.305, .315. She also needed to

have collected at least $100,000 in campaign contributions, to have received at least 10% of the

vote in an independent poll, and to maintain a website setting forth her views. KET did not

publish these criteria, but did send them to candidates who had indicated that they wanted to

participate in the debate.

McConnell and Grimes met these criteria when KET invited them. Others hoping to join

the debate needed to meet the criteria by August 15, three days after the deadline to qualify for

the ballot. According to KET, that date left enough time to include the names of the debaters in

a monthly magazine that KET sent to its viewers.

The Libertarian Party does not meet the statutory requirements of a political party in

Kentucky, so its candidate, Patterson, needed 5,000 signatures to qualify for the ballot. Those

signatures were apparently hard to come by: the Party had to pay canvassers to collect them, and

Patterson qualified for the ballot on August 11, the day before the deadline.

Patterson never asked KET for its debate criteria. By August 15 he had not raised

$100,000. (In fact, he raised $0 during his campaign.) Nor had he polled above 10%. Pursuant

to its criteria, KET did not invite him to the debate. When on August 16 the Libertarian Party

asked whether Patterson would be invited, KET sent the party the criteria and said it had invited

only candidates who met them.

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 4

B.

About two weeks before the debate, Patterson and the Libertarian Party sued various

KET officials, arguing among other things that KET had excluded Patterson because of his

views, and asking the district court to order KET to invite him. The court declined, finding that

KET had excluded only “non-serious candidates, not viewpoints.”

Patterson then sued the same officials again. In addition to his old claims, he alleged that

KET’s criteria were themselves unconstitutional. Patterson sought money damages from the

KET officials under 42 U.S.C. § 1983. The district court consolidated the two cases, granted

summary judgment to KET on Patterson’s challenges to the criteria, and dismissed his claim

against the host of Kentucky Tonight, Bill Goodman. The court later granted summary judgment

to KET on Patterson’s remaining damages claims. This appeal followed.

II.

A.

We review de novo the district court’s grant of qualified immunity to KET officials on

most of Patterson’s damages claims and on his challenges to the criteria themselves. See Leone

v. BMI Refractory Servs., Inc., 893 F.3d 359, 361 (6th Cir. 2018).

1.

To overcome that immunity and collect damages from the KET officials, Patterson first

must show that they violated a constitutional right. See Maben v. Thelen, 887 F.3d 252, 269 (6th

Cir. 2018). Patterson says their decision not to invite him to the debate pursuant to their criteria

violated the First Amendment. The controlling case on that question, both sides agree, is

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).

There, an independent House candidate, Ralph Forbes—who had obtained enough

signatures to appear on the ballot—asked Arkansas’s public television station to allow him to

participate in its debate. The station declined; in its view, Forbes had failed to establish himself

as a serious candidate. See id. at 671. The Supreme Court upheld that decision against the

candidate’s First Amendment challenge, explaining that public television stations have a “duty to

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 5

schedule programming that serves the ‘public interest[.’]” Id. at 673 (quoting 47 U.S.C.

§ 309(a)). Thus, the criteria that a public station uses to decide which candidates to invite to a

debate must merely be reasonable and neutral as to the candidates’ viewpoints. See id. at 682.

And the Court made clear that, when a station excludes a candidate based on his “objective lack

of support,” the station acts both reasonably and neutrally with respect to viewpoint. Id. at 683.

That is all KET did here. Its debate criteria had nothing to do with a candidate’s views;

rather, they measured whether voters had shown an objective interest in hearing the candidate,

e.g., whether only a marginal number of voters had supported him through donations and in the

polls. Per Forbes, KET was “not only permitted, but indeed required” to put viewers’ interests

above a candidate’s. Id. at 673. Indeed, in Forbes the Court considered much the same evidence

of candidate viability that KET considered here. Like Patterson, Forbes had little financial

support and had failed to generate serious interest among voters. See id. at 682. Thus the

decision to exclude Patterson, like the decision to exclude Forbes, “was a reasonable, viewpoint-

neutral exercise of journalistic discretion consistent with the First Amendment.” Id. at 683.

Patterson argues that KET used these criteria as a “facade” for viewpoint discrimination.

See Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 811 (1985). Yet throughout

this litigation Patterson has not made clear what his supposedly disfavored viewpoint was. He

now says that KET excluded him because he is pro-life. But there are several problems with that

theory, first among them that Patterson abandoned it by not arguing it below. See Taft Broad.

Co. v. United States, 929 F.2d 240, 243 (6th Cir. 1991). Moreover, Patterson offers no evidence

that he was publicly pro-life, that KET knew (or had reason to know) that he was pro-life, or that

KET is generally hostile to pro-life views. And KET readily invited Senator McConnell, who

unlike Patterson had openly campaigned against abortion.

Patterson also suggests that KET discriminated against all third-party candidates. But

that is not a theory of viewpoint discrimination, since not all third-party candidates have the

same views. Moreover, the evidence shows that KET wrote its criteria so that third-party

candidates could meet them. A previous third-party candidate, for example, had polled at 10%—

and Patterson himself says he almost did. And Patterson cites nothing to support his assertion

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 6

that, throughout the election season, KET revised the criteria to exclude third-party candidates,

rather than to refine the criteria for legitimate reasons.

That leaves Patterson’s theory that KET discriminated against him as a Libertarian. This

theory seems to be based on a number of internal KET emails from which Patterson asks us to

infer discriminatory intent. Some emails discuss excluding from the debate an “eccentric”

candidate—who both sides agree was not Patterson—and “out of state crusaders.” Yet these

emails do not mention Patterson or Libertarians. They relate instead to the primary debates,

which featured only Democratic and Republican candidates (and at which point Patterson had

not even qualified for the ballot).

A few emails do refer to Patterson. Specifically, one KET official asked for confirmation

that the October debate would not include Patterson and another candidate “because they did not

meet our pre-established criteria.” But the only inference one can draw from this email is that

KET did in fact exclude Patterson and others based on their failure to satisfy the criteria, not their

views. In another email, a KET board member—who mistakenly thought that the debate would

include a Libertarian candidate—said she wished it would not. But she had no say in who

participated. Finally, after being named in this suit, Goodman asked a friend over email whether

he should “take the 5th.” Patterson says this email shows that Goodman thought KET had

engaged in viewpoint discrimination. But no other evidence, including Goodman’s 14 hours of

testimony, suggests that KET in fact did. Hence these emails cannot prove Patterson’s theory.

To be sure, some remarks in the emails—particularly those about candidates other than

Patterson—were in poor taste. Yet the fact remains that, with relatively few limits, KET could

invite to its debates whomever it wanted. See Forbes, 523 U.S. at 682-83. And Patterson fails to

show that KET violated those limits here. The district court correctly found the KET officials

entitled to qualified immunity.

2.

Patterson next argues that KET’s criteria were themselves unconstitutional. As an initial

matter, this challenge asks us to do just what Forbes tells us not to do: namely, to “oversee”

KET’s “day-to-day” editorial decisions. Id. at 674. In any event, Patterson’s arguments lack

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 7

merit. He first equates the donation requirement, the polling requirement, and the August 15

deadline to so-called ballot-access requirements, i.e., restrictions on who may appear on the

ballot. Those restrictions are unconstitutional if they do not leave the ballot “genuinely open to

all.” Lubin v. Parnish, 415 U.S. 709, 719 (1974). But KET restricted who could appear in a

televised debate, not on the ballot. And under Forbes, states have substantial discretion to

restrict that type of access.

Patterson also suggests that the criteria were unreasonable under Forbes. Here his theory

seems to be that KET used a more onerous selection process than the one Forbes upheld. But if

anything, the KET criteria made the process more reasonable: whereas Arkansas made ad hoc

decisions about whom to invite, KET applied objective criteria. That Patterson found them

difficult to meet does not make them unreasonable. Instead it simply showed his “objective lack

of support.” Forbes, 523 U.S. at 683.

Patterson’s other challenges to the criteria largely restate his First Amendment claims,

and thus fail for largely the same reasons. He says the criteria violated the Due Process Clause

because KET did not publish them. But KET was not required to create—let alone publish—any

criteria at all. See Forbes, 523 U.S. at 681. Nor does the record support Patterson’s assertion,

pitched as an equal-protection claim, that KET applied looser criteria to the major candidates.

Although KET had invited Senator McConnell and Secretary Grimes before finalizing the debate

criteria, no one disputes that they met those criteria—and even the more stringent criteria that

KET had drafted by that point. The district court therefore correctly granted summary judgment

to KET on these claims.

B.

Patterson further challenges the dismissal of his damages claim against Goodman and the

grant of summary judgment to KET on the rest of his claims. We review those decisions de

novo. See Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 765 (6th Cir. 2014).

Patterson argues that the district court erred in dismissing his damages claim against

Goodman, which, he says, was the same as the claims against other KET officials that the court

allowed to proceed to discovery. To survive a motion to dismiss, a claim must state a plausible

No. 17-6216 Libertarian Nat’l Comm., et al. v. Holiday, et al. Page 8

ground for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Patterson asserts now that

Goodman was intimately involved in the decision to exclude him from the debate. But Patterson

failed to make the same assertion in his complaint. That document mentions Goodman only four

times: twice stating that he was “involved” in the alleged conduct; once stating that he had

received an email about Patterson; and once stating that he discussed a different candidate in

another email. None of these allegations made plausible the claim that Goodman was involved

in the decision to exclude Patterson from the debate (which, for the reasons above, was not itself

unlawful). Hence the district court correctly dismissed that claim.

C.

Finally, Patterson challenges the denial of his motion for reconsideration—specifically of

the dismissal order just discussed—or for leave to amend his complaint. We review those

decisions for an abuse of discretion. See Luna v. Bell, 887 F.3d 290, 297 (6th Cir. 2018)

(reconsideration); Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 461 (6th Cir. 2017) (leave

to amend).

Patterson filed this motion well after discovery had closed. At that point, the parties had

litigated the case for two years, over which they had deposed KET officials for many hours.

Perhaps unsurprisingly, then, Patterson’s motion identified no evidence that the district court had

not already considered. Rather, the motion merely cited entire depositions (with scant citations

to specific statements therein) in an attempt to reopen claims that the court had already decided

in KET’s favor. That motion gave the court no cause either to reconsider its decision or to allow

Patterson to amend his complaint. See Luna, 887 F.3d at 297; Duggins v. Steak ‘N Shake, 195

F.3d 828, 834 (6th Cir. 1999). The court was well within its discretion to decline to do so.

* * *

The district court’s judgment is affirmed.