Amicus Curiae Brief — Arkansas Ed. Television Comm'n v. Forbes

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TABLE OF CONTENTS

BY ORGANIZING A CANDIDATE DEBATE, A

STATE ACTOR CREATES A LIMITED PUBLIC

FORUM AND MAY NOT EXCLUDE LEGALLY

QUALIFIED CANDIDATES WITHOUT SHOW-

ING THAT EXCLUSION SERVES A COM-

PELLING INTEREST ......................

A.By Organizing a Congressional Candidate

Debate, AETN Created a Limited Public Forum

“Forbes from its Debate a

AS APPLIED BY AETN AND ON ITS FACE,

THE SCREEN OF POLITICAL VIABILITY IS

VIEWPOINT-DISCRIMINATORY ............

A.AETN’s Vague Test of Political Viability Was

a Pretext for Political Viewpoint Discrimination

Because it Was Not Used to Screen Out

B. Government Has No Power to Label Qualified

Candidates as Likely Winners and Losers in a

Forthcoming Election or to Award Important

*eeeeeeeeeeeeneeeneeeeeee

ee ee eeeereeeeeeeneeeeeenereeeeeeeeeeee

—_— ae ee ee ee ees fe eee ee eS Tf a en Se oe ee

C. Elections Serve Purposes Broader than Certi-

fying the Candidate With the Most Votes .......

D.Ballot Access Regulation is the State’s

Mechanism for Objectively Establishing Can-

didate Seriousness and State Actors May Not

Add to These Requirements in an Ad Hoc and

Subjective Way to Disfavor Candidates

III. BASED ON EMPIRICAL EVIDENCE, THERE

IS NO BASIS FOR THE CLAIM THAT

BALLOT-CERTIFIED INDEPENDENT AND

MINOR PARTY CANDIDATES WILL OVER-

. . ate

Pare | Ss re aa er - oe ae

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Celebrezze, 460 U.S. 780 (1983) ... 8, 19, 20, 21

Buckley v. Valeo, 424 U.S. 1 (1976) ................. 7, 21

Bullock v. Carter, 405 U.S. 134 (1972) ...........00055. 12

Cohen v. California, 403 U.S. 15 (1971) ................ 15

Cornelius v. NAACP Legal Defense and Educ. Fund,

ee ee eee ccccocdecese 4, 10

Denver Area Educational Telecom. Consortium v. FCC,

i Te 15

FCC vw. Pacifica Found., 438 U.S. 726 (1978) ............ 6

Forbes v. Arkansas Educ. Television Comm'n, 93 F . 3d

I 10, 15, 25

Hurley v. Irish-American Gay, Lesbian & Bisexual Group

of Boston, Inc., 515 U.S. 557 (1995) ................ 24

Illinois Elections Bd. v. Socialist Workers’ Party, 440 U.S.

th Raed Vet bibeewUda owes edicccec 17

Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750

ED eid ama te SbodNees CUM SS codSl FOCI es ceebcc 10

Lamb's Chapel v. Moriches, 508 U.S. 384 (1993) ...... 5, 22

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ........ 21

Morse v. Virginia, 116 S. Ct. 1186 (1996) .............. 12

Perot v. Federal Flection Comm'n, 97 F.3d 553 (D.C.

a a i hi i a ae cen in as 1, 2

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

SE EY RE Te ae eT ee 6

Rosenberger v. Rectors and Visitors of Univ. of Va.,

SE SEE 6.5 s cc dbedcoceadsececes 5, 9, 22, 23

Page

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ...... 21, 22

Texas v. Johnson, 491 U.S. 397 (1989) ..........-.-4+. 21

Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364

GERD |. oc cccccnsnceccuch cocin dcbeseSsiedidicecses 19

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624

GO c.coccccndenddovdsecacsddevecetecueres 8, 15, 16

Williams v. Rhodes, 393 U.S. 23 (1968) ..............+.- 19

Other Authorities:

John C. Berg, Cracks in the U.S. Two-Party System,

Clerk of the U.S. House of Representatives, Statistics

of the Congressional Election of Nov. 8, 1994 (1995)...14, 16

Clerk of the U.S. House of Representatives, Statistics

of the Presidential and Congressional Election of Nov.

a ff ees Pree 12, 14, 19

Congressional Quarterly'’s Guide to U.S. Elections

(John L. Moore ed., 3d ed. 1994) ...........-- 5 enue ll

Dubious Democracy: United States House of Represen-

tatives Elections 1982-1994, The Center for Voting

and Democracy, Aug. 1996 ............660cceseeeeee 13

1992 Election Preview, House: Arkansas, Cong. Q. Wkly

Rew. Cet. 26, BBEB 20 ice cccccescccevcdscvvesescces 12

Federal Election Commission Financial Data for House

General Elections Campaigns Through Dec. 31, 1992.. 12, 13

Federal Election Commission Matter Under Review 4451

(Sept. 5, 1996) and 4473 (Sept. 19, 1996) ............. 2

Page

The Federalist No. 57 James Madison) (Clinton Rossiter

Geis TED dood ccna doceetate sate seek ccmnicceccccs 15

Emmet T. Flood and William G. Mayer, Third-Party

and Independent Candidates: How They Get on the

Ballot, How They Get Nominated, in In Pursuit of the

White House (William G. Mayer ed., 1995) ........ 18, 20

J. David Gillespie, Politics at the Periphery (1993) ..... 17, 18

Harold Holzer, The Lincoln-Douglas Debates (1993) ....... 17

Norman J. Ornstein et. al., Vital Statistics on Congress,

pS LL SE CE 13

Brian L. Porto, The Constitution and the Ballot Box:

Supreme Court Jurisprudence and Ballot Access for

Independent Candidates, 7 BYU J. of Pub. Law 281

a ee ce | os cccoceces 20

Theodore Sorenson, Kennedy 1965) .................... 12

News Sources:

Donald P. Baker, Third-Party ‘Musketeers’ Duel on TV,

Wash. Post, Oct. 23, 1996, at A20 .................. 24

Ballot Access News at 5 (Richard Winger ed., Dec. 12,

pe ae ey 4

Behind Closed Doors, The Indianapolis Star, Sept. 29,

A cae ee Blin a int a ng mere 13

Gordon Black, The End of the Two Party Era?, Polling

I 18

David S. Broder, A Close Governor’s Race in Arkansas?,

Wash. Post, May 31, 1990, at AlO .................. 19

John Carmody, The TV Column, Wash. Post, Oct. 18,

PP CaGbhedkdedadecdiddeseebdicddvdecccodes 8

Page

Governor's Run for White House Heads Arkansas’ Slate

on Nov. 3, The Associated Press, Oct. 24, 1992,

available in 1992 WL 5148815 .............000 ee eees 12

Lloyd Grove, GOP Presidential Hopefuls Prepare for

Premiere Debate, Wash. Post, Oct. 27, 1987, at A5 ..... 24

Mimi Hall, Not to Forget the 18 Other Candidates, USA

» »- FS % 5 Peery eer te lar 24

Michael deCourcy Hinds, A Victory Over Illness Plays

Well in Politics, N.Y. Times, Feb. 20, 1994, at Al8 ..... 17

Michael deCourcy Hinds, The 1992 Campaign: Penn-

sylvania, N.Y. Times, Feb. 21, 1992, at Al5 ......... 17

Michael Kelly, The President's Past, N.Y. Times, July

Sh. SE, UE ED cducocded ccobsdaheuecbuscactees iss 18

Bill Lambrecht, The Democratic Presidential Hopefuls to

Use Debate to Kick Off Campaign, St. Louis Post-

Dispatch, Dec. 14, 1991, at 1B ......... 0.00 eee eees 24

Landslide for Feingold, Milwaukee Sentinel, Sept. 9,

SEE. Oe Te ccenccbedcantatcesaaanetrsiinenseses 16

Media Notes, Wash. Post, Oct. 28, 1996, at D1 ...... 13, 14

Moody and Checota in Close Race for Senate Nominaton,

Milwaukee J., Aug. 16, 1992, at Al ..............--- 16

Tom Morgenthau, Citizen Perot, Newsweek, Nov. 9,

EN Sey oe ee ee 17

New Mexico 3rd District Voters Choose Republican in

Upset, Associated Press, May 14, 1997, available in

f & Pee ay i aerre 18

Perot Should be Part of the '96 Debates, S. F. Chron.,

Sept. 16, 1996, at A20 ....... 0... cece eee e eee e eens 8

Ron Scherer, The Perot Factor: Maverick May Mine Voter

Discontent, The Christian Sci. Monitor, Aug. 20, 1996,

ee ECE AES S|. Tee 23, 24

Third Party Prospects, CQ Research, Congressional

Quarterly, Inc., Dec. 22, 1995, at 1139 ......... 18, 19, 20

Phil West, Cooper and Sasser Likely Wins in Senate, Poll

Finds, \ssociated Press, The Memphis Comm. Ap-

peal, July 28, 1994, at Al3

~ oy

INTEREST OF AMICUS CURIAE'

Perot '96 is the authorized campaign committee for the 1996

presidential candidacy of Ross Perot of Texas and his running mate,

Pat Choate of Washington, D.C. Perot and Choate drew some

8,085,294 votes in 1996, and Perot won 19,741,048 votes in 1992.

Perot '96 has a general interest in revitalizing and diversifying

American poiitics. It has a specific interest in opening up public can-

didate debates—which are critical to forming public opinion and voter

choices—to the full breadth and diversity of American political beliefs.

Perot ’96 has a particular interest in the outcome of this litiga-

tion. Despite the fact that they were on the ballot in all fifty states

and the District of Columbia and had received nearly $30 million

in federal funding based on Perot’s 1992 general election perform-

ance, Perot and Choate were excluded by Amicus Commission on

Presidential Debates (‘‘CPD’’) from the 1996 presidential debates

on the grounds that they had no ‘‘realistic chance of winning’’ the

1996 presidential election. Perot v. Federal Election Comm'n, 97

F.3d 553, 556 (D.C. Cir. 1996). Yet, when the privately-run CPD

decided to exclude Perot in September of 1996, he stood at precisely

the same point in the polls vis a vis President Clinton and Senator

Dole as he did vis a vis President Bush and Governor Clinton in

September of 1992, when the CPD decided to permit him to debate.

Moreover, the polling data establish that the overwhelming majority

of Americans favored the inclusion of Perot and Choate in the 1996

debates. Their exclusion deprived the American people of a critical

chance to make a fully informed electoral choice and significantly

Perot 96 would like to see the Supreme Court declare judgments

by subordinate state actors regarding political viability and popularity

! Pursuant to Rule 37.6 of this Court, amicus hereby states this brief was

authored entirely by counsel for Assicus Curiae Perot ‘96. No person or entity

other than amicus curiae made a contribution to the preparation or submission

of this brief. Pursuant to Rule 37.3(a), the parties have consented to the filing

of this brief. The parties’ letters of consent have been filed with the Clerk of the

Court.

to be inherently discriminatory and unlawful standards for the ex-

clusion of ballot-certified candidates from government-sponsored

political debates.?

SUMMARY OF ARGUMENT

The Arkansas Educational Television Network (“‘AETN’’) argues

that its debate should be treated as an exercise of journalistic editorial

judgment. However, it did not act here as a neutral journalistic

observer of campaign events. Rather, it decided to become an in-

stitutional participant in the political campaign by convening a public

forum whose sole purpose was speech by candidates for the benefit

of the electorate. As a state actor sponsoring a political candidate

debate, AETN created a limited public forum.

Having created such a forum, AETN may not restrict access to

a single class of candidates without showing compelling reasons for

doing so. One interest it offers is to comply with the Federal Com-

munication Commission's (‘‘FCC’s’’) licensing requirements, but

nothing in the record or in federal law remotely suggests that the

FCC required AETN to exchide Ralph Forbes, or would have taken

its license away for allowing him to debate.

AETN also argues that it has a compelling interest to provide

special programming not otherwise available to the public. But AETN

nowhere explains why it needed to exclude Forbes in order to fulfill

oe Gatinction walecian. On the conteary, Gnas eutea!

frequently exclude from their debates all candidates but Democrats

and Republicans, one would suppose that AETN’s mandate to serve

the whole public warrants the inclusion of all qualified candidates

2 Perot ‘96 was unable to get the federal courts to waive the Federal Election

Campaign Act’s exhaustion of administrative remedies requirement and hear its

case on an emergency basis during the campaign, see Perot at 556. Thus its com-

plaint with the Federal Exection Commission challenging the CPD's actions is still

live and outstanding. See Federal Election Commission Matter Under Review, 4451

(Sept. 5, 1996) and 4473 (Sept. 19, 1996). The complaint asserts, inter alia, that

the CPD’s use of standardless and subjective interpretations of political viability

for selecting candidates to participate in debates is contrary to FEC regulations, statute,

and the Constitution and thus raises issues analogous to those before the Court.

ed enn. lnchaling Independents and now or minor party

AETN has made no showing that the exclusion of Forbes served

a narrowly-tailored compelling interest. Nor could it do so. The real

AETN applied its unwritten test in a discriminatory fashion. It

automatically invited all Repubiican and Democratic candidates in

Arkansas’s four con . |] di t ict to tici i | ii I

whose campaigns were hopeless and had no more chance to win

than Forbes. It then subjected Forbes, the only Independent con-

gressional candidate in the state, to an ad hoc and arbitrary test

of his political viability. Forbes had no due process protections and

was given no chance to make his case.

Government must be a neutral umpire in elections and may not

regulate the citizenry’s access to a place on the ballot to assure

a threshold level of seriousness among certified candidates.

However, if subordinate state actors choose to sponsor debates,

they must invite all qualified candidates on the ballot and may not

invent new tests of candidate seriousness to replace ballot access

laws. Once candidates meet agreed-upon threshold standards of

seriousness for appearance on the ballot, public opinion must be

given free reign to shape government, and not vice versa.

getter. They are democracy’s way of promoting debate and allow-

ing candidates and parties to infuse new ideas and messages into

blic di ” Restricti blic debate by giving official effi

to anticipated election results undermines these purposes. To ex- _

clude candidates on the basis of viability is, by definition, to

or those with fewer resources. The fact that AETN bore no malice

or hostility towards Forbes is irrelevant.

There is no merit to the claim that upholding the Eighth Circuit’s

decision will flood governmental debate sponsors since ballot ac-

cess laws already serve to limit electoral contests to serious can-

didates. In the last 25 general elections, there have been on average

75 Independent or minor party candidates in the 435 U.S. House

districts. Today there would be on average no more than one ex-

tra candidate per House district.

ARGUMENT

I. BY ORGANIZING A CANDIDATE DEBATE,

A STATE ACTOR CREATES A LIMITED

PUBLIC FORUM AND MAY NOT EXCLUDE

LEGALLY QUALIFIED CANDIDATES

WITHOUT SHOWING THAT EXCLUSION

SERVES A COMPELLING INTEREST

A. By Organizing a Congressional Candidate

Debate, AETN Created a Limited Public

Forum

When a government-owned television network organizes and

stages a debate among political candidates, it creates a limited public

forum by ‘‘intentionally opening a nontraditional forum for public

discourse.’’ Cornelius v. NAACP Legal Defense and Educ. Fund,

Inc., 473 U.S. 788, 802 (1985) (citations omitted). The forum con-

sists of the governmental facilities, resources and time dedicated

to expressive activity for the purposes of political debate among

candidates. This may be ‘‘a forum more in a metaphysical than in

a spatial or geographic sense, but the same principles are applicable.’’

Rosenberger v. Rectors and Visitors of Univ. Va., 115

9617 of Va., 115 S. Ct. 2510,

Such a debate is a limited public forum for speech more than other

such fora recently recognized by the Court, including after-school

use of school facilities, see Lamb’s Chapel v. Moriches, 508 U.S.

384 (1993), and a system of university payments to outside con-

tractors for printing costs, see Rosenberger, supra. Here, beyond

simply opening up its facilities for outside use or paying for the speech

of others, the government is directly involved in staging, facilitating

and promoting the speech of candidates.

Yet, AETN urges the Court to treat a

didate debate as a form of journalistic ag a gr opel

Pet. at 24-30. On this theory, when AETN excluded Forbes from

its debate, it did nothing more unlawful than omit him from a news

report about the campaign. Accordingly, requiring AETN to invite

Forbes to join the debate would be like forcing its news editor to

ee een ene Saver en net cuter “nowsuer

didate debates, or define the nature and content of political dialogue

_ among the candidates.

However, when a government media entity decides to go beyond

simply covering an election campaign ad chooses to sponsor a

debate among candidates, it assumes a completely different role.

It acts not as a journalist but as the convener of a political town

meeting, a televised public forum in which candidates debate issues,

appeal to voters and answer questions from journalists and citizens.

The whole purpose of sponsoring such a forum is to create a public

space for political dialogue. If a government-organized debate is not

a limited public forum for political speech, it is hard to imagine what is.*

AETN struggles to characterize its forum in such a way as to

exclude Forbes by definition. It claims that it intended to define “‘the

class of debate invitees eo

support i ir campaigns, who had a realistic winning

iy ap ing ctl PUNE Magee le

interested.”’ Pet. for Writ of Cert. at 14. Yet this sleight-of-hand

begs the constitutional question since AETN may not confine its

forum to a sub-class of candidates without demonstrating a com-

pelling interest in doing so.‘

would be a compelling interest in government

osama sdabete toa candidates on the belt end encatig we

in candidates and non-candidates who want to participate: the in-

terest would be in allowing the electorate to see dialogue among

all candidates who have been certified as meeting the state's re-

quired threshold of public support necessary to establish them as

serious candidates.5 But Petitioner has offered nothing like a com-

3 The effort to liken government-run debates to journalism is thus deeply flaw-

ed. Acting as a journalist, AETN indeed would have maximum latitude in covering

debates. If it had covered one sponsored by the League of Women Voters and

found that Forbes’ statements were not “‘newsworthy,”’ it would have been free

as a journalist to omit him entirely from its news coverage. However, once AETN

decided to organize and sponsor a debate of its own, as a state actor intervening

in an election campaign it could not treat candidates on the ballot in unequal fashion.

As a journalistic entity, AETN can edit its news reports, but as a state actor it

cannot edit candidates out of a campaign. It is a “central tenet of the First Amend-

ment that the government must remain neutral in the marketplace of ideas. FCC

v. Pacifica Found., 438 U.S. 726, 745-46 (1978).

* See Perry Educ. Ass'n. v. Perry Local Educators’ Ass'n, 460 U.S. 37, 55 (1983)

(‘‘In a public forum, by definition, all parties have a constitutional right of access

and the state must demonstrate compelling reasons for restricting access to a single

class of speakers, a single viewpoint, or a single subject. . . . When speakers and

5 Contra the suggestion of Amicus CPD, see Br. of Amicus Curiae CPD at 4,

n. 3, there would clearly be a compelling interest in excluding from debates write-

in candidates, since they have not passed the state’s legitimate and objective

threshold test of political seriousness by securing a place on the ballot. See infra

Part I1.D.

pelling interest for restricting its debate to candidates who it thinks

have ‘‘a realistic chance of winning.”’ |

B. AETN Had No Compelling Interest in Ex-

cluding Forbes from its Debate

AETN has experimented with different theories of compelling in-

terest in this case. Its early theories closely reflected its actual

reasons for excluding Forbes—to give more time to the two

Democratic and Republican candidates and to prevent Forbes from

receiving the same “‘status”’ and “‘legitimacy”’ they would be receiv-

ing. Presumably because these reasons are viewpoint-

discriminatory,’ they have been dropped in Petitioner’s Brief and

* Petitioner has argued that ‘‘Mr. Forbes’ participation would reduce the time

available for debate between the two candidates in whose campaigns, and views,

the public was interested.’’ Pet. for Writ of Cert. at 15. It has also invoked an

interest in not “‘givfing] Forbes a status’’ and an “‘implied . . . degree of legitimacy

for his candidacy, that he had not earned on the campaign trail.” Id. (citing Tr.

Trans. at 201-02, 208).

’ Transferring the debate-time of lesser known, lesser financed or less popular

candidates to more established candidates is the very antithesis of the First Amend-

ment: ‘‘[T]he concept that government may restrict the speech of some elements

of our society in order to enhance the relative voice of others is wholly foreign

to the First Amendment, which was designed to secure ‘the widest possible

dissemination of information from diverse and antagonistic sources,’ and ‘to assure

unfettered interchange of ideas for the bringing about of political and social changes

desired by the people.’ ’’ Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (citations

AETN’s interest in not extending undue ‘‘status’’ and “‘legitimacy’’ to Forbes

is dressed-up viewpoint discrimination. AETN admits that its debate confers political

“‘status’’ and “‘legitimacy’’ but states that it wants to preserve these benefits

for the Democratic and Republican candidates ‘‘in whose campaigns, and views,

the public [is] interested.’’ Pet. for Writ of Cert. at 15. AETN never actually did

a study to determine whether the public was in fact interested in Forbes’ views—or,

for that matter, the views of the other candidates. It simply ‘‘concluded that the

people of Arkansas ‘did not want to hear’ from Mr. Forbes”’ and were only ‘‘in-

terested’’ in the views of the candidates AETN assumed they were going to vote

for. This is a dubious assumption. Many voters know the views of the established

parties and are interested in, and open to, the views of minor party and Indepen-

dent candidates even if they do not presently plan to cast votes for them. For

example, in the 1996 presidential campaign, a huge majority of voters supported

including amicus Ross Perot and his running mate Pat Choate in the presidential

replaced by two perfectly respectable interests that have nothing

to do with the actual decision to exclude Forbes.

One theory offered is that AETN has a compelling interest ‘‘to

operate the Network in conformity with the FCC’s licensing re-

quirements.’’ Br. for Pet. at 37. AETN actually suggests that allow-

ing Forbes to debate would ‘‘cause Arkansas to give up [control

over all of its programming], placing its qualifications as a licensee

in jeopardy.” Id. at 38. Aside from the absurdity of suggesting that

allowing a third candidate to join its debate would mean surrender-

ing ‘‘control over all of its programming,’’ there is absolutely nothing

in the record or in federal law to support the proposition that AETN’s

license would have been ‘‘in jeopardy”’ if it had allowed Forbes to

debate. In effect, AETN is arguing that federal law or the FCC

somehow compelled it to exclude Forbes, which is preposterous.

The other theory advanced by AETN is that it ‘‘has a compelling

interest to provide the special educational, cultural and informational

programming on public television that is not otherwise available to

debates despite the fact that most voters ended up casting their ballots for their

opponents. See Perot Should be Part of the ‘96 Debates, S. F. Chron., Sept. 16,

1996, at A20 (reporting Harris Poll finding that 76% of the public said Perot shouki

be invited to debate and ABC News poll finding that 63% wanted him in). Moreover,

Amicus CPD lost some 100 million debate viewers between 1992, when Perot

was allowed to debate his Democratic and Republican rivals, and 1996, when CPD

excluded him. See John Carmody, The TV Column, Wash. Post, Oct. 18, 1996,

at D4. Many voters instinctively grasp that ‘‘political figures outside the two ma-

jor parties have been fertile sources for new ideas and new programs’’ and that

‘‘many of their challenges to the status quo have in time made their way into the

political mainstream.’’ Anderson v. Celebrezze, 460 US 780, 793 (1983) (citations

But even if AETN had reason to believe that only a minority of voters were

‘interested’ in Forbes’ views, it is still the essence of First Amendment discrimina-

tion to exclude him for that reason. Withholding government benefits from the

champions of unpopular, unfamiliar or even obscure viewpoints is not a valid societal

interest. See West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)

(‘‘The very purpose of the Bill of Rights was to withdraw certain subjects from

the vicissitudes of political controversy, to place them beyond the reach of ma-

jorities and officials . . . . One’s rights to . . . free speech . . . and other fun-

damental rights may not be submitted to a vote; they depend on the outcome of

no elections.’”).

the public.’’ Jd. at 36. Stated at this level of abstraction, the in-

terest is wholly unobjectionable. But what does it have to do with

excluding Forbes? Is it AETN’s suggestion that every other can-

didates’ debate in the Third District included all three candidates

so the “‘special’’ mission of Arkansas public television was to pro-

vide a two-person debate ‘‘not otherwise available to the public?’

Surely the opposite is true: If any ‘‘special . . . informational pro-

gramming’’ is needed by the voting ‘‘public’’ in an election, it is

a debate in which all candidates on the ballot have a chance to ap-

pear and make their best case. After all, private debate sponsors

like Amicus CPD operate on the theory that they have a First

Amendment right to exclude everyone from their debates but

Democratic and Republican candidates. See Br. of Amicus Curiae

CPD at 6-7. Given the rampant partisan discrimination of private

debate sponsors, the distinctive role of public media is to serve the

entire public, including the estimated 20 percent of American voters

registered as Independents or as supporters of minor political

parties.*

There was no public interest in excluding Forbes, much less a

compelling one, and in any event, it is abundantly clear that there

were far less speech-restrictive alternatives available .°

one of the three qualified candidates at random. See Rosenberger at 30 (‘‘govern-

ment cannot justify viewpoint discrimination among private speakers on the

economic fact of scarcity’’ and declaring it ‘‘incumbent on the State, of course,

to ration or allocate the scarce resources on some acceptable neutral principle(.)’’).

Similarty, if AETN feared that it might confer on Forbes unwarranted ‘‘status’’

and ‘‘legitimacy,’’ it could have broadcast a disclaimer at the start of the show,

Il. AS APPLIED BY AETN AND ON ITS FACE,

THE SCREEN OF POLITICAL VIABILITY IS

VIEWPOINT-DISCRIMINATORY

Whether or not its debate was a limited public forum, AETN could

not, as a state actor, discriminate against a qualified congressional

candidate on the putative grounds of his ‘‘viability’’ or “‘seriousness”’

because such a standard, both as applied here and on its face,

discriminates on the basis of political viewpoint.'° See Cornelius v.

NAACP Legal Defense Fund, 473 U.S. 788, 804 (1985) (any view-

point discrimination by government is categorically invalid, regardless

of what type of forum exists). AETN applied its viability test in a

plainly discriminatory fashion. It subjected minor party candidates

to the test but not the Democratic and Republican candidates, no

matter how hopeless their electoral prospects. Moreover, viability

or ‘‘newsworthiness,’’ in AETN’s current formulation, are intrin-

like the ones that appear at airports regarding religious proselytizers on the

premises. The disclaimer could have read: ‘‘Because of the requirements of the

First Amendment, AETN has invited all three qualified candidates for Congress

in the Third Congressional District to debate. This debate is intended to allow

the public to hear the candidates on the ballot and make an informed choice, but

is in no way meant to confer any undue status or legitimacy by the government

on any of the candidates.”

10 AETN appears to have used an unwritten and vague test of political ‘‘viabili-

ty,”” see Forbes v. Arkansas Educ. Television Comm'n, 93 F . 34 497, 500 (8th

Cir. 1996), ‘‘seriousness,"’ see Br. for Pet. at 16 (“‘Ms. Oliver concluded that

Mr. Forbes was not a ‘serious candidate’’’), or, now the favored formulation in

the Petitioner’s Brief, ‘‘newsworthiness."’ Jd. at 27. Whatever term AETN now

claims to have been interpreting, nowhere did it define by regulation or policy what

any of these terms mean or what its test or process actually was. Nor did AETN

give Forbes an opportunity to prove his viability or to appeal AETN’s findings.

Without any opportunity to make his case or to see, much less rebut, evidence

of his non-seriousness, Forbes was simply rejected by government officials who

consulted, without any policy guidelines, a handful of »ssociates ‘‘to get an assess-

ment of how politicians and knowledgeable political observers in Arkansas viewed

Mr. Forbes."’ /d. at 15. Respect for due process is so foreign in this context that

AETN did not even tell Forbes that it was sponsoring a debate among candidates

in his district. (He found out about it by accident.) These conditions are unaccep-

table for protection of our most precious political freedoms. See Lakewood v. Plain

Dealer Publ'g Co., 486 U.S. 750, 763 (1988) (stating that the “‘danger’’ of “‘con-

tent and viewpoint censorship"’ is ‘‘at its zenith when the determination of who

may speak and who may not is left to the unbridled decision of a government

official."”).

sically viewpoint-specific criteria for choosing candidates to par-

ticipate in debate because they discriminate on the basis of political

A. AETN’s Vague Test of Political Viability

Was a Pretext for Political Viewpoint

Discrimination Because it Was Not Used to

Screen Out Republican or Democratic Can-

didates Who Had No Chance of Winning

As applied in this case, viability (or any of its euphemisms

qunted sagiiehguteinetiertentedeioushaen amtet

As Petitioner candidly put it, ‘“‘AETN made the editorial decision

to invite to each debate only the Republican and Democratic can-

didates."’ Pet. for Writ of Cert. at 2 (emphasis added). Yet AETN

made this decision to invite all the Republican and Democratic can-

didates without considering the political viability of any of them.

The debate AETN sponsored in the First District vividly illustrates

the double standard at work. The First District of Arkansas is one

of the most Democratic districts in the country and has not sent

a Republican Representative to the House since 1868. Congres-

sional Quarterly’s Guide to U.S. Elections 978-1321 Gohn L. Moore

ed., 3d ed. 1994). In the eight elections prior to 1992, the

Democratic candidate received 68.9%, 100%, 100%, 64.8%,

97.2%, 64.2%, 100%, and 64.3% of the general election vote. Jd.

at 1279-1315. The Republican candidate, Terry Hayes, raised only

$38,015 compared to the Democrat's $439,343, and so was outspent

" As if conceding that it is an legitimate test for debate participation, AETN

now struggles to undermine the Eighth Circuit's conclusion that AETN excluded

Forbes because of considerations of his ‘ ‘political viability ."’ See Br. for the Pet.

at 32-33. It concedes that Forbes’ chances of election ‘‘were one factor’’ in its

decision, but asserts that there was ‘‘far more,”’ yet then proceeds to list six

factors that are all indicators of Forbes’ political viability: the level of the public’ s

interest in his campaign, the level of news coverage, the extent of his campaign

organization, his prior electoral performance, his fund-raising success, and the ex-

tent of his public appearances. Jd. Why would AETN look to any of these ““fac-

tors’’ except to determine whether or not Forbes was electorally viable?

better than 11-1. Federal Election Commission Financial Data for

House General Election Campaigns Through Dec. 31, 1992, at 22.

If we adopt AETN’s apparent definition of viability as likelihood of

winning the election, the Republican was simply never viable. In

the final tally in 1992, Democrat Blanche Lambert, a 31-year old

former staff aide in the office of the prior Democratic incumbent,

received 69.8% of the vote in her first election compared to 30.2%

for Hayes. See Clerk of the U.S. House of Representatives, Statistics

of the Presidential and Congressional Election of Nov. 3, 1992, at

5 (1993). In this district where Democrats outnumber Republicans

nearly 3 to 1, the Republican never had a prayer and yet was in-

vited to debate without passing any test of seriousness at all.'”

A similar story can be told about the Second Congressional District

debate, to which AETN invited not only the ‘‘popular incumbent,”’

Democratic Congressman Ray Thornton, but ‘“‘long-shot Republican

challenger Dennis Scott,” who ‘‘filed at the last minute to run, saying

(‘Jno incumbent should get a free ride.[’]’’™ Scott had never before

held public office and, despite his Republican credentials, raised only

$5,724—less than what was raised by Forbes, who collected $9,754.

Federal Election Commission Financial Data for House General Elec-

tions Campaigns Through Dec. 31, 1992 at 22.% Congressman

Thornton was overwhelmingly favored to defeat Scott in this strongly

Democratic district. In the 1990 election, he captured 60.4% of the

2 1992 Election Preview, House: Arkansas, Cong. Q. Wkly Rep., 3366-67, Oct.

24, 1992.

‘3 Governor's Run for White House Heads Arkansas’ Slate on Nov. 3, The

Associated Press, Oct. 24, 1992, available in 1992 WL 5148815.

4 Beyond the obvious double standard at work, it is unconstitutional to use

wealth or fundraising capacity as a classification to disadvantage voters and can-

didates. See Bullock ». Carter, 405 U.S. 134, 144 (1972); Movse v. Virginia, 116

S. Ct. 1186, 1189 (1996). There is also no record of Scott having a campaign of-

fice outside of his home, but AETN used this same fact to penalize Forbes. See

Br. for Pet. at 15. Of course this snobb} . standard, if enacted by the Arkansas

legislature as a criterion for ballot or debate access, would be unconstitutional.

Ralph Forbes had as much right as Steve Forbes or John F. Kennedy to run his

campaign out of his home without being penalized by government. See Theodore

Sorenson, Kennedy 171-172 (1965) (discussing John F. Kennedy's use of his homes

in Hyannisport and Palm Beach as the base of his presidential campaign).

vote and then increased his share in 1992, beating Scott by 74.2%

to 25.8%, a landsiside seemingly disproving any claim that Scott was

ever viable in AETN’s terms. It is unlikely that any Republican or

Independent could have been ‘‘viable’’ given the history of this

district in which the prior Democratic incumbent, Rep. Tommy

Robinson, achieved victory margins of 85.8% in 1986 and 83.5%

in 1988. Id. Had he been an Independent or third party candidate,

Dennis Scott simply would never have been invited to debate.

Even if AETN’s standard of viability were to be neutrally applied

in Arkansas or any other state, there would be precious few debates

because candidates challenging incumbents are rarely ‘‘viable’’ in

the sense of having a ‘‘realistic’’ possibility of victory. The incum-

bent reelection rate is higher than 93%, and the vast majority of

House districts can be reliably assigned to either the Democratic

or Republican columns (or Independent in Vermont). See Norman

J. Ornstein et. al., Vital Statistics on Congress, 1995-1996, at 60

(1996) (calculation based on statistics from 1976-1996, inclusive-

ly). “‘More than five out of six incumbents won in every election

since 1954, including over 98% of incumbents in 1968, 1986, and

1988.’’ Dubious Democracy: United States House of Representatives

Elections 1982-1994, at 5, The Center for Voting and Democracy,

Aug. 1996. Even in 1994, a good year for challengers, 91% of

incumbents were returned to office. Jd. Most importantly, the vast

majority of House races are won every election by a victory margin

over 20%, which is ‘‘the traditional definition of a political landslide .”’

See id. at 3-4. Every House election in Arkansas between 1986 and

1990 was won by a landslide. Jd. at 19. Thus, most Democratic

and Republican challengers are simply never ‘‘viable;’’ they lose

by a landslide against an incumbent of the district’s majority party.'®

‘8 The same can be said of many Democratic and Republican presidential can-

didates, like George McGovern in 1972 or Barry Goldwater in 1964, both of whom

were widely believed never to have any chance at all. In 1996, the election

year when Ross Perot was deemed not ‘‘viable’’ and excluded by Amicus CPD,

Republican nominee Bob Dole was for months described by the Beltway Establish-

ment as ‘‘toast,"’ see Media Notes, Wash. Post, Oct. 28, 1996, at D1 and his cam-

paign ‘‘dead meat." See Behind Closed Doors, The Indianapolis Star, Sept.

29 1996, at B3. See also Media Notes, supra, (quoting Albert Hunt, ‘“This

Political party affiliation cannot validly be treated as a proxy for

electoral viability in Arkansas (or anywhere else).'° AETN thus prac-

__ ticed a blatantly discriminatory policy. All Democratic and Republican

nominees were invited to debate, whether or not they were politically

viable or newsworthy. All other candidates were subjected to

AETN’s vague and unwritten test. This procedure is the essence

of partisan-based viewpoint discrimination.

B. Government Has No Power to Label

Qualified Candidates as Likely Winners and

Losers in a Forthcoming Election or to

Award Important Political Benefits on that

Basis

Even if it were to apply its vague standard in a non-partisan way,

a government actor has no right to name winners or losers in a for-

thcoming public election, communicate its predictions to the elec-

torate, or selectively favor certain candidates with free publicity and

a stamp of implied government approval. The government’s pro-

per role is to regulate access to the ballot to assure the seriousness

of certified candidates, to offer a public forum to all qualified can-

didates if it wants to sponsor a debate, and, finally, to count the

ballots. All candidates must be treated equally regardless of their

election has been over at least since August,"’ Jack Germond: ‘‘It’s been over

for five months,’’ Sam Donaldson: ‘This election was over last February.’’). Yet,

the politically-skewed viability standard in practice always presumes that nominees

of the Democratic and Republican parties are, by definition, ‘‘viable’’ no matter

how hopeless political observers consider their chances.

‘© In some states, Independents are incumbents, and Democrats and Republicans

long-shots. For example, Vermont has sent Independent Bernie Sanders as its

at-large Representative to the U.S. House for the last three elections, and the

Democrats have rarely fielded an opponent. See, ¢.g., Clerk of the U.S. House

of Representatives, Statistics of the Presidential and Congressional Election of Nov.

3, 1992, at 73 (1993) (no Democratic challenger), Clerk of the U.S. House of

Representatives, Statistics of the Congressional Election of Nov. 8, 1994, at 41

(1995) (no Democratic challenger).

wealth or social standing, and government may not play favorites

in elections.”

By pronouncing candidates viable or non-viable and advertising

these designations to the electorate, government pastes political

gold stars or scarlet letters on citizens running for office. Yet by set-

ting itself up to affirm or reject the credibility of candidates, govern-

ment usurps the role of the electorate. If ‘there is any fixed star in our

constitutional constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics[.]’’ West Virginia Bd.

of Educ. v. Barnette, 319 U.S. 624, 642 (1943). The official

designation of non-viability becomes a self-fulfilling prophecy.

Even if it were constitutional, government has no expertise to

make such predictions. Because we have a secret ballot, declaring

candidates electable or not is guesswork, and the history of politics

is filled with great surprises.'® The only method politicians and media

have of predicting results is polling, but polls can fluctuate and are

anticipatory. If AETN had sponsored a debate for candidates in the

U.S. Senate Democratic primary in Wisconsin in 1992, it would have

excluded the eventual winner of the election, Russ Feingold, because

a major poll showed him at 10% of the vote compared to 42% for

17 James Madison asked, ‘‘Who are to be the objects of popular choice? Every

Citizen whose merit may recommend him to the esteem and confidence of his coun-

try. No qualification of wealth, of birth, of religious faith, or of civil profession is

permitted to fetter the judgment or disappoint the inclination of the people .’’ The

Federalist No. 57, at 351 Games Madison) (Clinton Rossiter ed., 1961).

18 See also Denver Area Educational Telecom. Consortium v. FCC, 116 S. Ct.

2374, 2405 (1996) (Kennedy, J., concurring in part, concurring in the judgment

in part, and dissenting in part) (quoting Cohen v. California, 403 U.S. 15, 24 (1971)).

(‘‘In the realm of speech and expression, the First Amendment envisions the citizen

shaping the government, not the reverse; it removes ‘governmental restraints

from the arena of public discussion, putting the decision as to what views shall

be voiced largely into the hands of each of us, in the hope that use of such freedom

will ultimately produce a more capable citizenry and more perfect polity.’’’).

1% The Eighth Circuit was right to find that ‘‘political viability” is ‘‘so suscepti-

ble of variation in individual opinion’’ as to ‘‘provide no secure basis for the exer-

cise of governmental power consistent with the First Amendment.’’ Forbes v.

Arkansas Educ. Television Comm'n, 93 F . 3d 497, 504 (8th Cir. 1996). The whole

point of a political campaign period is to allow candidates—through popular appeals ,

organizing, and debates—to change public opinion.

Congressman Jim Moody and 40% for businessman Joe Checota.

See Moody and Checota in Close Race for Senate Nomination,

Milwaukee J., Aug. 16, 1992, at Al. Yet Feingold went on to

overcome his rivals less than three weeks after this poll was taken,

collecting 69% of the vote to 14% each for Moody and Checota,

see Landslide for Feingold, Milwaukee Sentinel, Sept. 9, 1992,

at 1A, and then went on to defeat the incumbent Republican Senator,

Bob Kasten, in the general election.?°

If government cannot affix descriptions of ‘‘viable’’ or ‘‘non-

viable’’ to candidate names on the ballot, it should not be allowed

to do that to the candidates themselves during the campaign.

AETN’s self-appointed political gatekeeping function distorts its

legitimate role in democracy.?!

C. Elections Serve Purposes Broader than Cer-

tifying the Candidate With the Most Votes

By defining elections only in terms of who appears likely to col-

lect the most votes and suppressing the voices of others, govern-

ment chokes off important avenues of political expression and future

An election campaign is more than a numerical and mechanical

contest over who will take office when the election is over. It is

also democracy’s way cf promoting robust political debate among

*° To take another example, public opinion polls showed that Tennessee

Republican Senate candidate Bil Frist ‘“‘would lose by a 53-28 percent margin’ to

Senator Jim Sasser in 1994, see Phil West, Cooper and Sasser Likely Wins in

Senate, Poll Finds, Associated Press, The Memphis Comm. Appeal, July 28, 1994,

at Al3, but he ended up beating him 56% to 42%. See Clerk of the U.S. House of

Representatives, Statistics of the Congressional Election of Nov. 8, 1994, at 37

(1995). 7

*! “*There is no mysticism in the American concept of the State or of the nature

or ongin of its authority. We set up government by consent of the governed, and

the Bill of Rights denies those in power any legal opportunity to coerce that con-

sent. Authority here is to be controlled by public opinion, not public opinion by

authority." West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).

messages into popular discussion in order to influence the public

agenda. See, e.g., Illinois Elections Bd. v. Socialist Workers’ Par-

ty, 440 U.S. 173, 186 (1979) (‘‘[An] election campaign is a means

of disseminating ideas as well as attzining political office.’’); J. David

Gillespie, Politics at the Periphery, 27 (1993) (showing how advocacy

of woman suffrage and a progressive income tax in the early 1900s

by losing Socialist Party candidates led to enactment of the Sixteenth

and Nineteenth Amendments); Tom Morgenthau, Citizen Perot,

Newsweek, Nov. 9, 1992, at 23 (before Perot reentered the

1992 presidential campaign, ‘‘there was little or no sign that George

Bush and Bill Clinton were prepared to discuss [the] primal issues’’

of deficit reduction and generational equity, but Perot’s candidacy

made deficit reduction a central issue in the campaign).

Candidates often run to establish legitimacy for their politics and

to position themselves for a future race. For example, after par-

ticipating in a series of famous debates in Illinois in 1858, Abraham

Lincoln lost to Stephen Douglas in his bid for U.S. Senate. But Lin-

coln went on to win the presidency two years later largely based

on his extraordinary debate performance and the political views he

espoused while clashing with Douglas.?? Candidates also run to in-

fluence the outcome of the election even if they cannot win it. See

Gillespie, supra, at 108-09 (explaining how George Wallace was able

to deny a popular vote majority to either Republican Richard Nixon

2 See Harold Holzer, The Lincoln-Dougias Debates 24 (1993) (noting the per-

vasive belief that ‘‘Lincoin shrewdly used the debates mainly to position himself

for the presidency two years later."”). Many politicians have suffered multi-

ple losses before finding ultimate success with voters. For example, Robert Casey

“‘made a second career out of running for Governor’ in Pennsylvania, where over

the course of 20 years from 1966 to 1986, he continuously ran and lost for the

Democratic Nomination before finally winning in 1986. He narrowly won in the

general election, and was reelected to a second term in 1990 with 68 percent of

the vote. See Michael deCourcy Hinds, A Victory Over Iliness Plays Well in Politics,

N.Y. Times, Feb. 20, 1994, at Al8. See also Michael deCourcy Hinds, The 1992

Campaign: Pennsylvania, New York Times, Feb. 21, 1992, at Al5 (noting Arien

Specter’s unsuccessful bid for mayor in 1967, his loss in his reelection campaign

for District Attorney of Philadelphia, and his back-to-back losses in the 1976 Senate

primary and the 1978 gubernatorial primary before succeeding in his bid for Senate

in 1980).

or Democrat Hubert Humphrey, sending a national message).

Sometimes a defeat can propel a candidate's political career, such

as was the case in Arkansas’s Third Congressional District in 1974,

when Bill Clinton lost his race for the House, but then went on to

be elected Attorney General of Arkansas two years later. See

Michael Kelly, The President's Past, N.Y. Times, July 31, 1994,

at F20.

Given deciin llegi perience mn litics,?3

and the increased interest in new parties and Independent can-

didacies ,?* third party candidates today can affect electoral outcomes

decisively. In the most recent race for the House of Representatives,

a special election in the heavily Democratic Third Congressional

District of New Mexico, a Green Party candidate received 17% of

the vote, which was widely identified as the reason the Democratic

nominee, with 40%, lost to the Republican, who won with 42%.

New Mexico 3rd District Voters Choose Republican in Upset,

Associated Press, May 14, 1997, available in 1997 WL 2524964,

(citing as a “*key factor’’ the presence of the Green Party candidate

and “‘how strongly she attracted support from Democrats’’). This

result may influence the positions taken by Democratic and

Republican candidates in New Mexico on the environmental and

health issues raised by the Green Party. In 1994, no less than 18

*° See Gordon Black, The End of the Two Party Era?, Polling Report, Sept.

18, 1995. (““The two parties have today lost the firm allegiance of a majority of

the American electorate. Nearly 40% of the electorate is fully Independent in its

preferences and less than 30% is strongly attached to either of the two parties

combined.""); Emmet T. Flood and William G. Mayer, Third-Party and Indepen-

dent Candidates: How They Get on the Ballot, How They Get Nominated, in In

Pursuit of the White House 317 (William G. Mayer ed., 1995) (noting “‘long-term

decay of party allegiances within the national electorate.’”).

™* See John C. Berg, Cracks in the U.S. Two-Party System, at 41, Suffolk Univer-

sity, Presented at the Annual Meeting of the New England Political Science Associa-

ton, May 3-4, 1996 (showing rapidly growing numbers of Independent and minor

party House candidates placing second in general elections and receiving more

than 5 percent of the vote); Third Party Prospects, CQ Research, Congressional

Quarterly, Inc., Dec. 22, 1995, at 1139 (“’The disposition to vote for an Indepen-

dent candidate is higher than it has ever been in the past. While it is difficult to

make the choice, it is getting easier,’’ quoting Andrew Kohut, Director of Times

Mirror Center for the People and the Press.)

Independents and minor party candidates captured more votes than

the margin of victory between the major party candidates.?5

It is very possible that, had Forbes been allowed to debate by

AETN, he would have changed the outcome of the Third District

race. The narrow Republican victor, Tim Hutchinson, received

125,295 votes or 50.2% of the total, compared to Democrat John

VanWinkle, who received 117,775, or 47.2%. Clerk of the U.S.

House of Representatives, Statistics of the Presidential and Con-

gressional Election of November 3, 1992, at 5 (1993). Meanwhile,

Forbes captured 6,329 votes or 2.5%. Id. If Forbes, who describes

himself as a strong conservative, had been allowed to debate and

had been able to convert just one out of every fifteen of Hutchin-

son’s eventual voters, then the election would have gone to Van

Winkle. This, too, would have sent a clear political message. Forbes

posed a serious threat to the Republican candidate in the race given

that Forbes had captured more than 46 percent of the vote in the

1990 Republican lieutenant governor’s primary race, See David S.

Broder, A Close Governor’s Race in Arkansas?, Wash. Post, May

31, 1990, at Al0, sweeping fifteen of sixteen counties in the Third

District.7* See Joint Append. at 171.

5 Id.

* To be sure, some people dislike minor party candidates playing a ‘‘spoiler’’

role, but then they do not have to vote for them. And while some may favor a

““two-party’” system, there is nothing in the Constitution requiring that the two

parties be the Democrats and Republicans. The Court has already made clear that

minor party candidates have an equal right to run. See, ¢.g., Timmons v. Twin

Cities Area New Party, 117 S. Ct. 1364, 1367 (1997) Gnterest in political stability

“‘does not permit a State to completely insulate the two-party system from minor

parties’ or independent candidates’ competition and influence’’) (citations omitted);

Anderson v. Celebrezze, 460 U.S. 780, 802 (1983) (‘‘protecting the Republican

and Democratic Parties from external competition cannot justify the virtual exclu-

sion of other political aspirants from the political arena’’); Williams v. Rhodes, 393

U.S. 23, 32 (1968) (‘“There is, of course, no reason why two parties should re-

tain a permanent monopoly on the right to have people vote for or against them.

Competition in ideas and governmental policies is at the core of our electoral pro-

cess and of the First Amendment freedoms.’’) In any event, objections to ‘‘spoiler’’

candidacies are clearly based on how important they might be—not how irrele-

vant they are.

D. Ballot Access Regulation is the State’s

Mechanism for Objectively Establishing

Candidate Seriousness and State Actors May

Not Add to These Requirements in an Ad Hoc

and Subjective Way to Disfavor Candidates

Representing Unpopular Views

Ballot access laws are the state’s legitimate and objective way

of screening out frivolous candidates and guaranteeing the

seriousness of candidates who achieve a place on the ballot. See

Anderson at 788 n.9 (‘‘The State has the undoubted right to re-

quire candidates to make a preliminary showing of substantial sup-

port in order to qualify for a place on the ballot, because it is both

wasteful and confusing to encumber the ballot with the names of

frivolous candidates.’”). These laws embody the state legislature’s

decision about what level of demonstrated public support and in-

terest is required before a candidate will be deemed serious enough

to be certified and placed on the ballot.

In almost every instance, obtaining ballot access (for all candidates

but Democrats and Republicans) requires compliance with a labyrinth

of regulations and the collection of thousands of individual signatures

in an arduous, expensive, time consuming and frequently demoraliz-

ing process.?’ A third party today needs to gather more than 1.6

million signatures to qualify candidates in all 435 House districts.

See Third Party Prospects, CQ Research, Congressional Quarter-

ly, Inc., Dec. 22, 1995, at 1139. In Florida a third party candidate

for U.S. Senate needs to collect 196,788 signatures and a House

candidate 10,000. Jd. Thus, the grueling character of state ballot

access regulation experienced by Forbes and his volunteers in Arkan-

sas was typical. See Joint Append. at 84 (‘‘So it takes 10, 12 hours

a day to get even a few hundred signatures . . . . There was a lot

of obstacles. it was not an easy task.””) (testimony of Ralph Forbes).

2” See Brian L. Porto, The Constitution and the Ballot Box: Supreme Court

Junsprudence and Ballot Access for Independent Candidates, 7 BYU J. of Pub. Law

281, 288 (1993) (discussing the high threshold for ballot access in elections); Flood

& Mayer supra note 23, at 305 (getting on the ballot “is never an easy

undertaking’ ’).

Despite the hardships imposed by ballot access laws, such laws

provide for objective tests of candidate seriousness. They require

collection of a finite number of signatures from real citizens, a test

that all candidates understand, that measures seriousness with

precise numbers, and that the government can readily certify a can-

-didate as having passed or failed. The signature requirement is clear

and amenable to neutral application.

But AETN officials placed extra burdens on Forbes by imposing

on him an ad hoc and subjective test of his viability as a candidate.

Because the State of Arkansas had already certified Forbes’ objec-

tive seriousness by placing him on the ballot, AETN’s test was

focused not on his seriousness, but on its subjective perceptions of

his popularity.

When AETN declared Forbes not viable, it meant that he was

not popular and had little chance to win.” But the First Amend-

ment protects equally the political speech of popular and unpopular

citizens, people with maintream views and extreme views. See Texas

v. Johnson 491 U.S. 397, 414 (1989) (‘If there is a bedrock princi-

ple underlying the First Amendment, it is that the government may

not prohibit the expression of a idea simply because society finds

the idea itself offensive or disagreeable.’’) (citations omitted). This

principle ‘‘has its fullest and most urgent application precisely to

the conduct of campaigns for politial office.’’ Buckley v. Valeo, 424

U.S. 1, 15 (1976) (quoting Monitor Patriot Co. v. Roy, 401 U.S.

265, 272 (1971)).”* If AETN’s popularity standard were used to

28 See Joint Append. at 119 (‘He didn’t have popular support and didn’t have

a chance to win the election.’") (Testimony of Susan Howarth).

2° It is minor party candidates and Independents who will generally be excluded

on the grounds that they are not viable. Yet this circular system ensures self-

perpetuating rule by the Democrats and Republicans, a constitutionally disfavored

result. See Anderson v. Celebrezae, 460 U.S. 780, 794 (1983) (‘“[Tyhe primary values

protected by the First Amendment . . . are served when election campaigns are

not monopolized by the existing political parties.'"); Sweezy ». New Hampshire.

354 U.S. 234, 251 (1957) ("‘All political ideas cannot and should not be channeled

into the programs of our two major parties. History has proved the virtue

of political activity by minority, dissident groups, who times have been

in the vanguard of democratic thought and whose programs were ultimately

determine candidate access to the ballot itself, it would be obviously

However, AETN points to the jury finding that Forbes was not

excluded because of any political or personal animosity against him

in order to argue that his exclusion on the grounds of viability was

viewpoint-neutral. Yet, this is a non-sequitur. The test of First

Amendment viewpoint neutrality is an objective test that focuses

on the nature of a governmental classification that treats two classes

of speakers differently. See generally Rosenberger v. Rectors and

Visitors of Univ. of Va., 115 S. Ct. 2510 (1995). It is not a subjec-

tive test that focuses on the intentions or motivations of specific

government actors in suppressing a particular person’s speech.*°

The University of Virginia bore no malice or ill will towards

religious students or their views, but when it declined to give the

same speech privileges to religious student publications as it did

secular student publications, the Court found its policy to be

viewpoint-discriminatory. See id. Similarly, there was absolutely

nothing in the record before the Court in Lamb's Chapel to sug-

gest that the Center Moriches school system had personal or political

hostility towards the religious groups that it was excluding from use

discriminatory. See Lamb’s Chapel v. Moriches, 508 U.S. 384 (1993).

Regardless of the fact that there was no bureaucratic animus

against him as a person, the whole purpose and effect of excluding

Forbes was to block out presentation of a political viewpoint deem-

ed unpopular by a candidate deemed unpopular. This is the essence

of viewpoint discrimination. Nor does the fact that it would exclude

unpopular candidates of both right-wing and left-wing views rescue

AETN’s policy. See Rosenberger, 115 S. Ct. at 2518 (“The dissent’s

declaration that debate is not skewed so long as multiple voices

accepted. Mere unorthodoxy or dissent from prevailing mores is not to be

condemned.””).

» Petitioner's mistake. and the trial padge's confusion on this paint, is understand-

able since subjective anumus 1s often emdence of objective niewpomt discnmma-

tion, but it is not a necessary factual predicate in order for it to exist as a matter

of law.

are silenced is simply wrong; the debate is skewed in multiple

ways.”’).

Ill. BASED ON EMPIRICAL EVIDENCE, THERE

IS NO BASIS FOR THE CLAIM THAT BALLOT-

CERTIFIED INDEPENDENT AND MINOR

PARTY CANDIDATES WILL OVERWHELM

GOVERNMENT DEBATE SPONSORS

Petitioner argues that taking away the viability filter from debate

sponsors will cause huge numbers of candidates to flood debates

and ‘‘public broadasters would abandon the effort.’’ Br. for the Pet.

at 29. This is a farfetched scenario and tired canard.

In Arkansas’s four congressional districts in 1992, Forbes was the

only Independent or minor party candidate running, a sitation far

more reflective of our political culture than AETN’s hyperbolic

forecast. In the last 25 general elections for the U.S. House of

Representatives, there have been on average only 75 Independent

or minor party candidates running in America’s 435 congressional

districts.*' Thus, over the last fifty years, on average fewer than

one out of five congressional districts has seen even one Indepen-

dent or minor party candidate on the ballot at election time .*? The

idea that government debate sponsors could not handle non-major

party candidates is preposterous.**

* This figure, along with all the others, was calculated from election returns

reported in Congressional Quarterly Almanac and Congressional Quarterly Weekly

Report for each of the respective election years from 1948 to 1996.

™ Id. Even if we look at just the last ten years, a period of growth in minor

party activity, Petitioner's parade of horribles looks silly. In 1986, there were 91

Independents or minor party candidates; in 1988, there were 154; in 1990, there

were 170; in 1992, there were 458; in 1994, there were 256; and in 1996, the

peak year this century for minor party House candidacies, there were 487, or

just barely more than one per district on average. /d.

* Amicus CPD makes a similar argument that presidential debates would become

less manageable if the lock of the two-party system were broken. See Br. of Asmacis

Cunae CPD at 4. But in 1996, only three presidential candidates were eligible

to recetve public funding in the general election, which is the only federal statutory

defininon of seriousness we have. See Ron Scherer, The Perot Factor’ Maverick

May Mine Voter Discontent, The Christian Sci. Monitor, Aug. 20, 1996, at 3 (noting

24 =

is implausible, since nationally-televised debates in Democratic and

than two candidates.** Moreover, the suggestion that major party

candidates would pull out of debates if others were allowed to par-

ticipate is both false, as shown by the three-way 1992 presidential

debates in which Perot was included, and pernicious, since the CPD

is effectively arguing that an anticipatory heckler’s veto should be

extended to the two major parties.

If the Democratic and Republican candidates in the Third District

wanted to debate without Forbes being present, they had every

First Amendment right to arrange a private meeting of their own.

See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of

Boston, Inc., 515 U.S. 557 (1995). But AETN had no right to set

up and pay for a private debate between them and exclude Forbes,

who had met every requirement of candidate seriousness set by

Arkansas and possessed an equal claim to be a speaker in the govern-

ment’s candidate forum.

Columbia, see Mimi Hall, Not to Forget the 18 Other Candidates, USA Today, Nov.

5, 1996, at 8A, and only six candidates made it onto the ballot in sufficient states

For the foregoing reasons, Amicus Perot '96 respectfully urges

the Court to affirm the decision of the Eighth Circuit in Forbes.

Respectully Submitted ’

Jamin B. Raskin

Counsel of Record

American University

Washington College of Law

4801 Massachusetts Avenue, N.W

Suite 442

Washingon, DC 20016-8181

(202) 274-4011

R. Clayton Mulford

General Counsel, Perot '96

Hughes & Luce, L.L.P.

1717 Main Street, Suite 2800

Dallas, TX 75201

(214) 939-5500

June 30, 1997 Attorneys for Asmicus Curiae Perot '96

AMICUS CURIAE

BRIEF

Be eS Ae of Reo PME Sw A

No. 96-779 Ww

FILED

Supreme Court of the United Statese.

OCTOBER TERM, 1996

ARKANSAS EDUCATIONAL

TELEVISION COMMISSION,

Petitioner,

——Y .——

RALPH FORBES,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE ACLU OF ARKANSAS

IN SUPPORT OF RESPONDENT

Marjorie Heins

(Counsel of Record)

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

—_——_—- — — en

BEST AVAILABLE COPY:

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. iii

ee !

STATEMENT OF THE CASE ................. l

SUMMARY OF ARGUMENT ................. 5

ee ee eww cee 8

I. GOVERNMENT BROADCASTERS ARE

GENERALLY ENTITLED TO BROAD

PROGRAMMING DISCRETION AND

GOVERNMENT BROADCAST NET-

WORKS SHOULD NOT BE REGARD-

ED, FOR MOST PURPOSES, AS A

FORUM FOR SPEECH BY MEMBERS

| __ GPSE NS R 8

Il. WHEN A GOVERNMENT BROAD-

CASTER SPONSORS AND AIRS A PO-

LITICAL CAMPAIGN DEBATE, IT

CREATES A LIMITED PUBLIC FORUM

FOR SPEECH BY BALLOT-QUALIFIED

Re IER oe 16

Ill. REGARDLESS OF THE NATURE OF

THE FORUM CREATED BY AETN, ITS

EXCLUSION OF FORBES WAS UN-

CONSTITUTIONALLY VIEWPOINT-

BASED AND NOT REASONABLY RE-

LATED TO THE PURPOSE OF THE

DE Utes é day kethanebacbesscace 21

Page

A. Deciding That a Ballot-Qualified Can-

didate Is Not Viable Or That The Pub-

lic Will Be "Best Served” By Exclud-

i Him From A Debate Is Viewpoint

DD ooo s ck dha ce 22

B. Excluding Forbes was Unreasonable in

Light of the Forum’s Purpose......... 23

CONTIGS cc vnisbe sane Ch 26

TABLE OF AUTHORITIES

Cases

Aldrich v. Knab,

858 F.Supp. 1480 (W.D. Wash. A A ee 14

Anderson v. Celebreeze,

EE a a 19

Board of Airport Commissioners

v. Jews for Jesus,

EE 25

Board of Education, Island Trees

Union Free School District v. Pico,

SE 9, 13, 14

Bose Corp. v. Consumers Union,

I a 5

Bryant v. Secretary of the Army,

862 F.Supp. 574 (D.D.C. 1994) ................. 14

Buckley v. Valeo,

ES 6, 15, 21

Cammarano v. United States,

i 23

Chandler v. Georgia Public

Telecommunications Comm'n,

917 F.2d 486, 489 (11th Cir. 1990),

cert. denied, 112 S.Ct. 71 (1991) ........ 13, 15, 16, 23

Columbia Broadcasting System

v. Democratic Nat'l Comm.,

PPO er ee x

Consolidated Edison v. Public

Service Comm'n,

GOV Wis SUE oc tne csencbucnkenssnceue 22

Cornelius v. NAACP Legal Defense

& Educational Fund,

473 U.S. 788 (1985) ............ 7, 12, 16, 17, 18, 21

DeYoung v. Patten,

898 F.2d 628 (8th Cir. 1990) ................... 4

Estiverne v. Louisiana State Bar Ass'n,

863 F.2d 371 (Sth Cir. 1989) ................ 14, 17

FCC v. Pacifica Foundation,

SS CR. Fe <6 050 bo sR. CUR 11

Federal Communications Comm'n vy.

League of Women Voters,

TTT ee ee 1]

Keyishian v. Board of Regents,

BED Wis SEED onic ecb cle cde ce dit mee: 9

Lamb's Chapel v. Center Moriches

Union Free School District,

SP i rN 11, 22

Lamont v. Postmaster General.

ae Ce i a 4

Lebron v. National Railroad

Passenger Corp.,

313 US. _, 115 $.Cx. 961 (1995) ...........05.. 9

Lebron v. National Railroad

Passenger Corp.,

69 F.3d 650 (2d Cir. 1995),

cert. denied, 116 S.Ct. 2537 (1996)............... 16

Madison School District v. Wisconsin

Employment Relations Comm'n,

Ey ee 17

McGlynn v. New Jersey Public

Broadcasting Auth.,

88 N.J. 112, 439 A.2d 54 (1981) ................ 20

McIntyre v. Ohio Elections Comm'n,

514 U.S. _., 115 S.Ct. 1511 (1995) ........... 21, 22

Mills v. Alabama,

es... duets wey i 21

Monitor Patriot Co. v. Roy,

i ee a uu kd, 6

Muir v. Alabama Educational

Television Comm'n,

688 F.2d 1033 (Sth Cir. 1982),

cert. denied, 460 U.S. 1023 (1983) ....... 9, 10, 12, 13

Multimedia Publications v. Greenville

-Spartanburg Airport,

NE. 24, 25

New York Times Co. v. Sullivan,

Ne wkenn nd 26

Perot v. Federal Election Comm'n.

97 F.3d 553 (D.C.Cir. 1996),

cert. denied, ___U.S. __,

ES 12

Perry Educational Ass'n v. Perry

Local Educators Ass'n,

TT a 17, 21

Page

Perry v. Sindermann,

CPD ohoces ctccaccce uses 9

Pickering v. Board of Education,

i SS ae ee 9

Rankin v. McPherson,

Cae Ws PE 6 0.6 Lites 0 dc STS LL 9

Regan v. Taxation With Representation,

Cae a Sn hb ck week Li cg EU, 22

Rosenberger v. Rector & Visitors

of the University of Virginia,

515 U.S. _, 115 S.Ct. 2510 (1995) ...... 5, 17, 21, 22

Serra v. General Services Admin..

O67 F.26 1005 GC. 1908)................... 14

Speiser v. Randall,

A ll ee ee ee Cop 23

Sweezy v. New Hampshire,

Se We SEED « Wears). s twalubais pe 9, 20

Texas v. Johnson,

ee ek dccchetcuce ven 22

Travis v. Owego-Apalachin School Dist..

va? Paw Gee Ge Ge. FOP) ..........-s.. 17

Widmar v. Vincent,

POPES dv cetccvecscdus. 5,17

Statutes and Regulations

Ark.Stat.Ann. §6-3-101, ef seq.

on ne EEL TEST PTT CTERTT 2

Eis oo Ce eee ea, 2

a aE ge at en a a 2

ee ne 2

I ee ee ae ee tet Seven 2

TE ES ea 1, 2, 11, 24

Other Authorities

Canby, William C.., Jr.,

"The First Amendment and the

State as Editor:

for Public Broadcasting,”

i 13

Cole, David, "Beyond Unc astitutional

Conditions: Charting Spheres of Neu-

trality in Government-Funded Speech,"

G7 PWD Bev. GTS (ISTE) ww cc cee 13

Heins, Marjorie, "Viewpoint

Tisesienbetion ©

24 Hastings Con.L.Q. 99 (1996) .............. 14, 23

Mark G. Yudof,

WHEN GOVERNMENT SPEAKS (1983) ........... 14, 19

Rosenstone, Steven J.;

Behr, Roy L. & Lazarus, Edward,

THIRD PARTIES IN AMERICA (2d ed. 1984)... .... 19, 20

Shiffrin, Steven, "Government Speech,"

27 UCLA. Lew. SES (ISSR)... ww ccc 14

vii

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonpartisan organization with nearly 300,000

members dedicated to defending the constitutional rights and

liberties enshrined in the Bill of Rights. The ACLU of Ar-

kansas is one of its statewide affiliates.

This case implicates two principles that have been cen-

tral to the ACLU since its founding in 1920: the general

free speech right of journalists to make editorial decisions,

and the obligation of government not to discriminate against

nonmainstream political candidates. Amici submit this brief

because we believe that the proper resolution of this case

must take into account both of these fundamental constitu-

tional principles.

STATEMENT OF THE CASE

Ralph Forbes filed suit in October 1992 against the Ar-

kansas Educational Television Commission (AETC), the Ar-

kansas Educational Television Network (AETN), and other

groups, challenging on First Amendment grounds their deci-

sion to exclude him from a televised debate among candi-

dates for Congress in the Third District of Arkansas.’

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3.

Pursuant to Rule 37.6, counsel for amici state that no counsel for a

party authored this brief in whole or in part and no person, other than

amici, its members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

? Forbes 2iso sued the members and officers of AETN, and then-

Governor Clinton. In addition to his First Amendment claims, he al-

leged violation of the political campaign equal-access law, 47 U.S.C.

§315(a), an issue that the courts did not address since they found that

(continued...)

Forbes had submitted sufficient signatures to qualify for the

ballot, and was the only ballot-qualified candidate in the

race other than the major party Republican and Democratic

nominees.

AETN is a state-owned and operated television network

created by Arkansas law, Ark.Stat.Ann. §6-3-101, ef segq.,

for the purpose of developing and enhancing public educa-

tion, and making its benefits available to the people of Ar-

kansas. See Ark.Stat.Ann. §6-3-105(a); note to §6-3-101.

The network is governed by the AETC, which has the statu-

tory power to “control[] and supervis[e] the use of channels

reserved by the Federal Communications Commission to Ar-

kansas for noncommercial educational use," to “designate

the location of stations to utilize such channels," and to

“make rules and regulations governing the operation of these

stations and the programs televised over these channels."

§6-3-105(c), (d). All of the commissioners of the AETC are

appointed by the governor with the advice and consent of

the Senate for terms of eight years. §6-3-102(b)(1).

AETN’s Programming Policy recognizes the network’s sta-

tus as a State agency that must, for example, “observe[] the

constitutional principle of separation of church and state."

Appendix J to Petition for Writ of Certiorari at 99a

(Cert.App.).

Although a state agency, AETN is not simply a mouth-

piece for the ideas and viewpoints of the government of Ar-

* (..continued)

§315(a) did not create a private right of action. See Forbes v. Arkansas

Educational Television Network Found., 22 F.3d 1423 (8th Cir. 1994),

cert. denied, 115 S.Ct. 500 (petition of AETC); 115 S.Ct. 1962 (1995)

(petition of Forbes). In November 1992, he amended his complaint to

challenge the decision of two private networks not to air one of his anti-

abortion advertisements except during “saf@ harbor” hours. 22 F.3d at

1427. Only the First Amendment issue is now before this Court.

kansas. According to its Programming Policy, "AETN

maintains public trust in its editorial integrity by shielding

or influence from program funders or other sources." Cert.

App. at 98a. It subscribes to the “Statement of Principles of

Editorial Integrity in Public Broadcasting,” id. at 99a, devel-

oped at the Wingspread Conference on Editorial Integrity in

1985, which emphasizes the importance of protecting all

public broadcasters from “extraneous interference and con-

trol," as well as fostering “journalistic objectivity" and "a

free and independent decision-making process which is ulti-

mately accountable to the needs and interests of all citizens."

Id. at 68a, 69a.

AETN’s Programming Policy also stresses the net-

work’s obligation to "further[] the goals of a democratic so-

ciety by enhancing public access to the full range of ideas

and viewpoints required for citizens/voters to make informed

judgments about the issues of our time." /d. at 100a. It

adds: “In matters of public importance that may be contro-

\versial, special attention is invested to assure fairness in

treatment of different points of view." /d.

Nevertheless, in September 1992, AETN denied Forbes’

request to be included in the Third District candidates’ de-

bate which it had scheduled for October 22nd. Its reason,

according to its executive director, was that AETN had

"made a bona fide journalistic judgement that our viewers

would be best served by limiting the debate to elected nom-

inees of the two major parties." Jd. at 103a. AETN then

promoted the debate with an advertisement that said:

Do you know your candidate? Get better ac-

Democrat John Van Winkle of Fort Smith and

Republican Tim Hutchinson of Bentonville de-

bate the issues as they campaign for the Third

Congressional District seat, live tonight at 7:00,

AETN, where learning never ends.

Joint Appendix (J.A.) at 135.

Forbes then filed suit and moved for a preliminary in-

junction ordering his inclusion in the October 22nd debate.

The district court denied his motion, relying on the then-

governing Eighth Circuit precedent of DeYoung v. Patten,

898 F.2d 628 (8th Cir. 1990), which had rejected a political

candidate’s First Amendment claim of access to a televised

campaign debate sponsored by a government broadcaster.

See Forbes v. Arkansas Educational Television Network

Found. (Forbes I), 22 F.3d 1423, 1428 (8th Cir. 1994), cert.

denied, 115 S.Ct. 500 (petition of AETC); 115 S.Ct. 1962

(1995)(petition of Forbes). The district court subsequently

dismissed Forbes’ complaint for failure to state a claim. See

Forbes v. Arkansas Educational Television Comm'n (Forbes

IT), 93 F.3d 497, 500 (8th Cir. 1996).

The Eighth Circuit reinstated the First Amendment

claim on appeal, overruling DeYoung in part. Specifically,

the Eighth Circuit held that, if the facts showed that AETN

had created a “limited public forum" for the televised de-

bate, “then Forbes would have a First Amendment right to

participate" and “could be excluded only if AETN had a

sufficient government interest." Forbes J], 22 F.3d at 1429.

The court further held that "if AETN failed to include

Forbes because of objections to his viewpoint, it has vio-

lated his First Amendment rights," even if the state-

sponsored debate were a "nonpublic forum." /d. The case

was remanded for factfinding on these two issues.

On remand, the case was tried to a jury, which found in

response to special questions that AETN’s decision to ex-

clude Forbes was neither “the result of any political pressure

coming from outside the professional staff of AETN,” nor a

product of “disagreement with his opinions.” Forbes I/, 93

F.3d at 501. Based on these answers, the district court

ruled as a matter of law that the debate was a nonpublic

forum, it entered judgment for AETN. /d.

The Eighth Circuit again reversed. Although approving

the district court’s handling of the viewpoint discrimination

issue, it took issue with the trial judge’s determination that

AETN had not created a limited public forum when it spon-

sored the televised debate. Citing Rosenberger v. Rector &

Visitors of the University of Virginia, 515 U.S. __, 115 S.Ct.

2510 (1995), and Widmar v. Vincent, 454 U.S. 263 (1981),

the court of appeals found that the debate was a limited

public forum because AETN, “by staging the debate, opened

its facilities to a particular group -- candidates running for

the Third District Congressional seat." Forbes I], 93 F.3d at

504.°> Emphasizing that “we are dealing here with political

speech by legally qualified candidates, a subject matter at

the very core of the First Amendment," id., the Eighth Cir-

cuit then held that the exclusion of Forbes was unconstitu-

tional.

SUMMARY OF ARGUMENT

This case presents the narrow question whether a

government-owned and operated broadcast network’s ordi-

narily broad discretion to make editorial decisions must give

way to First Amendment interests when the network spon-

in aa atl ball lified tid

for political office, but excludes one such candidate on the

ground that network executives do not consider his candida-

> Because the historical facts were not in dispute, the Eighth Circuit

treated the limited public forum question as one of constitutional fact

appropriate for de novo review under Bose Corp. v. Consumers Union,

466 U.S. 485 (1984). See Forbes Ii, 93 F 3d at 502-03.

caes ts Gitine dan thon cea,

most urgent application” to speech by candidates in a politi-

cal campaign. Buckley v. Valeo, 424 U.S. 1, 15 (1974)

(quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272

(1971)). Because the inevitable consequence of a decision

by government broadcasters to exclude a ballot-qualified

candidate will be to diminish that candidate’s visibility, de-

prive the public of an opportunity to hear his views, "skew

the debate" toward mainstream, conventional ideas, and ac-

cordingly distort the democratic process, the Court should

recognize a narrow, First Amendment-based exception in

these circumstances to the general proposition that govern-

ment broadcasters have editorial discretion to determine the

nature and viewpoint of their programming.

The Eighth Circuit thus correctly ruled that AETN’s

sponsorship of the candidates’ debate created a limited pub-

lic forum. Unlike most programming on a government-

owned television station, which is simply not a forum for

speech by the general public, a televised debate for a partic-

ular political office is by its nature a forum created for po-

litical advocacy by a particular class of speakers -- here,

ally opened this program to a limited class of ballot-

qualified candidates, and the program was completely "com-

patib[le} with [their] expressive activity." Cornelius v.

NAACP Legal Defense & Educational Fund, 473 U.S. 788,

802 (1985).

The Eighth Circuit erred, however, in concluding that

the exclusion of Forbes was not viewpoint-based. Although

the jury found that AETN did not reject Forbes because of

hostility to his views or outside political pressure, the net-

work’s very conclusion that he was not "viable" and that the

public was “best served" by not being exposed to his ideas

was fundamentally viewpoint-discriminatory because it rep-

resented a judgment that nonmainstream or controversial

opinions are not worth hearing. Thus, regardless of the na-

ture of the forum created by a government-sponsored candi-

dates’ debate, AETN’s exclusion of Forbes on the basis of

perceived nonviability or unpopularity violated the strong

First Amendment command of viewpoint neutrality

The rejection of Forbes was also, as the Eighth Circuit

ruled, fundamentally unreasonable “in light of the purpose

served by the forum." Cornelius, 473 U.S. at 806. It vests

too much discretion in state employees -- even when they

are journalists -- to permit them to exclude a ballot-qualified

candidate from a televised debate based on their perception

that hearing the candidate’s views will not be in the best in-

terests of the public. Indeed, such an exclusion contravenes

AETN’s own educational purpose because it deprives the

public of political information and ideas in the important

context of an electoral campaign.

Recognizing the existence of a limited public forum

here, and acknowledging that the exclusion of Forbes was

both unreasonable and viewpoint-based, will not interfere

with the otherwise broad discretion of government broad-

casters to determine the nature and quality of their program-

creation of a forum and the context of an election. When

these facts are not present, a state-owned broadcasting sta-

tion resembles in many respects a public library, a public

museum, or even a public university -- entities owned and

financed by government, yet vesting substantial editorial dis-

cretion in the professional employees who decide what liter-

ature, art, or educational materials will be communicated.

Under other circumstances, therefore, the professional deci-

sions of these employees are themselves entitled to First

Amendment protection -- as, for example, when a state-

employed university professor resists forced loyalty oaths or

other infringements of academic freedom. However, as the

present facts demonstrate, these employees are also state

actors, and in some cases can violate the First Amendment

rights of others.

ARGUMENT

I. GOVERNMENT BROADCASTERS ARE GEN-

ERALLY ENTITLED TO BROAD PROGRAM-

MING DISCRETION AND GOVERNMENT

BROADCAST NETWORKS SHOULD NOT BE

REGARDED, FOR MOST PURPOSES, AS A

FORUM FOR SPEECH BY MEMBERS OF

THE PUBLIC

The question of whether and how the First Amendment

applies to a government agency that operates a broadcast

network is a complex one. On the one hand, it is clear that

the First Amendment "protects the press from governmental

interference; it confers no analogous protection on the Gov-

ernment.” Columbia Broadcasting System v. Democratic

Nat'l Comm., 412 U.S. 94, 139 (1973)(emphasis in original)

(Stewart, J., concurring). At the same time, the care that

political constraints. See Board of Education, Island

Union v. Pico, 457 U.S. 853

(1982); Lamont v. Postmaster General, 381 U.S. 301

(1965). As AETN’s Programming Policy makes clear, the

network asserts a high degree of editorial independence and

does not view itself as simply a propaganda arm of the state.

A fortiori, this is true of the journalists employed by

AETN.*

Accordingly, amici agree with the observation of the

plurality in Muir v. Alabama Educational Television

ee Oe om ee ee

Acsntnay AGM. Ben e.g., Rankin v. McPherson, 483 U.S. 378, 383-

phi | Perry v. Sindermann, 408 U.S. 593, 597 (1972), Pickering v.

Board of Education, 391 US. 563 (1968). Moreover, government-

heightened constitutional protection. E.g.. Sweezy v. New Hampshire,

354 U.S. 234, 250-51 (1957), id. at 262-63 (Frankfurter, J., concurring);

Keyishian v. Board of Regents, 385 U.S. 589, 602 (1967).

This does not mean, however, that a government broadcast agency it-

self has First Amendment rights, as AETN argues. Petitioner's Brief at

Amendment Cf Lebron v. National Railroad Passenger Corp.,

Comm'n, 688 F.2d 1033, 1041 (Sth Cir. 1982)en banc),

cert. denied, 460 U.S. 1023 (1983)(rejecting a First Amend-

ment challenge to the cancellation of a controversial pro-

gram), that government broadcasters generally should have

the same ability “to make free programming decisions as

their private counterparts." As Judge Rubin explained in a

separate concurring opinion (joined by Judges Politz, Ran-

dall and Williams):

The function of a state agency operating an in-

formational medium is significant in determi-

ning first amendment restrictions on its actions.

State agencies publish alumni bulletins, news-

letters devoted to better farming practices, and

law reviews; they operate or subsidize art mu-

seums and theater companies and student news-

papers ... . The first amendment does not dic-

tate that what will be said or performed or

published or broadcast in these activities will

be entirely content-neutral. In those activities

that, like television broadcasting to the general

public, depend in part on audience interest, ap-

praisal of audience interest and suitability for

publication or broadcast inevitably involves

judgment of content.

Id. at 1050.

Thus, even though a government agency, AETN retains

editorial discretion in most circumstances to design pro-

* The difficulty of defining exactly how AETN fits in the broad and di-

verse category of government speech is exemplified by the conflicting

positions taken by AETN itself (Pet.Br. at 44, arguing that AETN is ac-

tually adversarial to the state), and the amici States of California, ef ai.

(arguing that government is always the speaker where it owns and oper-

ates the broadcast entity).

ers are state actors, with constitutional obligations of their own. Second,

private broadcasters have full First Amendment rights, whe:eas any First

Amendment interest in government broadcasting would inhere in its em-

ployees, not in the agency itself (see note 4, supra).

AETN and some of the amici attempt to obscure any distinction be-

tween the private and the government-operated press by broadly citing

Federal Communications Comm'n v. League of Women Voters, 468 US.

364 (1984). FCC v. League, however, involved the First Amendment

rights of private noncommertial broadcasters. /d. at 393-95. The pres-

ent case, by contrast, concerns only the obligations of government agen-

cies holding broadcast licenses in those limited situations when they

open up a forum for qualified electoral candidates. Thus, the fear of the

amici Association of American Public Television Stations (AAPTS) that

affirmance of the Eighth Circuit's judgment would have dire effects on

private broadcasters is misplaced.

Likewise, the Federal Corimunication Commission’s concern that an

affirmance here would undermine the overall editorial independence that

it expects from its licensees is misplaced. Moreover, it is oddly il-

gramming content, and not only with respect to campaign coverage.

E.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978), FCC Brief at 3-

4 (broadcasting must be responsible to “identified needs of the commu-

nity”); id. at 6 (under 47 U.S.C. §315(a) as currently interpreted by the

Commission, FCC decides whether broadcaster qualifies for exemption

from candidate access requirement based on its assessment of "reasona-

bleness” and “good faith” of broadcaster’s decision).

Chapel v. Center Moriches Union Free School District, 508

U.S. 384 (1993). Even invited guests who appear on a pro-

gram generally do so within a format over which the broad-

caster retains editorial control.’

But because AETN is a government agency, it is also

bound by the First Amendment, and once it exercises its dis-

basis.

there are not many programs other than a campaign debate that could

easily be classified as a limited public forum. Indeed, it is difficult to

gram}" would be so clearly “compatib[le] with expressive activity” by

(D.C.Cir. 1996), cert. denied, US. __, 65 U.S.L.W. 3753 (1997).

constitutional); id. at 1060 (Reavley, J., dissenting)(govern-

ment broadcaster has editorial discretion, but may not make

decisions based upon "viewpoint alone"). Even the court in

Chandler v. Georgia Public Telecommunications Comm'n,

917 F.2d 486, 489 (11th Cir. 1990), cert. denied, 112 S.Ct.

71 (1991), although denying the First Amendment claims of

bates, noted that "the use of state instrumentalities to sup-

press unwanted expressions in the marketplace of ideas

would authorize judicial intervention to vindicate the First

Amendment."®

This Court has also recognized that state actors have

constitutional obligations to the public when they publish,

broadcast, distribute literature, or otherwise engage in the

business of communicating ideas. In Board of Education v.

Pico, 457 U.S. at 870-71, a plurality held that the First

Amendment limits the power of local school boards to re-

move books for ideological reasons." Other courts have

university president . . . in the case of a state university press.” William

C. Canby, Jr., "The First Amendment and the State as Editor: Implica-

tions for Public Broadcasting,” 52 Tex.L.Rev. 1123, 1164 (1974). Cf

David Cole, “Beyond Unconstitutional Conditions: Charting Spheres of

Neutrality in Government-Funded Speech,” 67 N.Y.U.L.Rev. 675 (1992)

(proposing “spheres of neutrality” where government funds universities

and other traditional fora for free expression).

° A concurrence by Justice White, who provided the fifth vote in Pico,

implicitly assumed that some reasons for library book removal would

violate the First Amendment, 457 U.S. at 883, as, indeed, three of the

dissenters stated explicitly as well. /d. at 907 (Rehnquist, Powell, and

Burger, JJ., dissenting).

come to like conclusions as they have struggled to balance

the competing claims of the public and of government deci-

sionmakers in dealing with government-disseminated

speech.'' E.g., Serra v. General Services Admin., 847 F.2d

1045, 1048-49 (2d Cir. 1988)(citing Pico\(even with respect

to government-owned artwork, "there are conceivably situa-

tions in which the Government’s exercise of its discretion

... could violate the First Amendment rights of the public

... [I]t is possible that the Government’s broad discretion

to dispose of its property could be exercised in an impermis-

sibly repressive partisan or political manner"); Estiverne v.

Louisiana State Bar Ass'n, 863 F.2d 371, 381-82 (Sth Cir.

1989)(even though state-owned bar journal has editorial in-

dependence, it is nevertheless bound by First Amendment,

so that decisions must be reasonable and viewpoint-neutral);

Bryant v. Secretary of the Army, 862 F.Supp. 574 (D.D.C.

1994)(rule banning writings "not in consonance with policies

of the Department of the Army" in “personal commenfary"

section of military publication is unconstitutionally

viewpoint-based); Aldrich v. Knab, 858 F.Supp. 1480, 1490-

94 (W.D.Wash. 1994)(state university-owned radio station

had opened itself as nonpublic forum to speech by volun-

teers and thus could make general editorial decisions but not

discriminate based on speakers’ viewpoints).

As in Pico, Serra, Estiverne, Bryant, and Aldrich, so

here, the problem is to reconcile the government-employed

speakers’ discretion with the public’s First Amendment right

SPEAKS (1983); Steven Shiffrin, "Government Speech,” 27 U.C.LA.

L.Rev. 565 (1980); Marjorie Heins, "Viewpoint Discrimination,” 24

Hastings Con.L.Q. 99, 150-57 (1996).

to receive relevant information about a political campaign,

and the candidate’s First Amendment right to avoid discrim-

inatory exclusion from a government-sponsored debate.

Given that the First Amendment has "its fullest and most ur-

gent application" to political campaign speech, Buckley vy

Valeo, 424 U.S. at 14-15, the balance in this case must tilt

in favor of Forbes and the public. As Judge Clark noted in

Chandler,

For the state to set up ... a debate and ex-

clude certain candidates not only puts its stamp

of approval on the favored candidates, it also

“curtail[s] access to ideas" by preventing the

ideas and information that would be produced

through the debating candidates’ interaction

from coming to light.

917 F.2d at 493-94 (Clark, J., dissenting). '

os Judge Clark's elaboration in this passage of the difference between

campaign debates and other government broadcasting is instructive:

[T]he decision to show or not to show a particular program or

documentary and the ideas contained therein is very unlike the

decision to exclude political parties from a debate. The posi-

tions put forward in a particular television program may find

equally effective expression through a wide variety of media.

I would not contend, therefore, that when the state shows a

documentary it must include all viewpoints in that documenta-

ry. But an idea is not a candidate, and freedom of speech has

greater meaning in the election arena. There is only one way

for candidates themselves to argue their positions with each

other: through the medium of a debate. A debate serves to

inform the public far more effectively than any candidate's

lone appearance could, by creating a synergism between the

candidates’ immediately conflicting positions.

917 F.2d at 493 (Clark, J., dissenting).

ll WHEN A GOVERNMENT BROADCASTER

SPONSORS AND AIRS A POLITICAL CAM-

PAIGN DEBATE, IT CREATES A LIMITED

PUBLIC FORUM FOR SPEECH BY BALLOT-

QUALIFIED CANDIDATES

In this case, AETN’s editorial dif€retion was limited by

its creation of a limited public forum for speech by candi-

dates for the Third Congressional District." That is, the

televised debate was not like most AETN programs, in

which the government broadcasters frame the subject matter

and decide what viewpoints will be heard. Instead, for pur-

poses of the debate AETN essentially turned the microphone

over to the candidates. As Judge Clark perceived in Chand-

ler, so here, AETN “already decided to give over its air-

waves to political contenders for [elected] office{]." 917

F.2d at 493 (Clark, J., dissenting).

This Court ruled in Cornelius that two factors guide the

determination whether a state agency has opened a limited

forum for citizens’ speech: first, the agency’s intent “to

designate a place not traditionally open to assembly and de-

bate as a public forum" and, second, "the nature of the prop-

erty and its compatibility with expressive activity." 473

U.S. at 802. AETN’s candidate debate satisfies both of

these requirements.

" The forum at issue here is the debate, not AETN as a whole. See,

e.g., Cornelius, 473 U.S. at 801 ("in defining the forum we have focused

on the access sought by the speaker”); Lebrc« v. National Railroad Pas-

senger Corp.. 69 F.3d 650, 655-56 (2d Cir. 1995), cert. denied, 116

S.Ct. 2537 (1996)(same). Thus, the majority in Chandler erred when it

assumed (without discussion) that forum analysis is an all-or-nothing

proposition in which either the entire network is a “pure marketplace of

ideas,” or the state has total discretion as to a// programming decisions.

917 F.2d at 488. Similarly, AETN and its amici err to the extent that

they focus on the government network's programming as a whole rather

than the one debate that is at issue.

;

qualified candidates a forum (a TV program) that is not

generally available for members of the public. The fact that

this was a forum so limited that only three people qualified

does not change its nature,* for Forbes was certainly in the

“class of speakers" for which the forum was designed. As

the Second Circuit explained in Travis v. Owego-Apalachin

School Dist., 927 F.2d 688, 692 (2d Cir. 1991), "in a

limited public forum, government is free to impose a

blanket exclusion on certain types of speech, but once it al-

lows expressive activities of a certain genre, it may not se-

lectively deny access for other activities of that genre" (em-

phasis added). See also Estiverne, 863 F.2d at 378 n.10 (in

limited public forum, medium "must at least be designed

provide a vehicle for expressive activity by the class of

speakers claiming access"). Thus, the Eighth Circuit proper-

ly ruled that AETN could not, "simply by its own ipse dixit,

define a class of speakers so as to exclude a person who

would naturally be expected to be a member of the class on

no basis other than party affiliation." Forbes IJ, 93 F.3d at

504. Or, as this Court reiterated in Rosenberger, 115 S.Ct.

at 2517, "[o}]nce it has opened a limited forum, . . . the State

must respect the lawful boundaries it has itself set.”'°

‘* Designated public fora usually are limited in their scope. As the

Court explained in Cornelius, 473 U.S. at 803, the designated forum rec-

ognized in Widmar v. Vincent, 454 U.S. 263, was limited to meeting

places for student expression; the forum in Madison School District v.

Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976), was

limited to topics on the local school board meeting agenda. See also

Perry Educational Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37,

45 n.7 (1983\"[a] public forum may be created for a limited purpose

such as use by certain groups . . . or for the discussion of certain sub-

jects"\citing Widmar and Madison).

'* Indeed, if the law were otherwise, this Court’s distinction between

(continued...)

is-

sues ...." (J.A. 135) -~ while falsely implying that the

ble choices.

AETN and its amici, making a great issue of Forbes’

limited support and shoestring approach to campaigning, ar-

gue essentially that AETN can redefine the forum to include

only “serious” or “viable” candidates." But the State of

Arkansas had already determined Forbes’ viability by certi-

cannot for any reason, whether viewpoint-based or not, exclude speakers

who are otherwise within the class or genre for which the forum was

designated. If AETN may constitutionally exclude Forbes, who as a

ballot-qualified candidate for Congress was clearly within the class or

genre of speakers encompassed by the candidates’ debate, then the limit-

ed public forum category ceases to have any meaning separate from the

nonpublic forum.

'* Forbes had in fact won 13.8% of the vote in the Republican primary

runoff for Lieutenant Governor in 1990 (J.A. 145).

i public would be “best

served” by hearing only the views of the major parties.

stream," Anderson v. Celebreeze, 460 U.S. 780, 794 (1983);

and that "[ajll political ideas cannot and should not be chan-

ultimately accepted." Sweezy v. New Hampshire, 354 U.S.

at 250-51.

This process of challenging the comfortable views of

front questions that they might otherwise ignore is critical to

the process of peaceful social change. Third parties have a

discourse, and ultimately public policy, by raising issues and

options that the two major parties have ignored." Rosen-

stone, ef al., THIRD PARTIES IN AMERICA at 8. History thus

belies any notion that a ballot-qualified candidate's relative

lack of immediate electoral “viability” makes his participa-

tion in a government-sponsored debate "incompatible" with

the nature of the forum."

“It also cannot be a sufficient argument against finding the debate to be

a limited public forum that accommodating independent candidates

might prove logistically unwieldy. For example, the numbers cited in

the AAPTS Brief at 14-15 regarding presidential and other candidates

appearing on ballots in recent years are misleading to the extent they

suggest that a flood of idiosyncratic or unimportant candidates are

crowding ballots throughout the land. Twenty-three presidential candi-

dates appearing on the ballot in at least one state hardly amounts to 23

aspirants seeking to participate in debates in every state. In the present

case, there were only three ballot-qualified candidates for the Third Dis-

trict seat. In the rare situations where an unmanageable number of can-

didates have qualified for the ballot, the government broadcaster can

that cacophony does not result. See, e.g. McGlynn v. New Jersey Public

Broadcasting Auth., 88 NJ. 112, 129, 439 A.2d 54, 62 (1981)(statutory

the manner in which candidates will debate if the number is unwieldy).

minor party ones are both speculative and insufficient to establish a

deed, this “major candidate veto” argument is akin to the “heckler’s

veto” argument that has rarely been considered a legitimate basis for re-

speech is at the heart of the First Amendment. See. e.g,

Buckley v. Valeo, 424 U.S. at 14-15; Mills v. Alabama, 384

U.S. 214, 218 (1966)("a major purpose” of First Amend-

ment "was to protect the free discussion of governmental af-

nation." McIntyre v. Ohio Elections Comm'n, 514 oe

— 115 S.Ct. 1511, 1519 (1995). AETN’s debate program

was a limited public forum most fundamentally because at

the very heart of our democracy is the principle that all

ballot-qualified candidates for political office should be

heard, and therefore that a government broadcaster cannot

close a campaign debate to those aspirants whom it deems

unsuitable, or whose ideas it thinks most voters will not take

seriously.

ffl. REGARDLESS OF THE NATURE OF THE

FORUM CREATED BY AETN, ITS EXCLU-

SION OF FORBES WAS UNCONSTITU-

TIONALLY VIEWPOINT-BASED AND NOT

REASONABLY RELATED TO THE

PURPOSE OF THE DEBATE

Court ultimately characterizes the debate for purposes of

forum analysis.

A. Deciding That a Ballot-Qualified Candi-

date Is Not Viable Or That The Public

Will Be “Best Served" By Excluding

Him From A Debate Is Viewpoint Dis-

crimination

This Court in Rosenberger held that a public universi-

ty’s denial of student activity funding to a publication that

promoted a “religious perspective” was unconstitutionally

viewpoint-based. 115 S.Ct. at 2518. The Court rejected a

narrowly “bipolar” definition of viewpoint discrimination in

favor of a more realistic understanding that public debate is

by nature “complex and multi-faceted," and that discrimina-

tion against whole categories of ideas can "skew" that debate

"in multiple ways.” Jd. See also Lamb’s Chapel v. Center

Moriches, 508 U.S. at 390-91.

The Rosenberger ruling is consistent with numerous

speakers because they are deemed “dangerous,” unpopular,

or controversial. See, e.g., McIntyre v. Ohio Elections

Comm'n, 115 S.Ct. at 1519 (controversial political view-

sclats soe “the assunte af Pom Aina

Texas v. Johnson, 491 U.S. 397, 414 (1989)(government

may not prohibit expression of ideas simply because they

are disagreeable); Consolidated Edison v. Public Service

Comm'n, 447 U.S. 530, 537-38 (1980)(rejecting argument

that government can constitutionally restrict both sides on

"contrcversial issues of public policy"; "[t]o allow a govern-

ment the choice of permissible subjects for public debate

would be to allow that government control over the search

for political truth"); Regan v. Taxation With Representation,

461 U.S. 540, 548 (1983)(government may not discriminate

in subsidy or benefit programs “in such a way as to “[aim]

at the suppression of dangerous ideas’’)(quoting Camma-

rano v. United States, 358 U.S. 498, 513 (1959), and

Speiser v. Randall, 357 U.S. 513, 519 (1958))."”

The Eighth Circuit thus understood the concept of view-

point discrimination too narrowly. Viewpoint discrimination

dates based on judgments about the best interests of the vot-

ers amounts to viewpoint discrimination because it derives

from a belief that “the viewpoints of the Libertarians [are]

less valuable than those of the Democrats and Republicans."

917 F.2d at 491-92 (dissenting opinion). So here, as the

Brief Amici Curiae of the States of California, ef al, in fact

acknowledges, excluding Forbes “convey[ed] the message”

ideas, and devaluing the uninhibited and wide-ranging politi-

cal debate that the First Amendment contemplates.

B. Excluding Forbes was Unreasonable in

Light of the “orum’s Purpose

AETN’s decision to exclude Forbes based on its judg-

ination, 24 Hastings Con.L.Q. 99.

unreasonable in light of the purpose of a televised debate.

As noted above, judgments about a candidate’s viability or

ecies. Moreover, minor party candidates raise issues that the

make informed judgments about the issues of our time."

Cert.App. 100a (emphasis added). The network violated

this provision of its own Programming Policy when it took

it upon itself to decide that the voters were “best served’ by

not hearing the views of one of the contest’s ballot-qualified

candidates. Judged by its own standards, therefore, AETN’s

The Court of Appeals for the Fourth Circuit observed in

Multimedia Publications v. Greenville-Spartanburg Airport,

991 F.2d 154, 159 (4th eee Hendipder gear

of speech restrictions in a i -

nized with some care because “protected First Amendment

activity” is at stake. The court accordingly struck down a

local girport’s ban on newsracks because none of the reasons

® Nor does the FCC’s current interpretation of 47 U.S.C. §315(a), ex-

empting broadcaster-sponsored campaign debates from the statute s ac-

cess requirements, establish that AETN’s decision was reasonable for

First Amendment purposes. As the AAPTS Brief notes, at 11-12, the

FCC’s construction has changed at least twice since §315(a) was

enacted.

asserted to support it was persuasive. AETN’s paternalistic

judgment that it knew what was “best” for the voters of the

Third District is equally unpersuasive, and was as unreason-

able in relation to the purpose of a campaign debate as was

the Greenville-Spartanburg Airport’s newsrack ban in Multi-

media or, for that matter, the Los Angeles Airport’s decision

to prohibit all First Amendment activity in Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

The court of appeals in this case accurately summarized

the unreasonableness of AETN’s action:

Forbes II, 93 F.3d at 504-05.

AETN and its amici make exaggerated claims that the

sky will fall on all editorial discretion for all noncommercial

broadcasters if the Eighth Circuit’s judgment is affirmed.

But invalidating AETN’s decision to exclude Forbes from

its televised campaign debate will not interfere with the net-

work’s journalistic control over the great bulk of its pro-

gramming, will have no effect at all on the nongovernmental

press, and represents a constitutionally proper balance be-

tween the editorial needs of government broadcasters and

the First Amendment rights of the public and of nonmain-

stream candidates to an “uninhibited, robust, and wide-open"

exchange of political views in a government-sponsored

forum. New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964).

CONCLUSION

For the reasons stated above, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

Marjorie Hei

(Counsel of Record)

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Dated: June 27, 1997

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.