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

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“ SuPnene Sikes OF THE UNITED Starzs

October Term 1996

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THE ARKANSAS EDUCATIONAL TELEVISION COMMISSION,

Petitioner,

v.

RALPH P. FORBES,

Respondent.

On writ of Certiorari to the

ae eee eee

for the Eighth Circ

Brief of Amicus Curiae, Greens / Green Party

USA

(Filed on consent)

JOHN C. KLOTZ

Counsel of Record

885 THIRD AVENUE, SUITE 2900

NEW YORK, NY 10022

(212) 230-2162

Counsel for Amicus

Greens / Green Party USA

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~ BEST AVAILABLECOPY

TABLE OF CONTENTS

INTERESTS OF AMICUS GREEN PARTY 1

STATEMENT OF THE CASE 2

FACTS OF THE CASE 2

1. ESSENTIAL TO CONSTITUTIONAL GOVERNMENT AND

INHERENT IN THE DEFINITION OF FREEDOM PROTECTED

IN THE CONSTITUTION IS THE RIGHT OF THE PUBLIC TO.

FREE AND FAIR ELECTIONS. 3

2. THE STATE OF ARKANSAS HAVING DETERMINED THAT

RESPONDENT FORBES HAD DEMONSTRATED A SUFFICIENT

MODICUM OF SUPPORT TO MERIT BALLOT ACCESS, OTHER

STATE ACTORS . OR INDIVIDUALS WITH GOVERNMENT

CREATED OR REGULATED POWER . OUGHT NOT BE

ALLOWED TO RENDER THAT DETERMINATION MOOT..........7

3. THE PUBLIC'S RIGHT TO FREE AND FAIR ELECTIONS

REQUIRES THE INCLUSION IN TELEVISED ELECTION

DEBATES OF ALL CANDIDATES WHO HAVE OBTAINED

BALLOT STATUS...... 8

CONCLUSION 15

TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze, 460 U.S. 780; (1983)..... re 7

Anderson v. United States, 417 U.S. 211 (1974). ....cccccccseceeeees 3

Board of Educ. Island Trees Union Free School Dist. No. 26 v.

Plow, S37 US. SSS CIGGAE, cromnsissnrssinsiniesveaieiiaiilipigneiin 5

CBS, Inc. v. F.C. C., 453 U.S. 367 (1981) ..cccccccsssessssereceseeeeees 12

Columbia Broadcasting System, Inc. v. Democratic Nat.

Committee, 412 U.S. 94, 115 (1973)....c.cce000 13

Eu v. San Francisco County Democratic Central Committee,

SED ULB, 2E4 CRBGD). necucsccecrconsccecccsinscniinsiisinediaiasiemaiaaiatiiiss 9

Forbes v. Arkansas Educ. Comm'n, 93 F.3d 497, 504-505 (8th

CO, Feiiiticecdibinstiniiianctsnicnetckibiaiientad 8

Jenness v. Fortson, 403 U.S. 431, 442 (1971)... 7

Noble State Bank v. Haskell, 219 U.S. 104; 110 (1911) biiicheea 14

U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 Sup.

CR: FER COD eersenvccevinsctnnssesesvsstintisiebiahabaiaaianhaiaigiaimaataads 3

United States v. Classic, 313 U.S. 299 (1941) ...cccccrccccecserssereres 3

Whitney v. California, 274 U.S. 357, 375 (1927) ..ccccecessesseseeees 5

Williams v. Rhodes , 393 U.S. 23 (1968). ....cccccsesessessssseeseeeereees 7

STATUTES

Section 135 of the Federal Communications Act,

G7 UB As, BBB BI cicccsecsnsstssrerensintennnsaibinniaaidaiiieiatas 11

Interests of Amicus Greens / Green Party

Greens / Green Party USA (the "Green Party”) was

incorporated in the State of Missouri in 1993 as a national

political party under section 527 of the Internal Revenue Code.

Green Party candidates have been running for local, state and

national office since 1985, and have elected more than a

The Green Party candidate for U.S. Senate in Alaska in 1996,

Ted Whittaker, polled more than 12% of the vote, finishing

ahead of the Democratic nominee. The 1995 Green nominee

for Governor in New Mexico polled more than 10% of the

vote. The Greens won at least ten elections in 1996, including

a majority of the City Council in Arcata, California. The Green

Party is committed to the principles of ecology, social justice,

grassroots democracy, nonviolence, decentralization,

community economics, feminism, respect for diversity,

personal and global responsibility and future focus. '

The Green Party candidate for President in 1996, Ralph

Nader,

fourth

on the ballot in 22 states and received the

total nationwide of votes cast for President with

nearly 700,000. Mr. Nader however, despite repeated public

opinion polls finding that he is the most trusted public

individual in the United States, was excluded from the 1996

Presidential debates. The Green Party motion to intervene in

the Natural Law Party and Perot lawsuits challenging the

exclusion of .third party. candidates to participate in the

Presidential debates was denied.

Other Green Party candidates have routinely been

excluded from televised debates. For instance, Mark Dunlea,

the 1995 Green Party nominee for Rensselaer County

Executive (NY) was not allowed to participate in a debate

organized and televised by the local ABC affiliate, even

though he was an incumbent elected Town Board member and

' Green / Green Party USA paid for this brief to be printed. Rachel

Treichler, Esq and Mark Duniea, Esq. Assisted in preparattion.

had polled 37% of the vote (21,000) in his previous election

for State Assembly as the Green and Democratic nominee. Mr.

Dunlea polled 11% of the vote for County Executive, a total

larger than the margin of difference between the Republican

and Democratic nominee.

Statement of the Case

The issue to be decided by the Court is whether the

decision of the petitioner Arkansas Educational Television

Commission to exclude the petitioner from a television debate

violated not only the free speech rights of petitioner Ralph P.

Forbes, a candidate for Congress, but also the free election

rights of local voters.

Facts of the Case

A publicly owned broadcasting station, Arkansas

Cducational Television Commission ("AETC”"), excluded

Ralph P. Forbes, an independent candidate for Congress in the

Third District of Arkansas, from a television debate in October

of 1992. Even though Mr. Forbes had obtained sufficient

signatures to appear on the ballot for the election, AETC

excluded Mr. Forbes from the debate because AETC

subjectively determined that he did not have sufficient

“political viability”. The trial court determined that the

television debate was a non-public forum, and that Forbes’

First Amendment protections had not been violated by the

decision to exclude him.

The U.S. Court of Appeals for the 8th Circuit reversed the

lower court's determination, finding that the television debate

was a limited-purpose public forum “without reservation” and

ruled that the Arkansas Educational Television Commission

("“AETC”) had violated Forbes’ First Amendment rights when

they excluded him from the debate. Since the 8th Circuit

deemed the television debate a limited-purpose public forum,

the court stated that AETC had to show a compelling

government interest to restrict Forbes’ political speech. They

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failed to do so. The court concluded that “the reason given for

excluding Mr. Forbes (and we accept at face value the

defendants’ proffered reason) was not legally sufficient under

the First Amendment.”

Reasons for affirming the right of Candidate Petitioner to

Participate in Debate

1. Essential to constitutional government and inherent

in the definition of freedom protected in the

constitution is the right of the public to free and fair

elections.

This Court has held that free and fair elections are a

constitutional right. United States v. Classic, 313 U.S. 299,

315 (1941) and Anderson v. United States, 417 U.S. 211

(1974). The right to participate in the electoral process lies at

Go i ee eee in its

decision striking down state attempts to limit the terms of

members of Congress, the Supreme Court had occasion to

comment on the central nature of the right to vote in our

Constitutional system. U. S. Term Limits, Inc. v. Thornton, 514

U.S. 779, 115 Sup. Ct. 1842 (1995).

"*** sovereignty confers on the people the right to

choose freely their representatives to the National

Government. For example, we noted that “Robert

*** endorsed this same fundamental

principle: ‘The people are the best judges who ought

to represent them. To dictate and control them, to tell

them whom they shall not elect, is to abridge their

natural rights.'" 395 U.S., at 541, n. 76, 89 S.Ct, at

1974, n. 76, quoting 2 Elliot's Debates 292-293.

Similarly, we observed that “[bJefore the New York

convention ***, Hamilton emphasized: ‘The true

3

principle of a republic is, that the people should

choose whom they please to govern them.

Representation is imperfect in proportion as the

current of popular favor is checked. This great

source of free government, popular election, should

be perfectly pure, and the most unbounded liberty

allowed.’ " 395 U.S., at 540-541, 89 S.Ct., at 1974,

quoting 2 Elliot's Debates 257. Quoting from the

Statement made in 1807 by the Chairman of the

House Committee on Elections, we noted that

“restrictions upon the people to choose their own

representatives must be limited to those ‘absolutely

necessary for the safety of the society.'" 395 U.S., at

543, 89 S.Ct., at 1975, quoting 17 Annals of Cong.

874 (1807). Thus, in Powell, we agreed with the

sentiment expressed on behalf of Wilkes’ admission

to Parliament: “ ‘That the right of the electors to be

represented by men of their own choice, was so

essential for the preservation of all their other rights,

that it ought to be considered as one of the most

sacred parts of our constitution.'" 395 U.S., at 534,

n. 65, 89 S.Ct., at 1971, n. 65, quoting 16

Parl.Hist.Eng. 589-590 (1769).

"Powell thus establishes two important propositions:

first, that the “relevant historical materials" compel

the conclusion that, at least with respect to

qualifications imposed by Congress, the Framers

intended the qualifications listed in the Constitution

to be exclusive; and second, that that conclusion is

equally compelled by an understanding of the

“fundamental principle of our representative

democracy *** ‘that the people should choose whom

they please to govern them.'" 395 US., at 547, 89

S.Ct., at 1977. (emphasis supplied) 115 Sup. Ct. at

1851

Harte-Hanks Communications, Inc. v. Connaughton, 49 |

U.S. 657 (1989) quotes founding father James Madison:

“Let it be recollected, lastly, that the right of electing

the members of the government constitutes more

particularly the essence of a free and responsible

government. The value and efficacy of this right

depends on the knowledge of the comparative merits

and demerits of the candidates for public trust, and on

the equal freedom, consequently, of examining and

discussing these merits and demerits of the

candidates respectively." 4 J. Elliot, Debates on the

Federal Constitution 575 (1861)."

We deny voters access to the information necessary for an

informed electoral decision at our peril. Said Madison, as

quoted in Board of Educ. Island Trees Union Free School

Dist. No. 26 v. Pico, 457 U.S. 853 (1982):

"A popular Government, without popular

information, or the means of acquiring it, is but a

Prologue to a Farce or a Tragedy; or, perhaps both.

Knowledge will forever govern ignorance: And a

people who mean to be their own Governors, must

arm themselves with the power which knowledge

gives."

Similarly, Mr. Justice Brandeis in Whitney v. California,

274 US. 357, 375 (1927):

"Those who won our independence believed * * *

that public discussion is a political duty; and that this

should be a fundamental principle of the American

government. They recognized the risks to which all

human institutions are subject. But they knew that

order cannot be secured merely through fear of

punishment for its infraction; that it is hazardous to

breeds repression; that repression breeds hate; that

hate menaces stable government, that the path of

safety lies in the opportunity to discuss freely

supposed grievances and proposed remedies; and

that the fitting remedy for evil counsels is good ones.

Believing in the power of reason as applied through

public discussion, they eschewed silence coerced by

law--the argument of force in its worst form.

Recognizing the occasional tyrannies of governing

majorities, they amended the Constitution so that free

speech and assembly should be guaranteed."

(Emphasis supplied)

Although we urge this court to affirm the decision of the

the fundamental legal issue presented by the case before you is

not whether AETC's decision to exclude Forbes from the

debate was legally sufficient under the First Amendment right

to free speech but rather under the constitutional right to a free

election. The issue is whether AETC's actions impinged on the

right of the citizens of the state of Arkansas to a free election

by curtailing their right to receive essential information about

one of the candidates on the ballot.

It submitted that this right to free and fair elections is an

intrinsic part of the .freedom. protected by the Fifth and

Fourteenth Amendments of the Constitution

"Free elections" are right of each citizen of the Republic,

a right needed to make our Constitution work. It is the need for

the for the .truth. which is produced and discerned through the

process of public debate. This deliberative process of debate

that enables the electorate to hear and discern the truth is the

campaign

contributions that are received. It is certainly not something to

be solely determined, even under the guise of "objective

standards" by those who own or control the media or

organize public forums.

2. The State of Arkansas having determined that

respondent Forbes had demonstrated a sufficient modicum

of support to merit ballot access, other state actors — or

individuals with government created or regulated power -

ought not be allowed to render that determination moot.

There is an undeniable interest of states and the federal

government in limiting ballot access to those who have

demonstrated an objectively determined measure of support.

In Jenness v. Fortson, 403 U.S. 431, 442 (1971), the Court

said:

"There is surely an important state interest in

requiring some preliminary showing of a significant

modicum of support before printing the name of a

political organization's candidate on the ballot — the

interest, if no other, in avoiding confusion, deception,

and even frustration of the democratic process at the

general election."

On the other hand, that right to control ballot access is

subject to strictest scrutiny particularly where it discriminates

among competing candidates and parties. Anderson v.

Celebrezze, 460 U.S. 780; (1983); Williams v. Rhodes , 393

U.S. 23 (1968).

"The broadcaster should not have any right to make

a decision as to who can participate in the debate,

regardless of the criteria utilized. AETC's opinion on

such a debatable matter as the political viability of a

candidate for Congress more than two months in

advance of the election can not be a sufficient basis

for narrowing the channels of public discourse. They

are inherently subjective."

As the Court of Appeals itself noted in its decision

upholding Mr. Forbes’ right to participate in the debate:

"The real issue, we think, is the legal sufficiency of the

reason given for the exclusion. If AETC had considered

Mr. Forbes a viable candidate, it would, by its own

account, have included him in the debate. There is nothing

about being a Democrat or a Republican, a priori, that is

relevant here. Rather, AETC's point is that Mr. Forbes, in

the opinion of the network, had no chance to win. It

therefore decided that its viewers should not hear Mr.

Forbes's opinions as part of the debate involving the other

candidates qualified to appear on the ballot.”

"In a sense, the State of Arkansas had already, by statute,

defined political viability. Mr. Forbes had gathered enough

signatures to appear on the ballot. So far as the law was

concemed, he had equal status with the Republican and

Democratic nominees. Whether he was viable was,

ultimately, a judgment to be made by the people of the

Third Congressional District, not by officials of the

government in charge of channels of communication."

Forbes v. Arkansas Educ. Comm'n, 93 F.3d 497, 504-505

(8th Cir. 1996).

3. The public's right to free and fair elections requires

the inclusion in televised election debates of all

candidates who have obtained ballot status.

The exclusion of independent and minor party candidates

from televised election debates improperly abridges the rights

of the public to free and fair elections. The election process

guaranteed by our constitution mandates that the public be

given full access to direct communication with all candidates

who have obtained ballot status. Access by all candidates to

the “market of ideas" represented by election debates is critical

to the public's ability to make meaningful and informed

balloting decisions for public officials.

In 1988 and 1992, exit polls showed that in the

decision on the debates than on any other single factor. In

1992 the television audience for the third and final presidential

debate was 97 million viewers. In the words of the

Commission on Presidential Debates: "These events have

, | eiaition 3 hich Ameri cupett,

watch, and value.”

A candidate’ S right to participate in televised debate is a

necessary concomitant and consequence of the right of the

electorate to effectively and intelligently cast their ballot and

the need of the nation as a whole for deliberative consideration

of public policy choices. Without the inclusion of all

candidates in election debates, voters enter polling booths and

find names of candidates they know nothing about on the

ballot. In such a situation it is impossible to make an informed

choice. That is not a free election. It is not an election.

Restrictions on the participation of candidates in election

debates should therefore be subject to the strictest scrutiny.

See e.g., Eu v. San Francisco County Democratic Central

Noor ch dhe th aha held that a California

an on by party committees abridged the parties

right to free speech. In Eu, the Court said:

"A State's claim that it is enhancing the ability of its

citizenry to make wise decisions by restricting the

flow of information to them must be viewed with

some skepticism.'" Tashjian, supra, 479 U.S., at

221, 107 S.Ct., at 552 (quoting Anderson v.

Celebrezze, supra, 460 U.S., at 798, 103 S.Ct., at

1575). While a State may regulate the [489 U.S. 229]

flow of information between political associations

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and their members when necessary to prevent fraud

and corruption, see Buckley v. Valeo, 424 US., at 26-

27, 96 S.Ct., at 638-639; Jenness v. Fortson, supra,

403 US., at 442, 91 S.Ct., at 1976. Tthere is no

evidence that California's ban on party primary

endorsements serves that purpose.” 489 U.S. at 228,

229.

In our day and age, the need to communicate over the

public airwaves is an inseparable part of the electoral process.

At the time the constitution was drafted, in 1787, voting was

by meetings with speeches followed by voting.

The election process guaranteed by our constitution

mandates that the public be given full access to direct

communication with all candidates in order to allow the public

to make informed decisions as whether or not to vote, and for

which candidates. Given the monopoly control of information

by the media, to permit broadcasters to select the candidates

processes.

The act of exclusion of a candidate from a debate is a fatal

blow to the candidate's chances on election day. Exclusion

implies that the ideas of the excluded candidate are too

extreme, too radical, or too uninformed. It implies that the

candidate does not have significant popular support and that a

vote for him/her, rather than one of the included candidates,

will be a wasted vote.

Because of the enormous cost of purchasing television air

time, it is not an answer to remit candidates to purchase time as

a substitute for free debate time. Free elections are the core

provision of our constitution. To require candidates to buy a

piece of the public airwaves at enormous sums in order to

communicate their ideas is a travesty of the constitutional right

to a free and fair election.

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‘

Neither is the limited obligations of the broadcasters to

provide public access to the airwaves under the fairness

doctrine contained in Section 135 of the Federal

Communications Act, 47 U.S.C. Sec. 315 (the .fairness

doctrine.) a sufficient to meet the constitutional requi

broadcasters to deny access to those whom in their subjective

judgment (or calculated self-interest) are not "news" or

“newsworthy”. This ability under the fairness doctrine of

broadcasters to select the candidates the public learns about

nullifies the entire election processes and is completely

contrary to our entire system of government.

"No right is more precious in a free country than that of

having a choice in the election of those who make the laws

under which, as good citizens, they must live. Other rights,

even the most basic, are illusory in the right to vote is

undermined." Burson v. Freeman, 504 U.S. 191, 112 S.Ct.

1846 (U.S.Tenn. 1992) 119 L.Ed.2d 5, 60 USLW 4393,

20 Media L. Rep. 11 37 Decided May 26, 1992 citing

Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11

L.Ed.2d 481 (1964).

The legislature is the body under our constitution that has

the right to determine the requirements to be a candidate in an

election. A candidate who meets the legislature's requirement

for ballot access — generally the gathering of large numbers of

signatures from registered voters signifying their interest in the

=.

or to ic wi i

exorbitant access fee to the media. ” a

A system which effectively requires a candidate to

edvertiaing time if his or her views ore to receive any publ

airing leads to a perception of corruption in the electoral

process when the amount of money required for such

purchases is far beyond the reach of individuals not allied with

Baw see —— a. <—_ eb es

This Court recognized in Buckley vs. Valeo,. 424 US. 1,

46 96 S.Ct. 612, L.Ed.2d 659, 76-1 USTCP 9189, that “(t)he

electorate's increasing dependence on television, radio, and

other mass media for news and information has made these

expensive modes of communication indispensable instruments

of effective political speech."

Surely the Court would not hold that the right of effective

political speech is a right only of the wealthy. Madison in

Federalist Papers #57 said it well:

“Who are to be the objects of popular choice? Every

citizen whose merit may recommend him to the

esteem and confidence of the country. 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 First Amendment does not give broadcasters a license

to exclude candidates from communicating with the public.

Should the public's constitutional right to free and fair

elections conflict with the first amendment rights of

broadcasters, the rights of the public to free elections are

paramount. CBS, Inc. v. F.C. C., 453 U.S. 367 (1981):

"It is the right of the viewers and listeners, not the right

of the broadcasters which is paramount. It is the

purpose of the First Amendment to preserve an

uninhibited marketplace of ideas in which truth will

ultimately prevail, rather than to countenance

monopolization of that market ***. It is the right of

tho pabe tp connive setae some fo aie Se

esthetic, moral, and other ideas and experience which

is crucial here." Red Lion Broadcasting Co. v. FCC,

395 U.S., at 390, 89 S.Ct., at 1806.

“The First Amendment interests of candidates and

voters, as well as broadcasters, are implicated by Sec.

12

choosing among them on election day." Buckley v.

Valeo, Par ane ua 96 S.Ct. 612, 651, 46

L.Ed.2d Indeed, “speech concerning

public affairs is *** the essence of self-government,"

Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct.

209, 215-216, 13 L.Ed.2d 125 (1964). The First

Amendment “has its fullest and most urgent

application precisely to the conduct of campaigns for

political office.” Monitor Patriot Co. v. Roy, 401 U.S.

265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).

Constitutional principles to " logical extremes." Noble

State Bank v. Haskell, 219 U.S. 104; (1911) This is

true when competing interests are at stake that

need to be harmonized, not lobotomized.. Colliding in the

matter at bar are claims of free speech by those to control the

forum, access to means of speech by candidates in the

electoral process and the increasingly undisputed dominance

of the political process by monied interests who seek to equate

money with speech. The Green Party submits that when

balancing these competing interests that another — even more

fundamental — right must not only be harmonized in, but

predominate, the result. That is the interests of the public in a

free and meaningful election process.

By upholding the fairness doctrine, this Court has already ©

demonstrated that the broadcasters who are the beneficiaries of

regulatory largess, have a reciprocal obligation to the public

13

weal. That obligation is to foster the market place of ideas .

not auction it off to the highest bidder.

Conclusion

It is respectfully submitted that the judgment below be

affirmed insofar as the respondent's right to be included in

the campaign debate is concerned.

Dated: New York, New York

June 27, 1998

Respectfully Submitted,

JOHN C. KLOTZ

Counsel of Record

885 Third Avenue, Suite 2900

New York, NY 10022

(212) 230-2162

Counsel for Amicus Green Party USA