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

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7 BEST AVAILABLE

OCTOBER TERM, 1996

ARKANSAS EDUCATIONAL TELEVISION COMMISSION,

Petitioner,

Vv.

RALPH P. FORBES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF FOR THE BRENNAN CENTER FOR

JUSTICE AT NEW YORK UNIVERSITY SCHOOL

OF LAW AS AMICUS CURIAE IN SUPPORT

OF RESPONDENT

PHILIP ALLEN LACOVARA

Counsel of Record

Mayer, Brown & Platt

1675 Broadway

New York, New York 10019

(212) 506-2585

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TABLE OF AUTHORITIES

Pages

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983) ....... 13

Buckley v. Valeo, 424 U.S. 1 (1976) .......... 2, 4, 21

CBS, Inc. v. FCC, 453 U.S. 367 (1981) ........... 9

ous 750 (1988) ee oe 15

Coates v. City of Cincinnati, 402 U.S. 611 (1971).... 15

SUS BOS 15

Freedman v. Maryland, 380 U.S. 51 (1965) ........ 15

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) . 15

Illinois State Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173 (1979) .... 13

International $h¢ Krishna Consciousness, Inc.

v. Lee, 505 ERG du dibs 350 Or5 Ons 10

Lee v. International Soc Krishna

Consciousness, ine 308 US 830 (1992) ........ 10

Reno v. ACLU, US. No. 96-511

(June 26, 1997) ...772 he Culaia Seka 10, 15

v. Rectors and Visitors of the

Univ. of Va., 515 U.S. 819,

EID BR Bema cvs cece cbc awe Guin 8, 9, 12

Smith v. Goguen, 415 U.S. 566 (1974) ........... 15

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TABLE OF AUTHORITIES — Continued

Pages

, Cities Area New

Timmons 9 Win NF GL SCA ISN) 13, 14

Tamer Pret i Inc. v. FCC,

512 U.S. 622 opp fe FEE 4

Widmar v. Vincent, 454 U.S. 263 (1981) .......---- 9

Williams v. Rhodes, 393 U.S. 23 (1968) ......--->- 3

Statutes

11 CFR. $110.13 2... 2. cece eee eee eee eens 16

Ark. Code Ann. §§ 6-3-101, 6-3-102, 25-16-804(b)(1) .. 8

Miscellaneous

LAURENCE H., AMERICAN CONSTITUTIONAL -

LAW (2d ed. 1988) ..... 1. eee eee eee eees

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* Supreme Court Rule 37.6 Statement: No counsel for a party

authored this brief in whole or in part, and no person or entity

other than the amicus curiae or its counsel, ma<> a monetary

contribution to the preparation or submission of this briet.

presented with the request by candidate Forbes to participate

happen to satisfy the bare minimum qualifications for access

to the ballot. The First Amendment does permit a government

agency to fashion legitimate, viewpoint-neutral, and objective

criteria to make the allocation decisions that may be necessary

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to a place on the ballot. Williams v.

1968).

television station acts both as a First Amendment speaker

itself and as the creator of an important public forum for the

speech of others. If the public broadcast station is viewed

solely as a First Amendment speaker, the broadcaster would

be entitled to exercise virtually unlimited discretion to

determine which candidates are invited to participate in a

debate. If, on the other hand, the public broadcaster is viewed

solely as a conduit for the speech of the candidates, the

broadcaster would become subject to “public forum” doctrine

requiring government to provide equal access to all

candidate/speakers, even when such equal access would

The Brennan Center submits that the level of choice open

to a public broadcaster in such a setting should reflect both its

role as a First Amendment speaker and its public forum role

as a neutral “gatekeeper” for the speech of others. See

generally Turner Broadcasting System, Inc. v. FCC, 512 U.S.

622 (1994).

At a minimum, such a government speaker/gatekeeper

must operate pursuant to preexisting, objective rules setting

forth criteria for participating in such a debate. Resort to

SUMMARY OF ARGUMENT

correctly rejected the Network’ ;

S$ arguments asserting virtually

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2. The Network’s reliance on an essentially subjective

and ad hoc approach to distinguishing among candidates —

their relative “newsworthiness” — fails to pass constitutional

muster. The First Amendment requires more careful and more

verifiable standards for making that decision. Those standards

must be clear, viewpoint-neutral, objective, and pre-

established.

Since the Network here had failed to adopt

permissible, objective criteria when it decided to sponsor

debates, it was compelled to rely on ad hoc and subjective

evaluations once candidate Forbes sought to participate. The

court of appeals ruled properly that the Network’s resort to

standard.

In this case, the Network excluded Mr. Forbes under a

purely subjective, ad hoc standard that impermissibly favored

Democrats and Republicans over all other candidates. The

Network automatically afforded major party candidates access

to the debates, regardless of their level of support in the

community. J.A. 133-37. Thus, the Network apparently

invited a Republican candidate to a debate, despite his having

raised less money and demonstrated less public support than

Mr. Forbes. J.A. 133-34, 175. Moreover, the Network

disregarded Mr. Forbes, despite his having received 46 percent

of the vote in a statewide three-candidate Republican Primary

race for the Lieutenant Governor in the 1990 election cycle.

J.A. 149-54. The Network’s failure to operate pursuant to

pre-existing objective standards, and its bias in favor of the

major parties, rendered its gatekeeping decisions

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should be

3. Nevertheless, the Eighth Circuit went too far in

appearing to impose an unadorned ballot-certification standard

as the sole measure for inclusion in a government-sponsored

candidate debate. The Eighth Circuit’s blanket rule fails to

I. THE EIGHTH CIRCUIT CORRECTLY REJECTED

for the chosen candidates to speak to the television audience,

the Network hoped to increase voter interest in the election,

and to make the views of those candidates more widely known

and understood. There is nothing nefarious about those goals

— indeed, they are praiseworthy. Make no mistake, though:

this was no mere news show.

This dispute challenges a government body’s decision to

play a significant role in the electoral process, and to favor

some candidates over others in doing so. It should be judged

by constitutional standards that must guide government action,

not by inapplicable concepts of “newsworthiness” and editorial

autonomy.

2. The Network in effect seeks an exemption from the

normal constitutional standards applicable to government

bodies, simply because it has undertaken to perform functions

so easily blink away the undeniable and

crucial fact that it is a state actor and thus is subject to

constitutional constraints that do not bind editors and

publishers working in the private sector.

The Network concedes that it “is an agency of the State

of Arkansas” and that its operations are under the control of

a board of directors all of whose members are appointed by

the Governor of Arkansas with the advice and consent of the

State Senate. See Pet. Br. at 6, citing Ark. Code Ann. §§ 6-3-

101, 6-3-102, 25-16-804(b)(1). Thus, it is apt to recall here

what the Court observed in applying the First Amendment to

the resource allocations structured by the University of

Virginia in Rosenberger v. Rectors and Visitors of the Univ.

of Va., 515 U.S. 819, __, 115 S.Ct. 2510, 2513 (1995): As

“an instrumentality of the” State, the Network is “thus bound

by the First and Fourteenth Amendments.”

Moreover, the Network also blurs important constitutional

distinctions in claiming the same right to editorial autonomy

enjoyed by private broadcasters — or even by “public”

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stations operated by non-governmental not-for-profit

corporations. The crucial distinction is between the State as

speaker and the State as regulator of the opportunities of

others to speak.

The Court carefully drew this distinction in ;

Pointing to such cases as Widmar v. Vincent, 454 U.S. 263

(1981), the Court explained that, “when the State is the

speaker, it may make content-based choices” and may

“regulate the content of what is or is not expressed when it is

the speaker or when it enlists private entities to convey its

own message.” 115 S. Ct. at 2518 (emphasis added). The

Court then warned unambiguously, however, that it “does not

follow” that a state agency has the same autonomy when the

government “instead expends funds to encourage a diversity

of views from private speakers.” Id. at 2519.

The Network obscures the point by asserting, in reliance

on a decision involving a privately owned broadcast system,

that the “property here is a broadcast station, whose

share the opportunity that the Network was extending to other

speakers, the competing candidates, to face the voters directly

in trying to persuade them to support a particular candidate’ s

election.

Thus, there is no need to determine more broadly whether

a state-operated television station is generally a public forum

agency elected to open up its facilities to some speakers

the undeniable purpose of allowing them, in a debate format,

to address the viewing public. Under any of the approaches

expressed in various opinions in cases such as International

Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672

(1992), and Lee v. International Soc'y for Krishna

Consciousness, Inc., 505 U.S. 830 (1992), that decision by

state employees opened up a forum for candidates to address

1]

The Network’s argument is unprecedented — and

unjustified — even in the limited terms in which it is couched.

But larger democratic values are also at stake here. This is a

case about elections as much as it is about broadcasters. The

Court should not lose sight of the importance of candidate

debates in the eyes of voters. When those debates are created

and disseminated with the imprimatur of the State, they take

on even more significance. These facts enhance the need for

careful constitutional scrutiny.

4. The Eighth Circuit, therefore, was correct in rejecting

the Network’s arguments seeking to avoid any constitutional

scrutiny or to apply only the most deferential review. When

the government decides to create a forum for debate within an

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This is not to suggest, as the Network claims, that

genuine editorial decisions should be open to second-guessing

by the courts. It does not mean that public broadcasters can

be haled into court to defend every programming decision

they make. See Pet. Br. at 46. As we have explained, this is

not a case of an editorial decision to run one news story (or

educational program) instead of another. Rather, this is a case

about direct governmental involvement in elections —

favoring some candidates over others — and that

governmental initiative goes to the core of our consiitutional

democracy. More careful constitutional scrutiny is warranted

under these circumstances.

speaker’s political philosophy. This restriction applies even

when the government agency contends that it has scarce

resources — including the claim of limited air time advanced

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primarily to elect candidates, not as fora for political

expression.” Jd. at 1372.

Here, by contrast, we are talking about a state agency’s

decision to exclude a minor party’s competing candidate from

access to the “forum for political expression” created by an

organ of the State of Arkansas. The burden must rest on the

shoulders of the Network, therefore, to establish that both the

substance of its decision and the process by which it reached

that decision satisfied the prohibitions of the First

Thus, for example, in Forsyth County v. Nationalist

Movement, 505 U.S. 123, 131-33 (1992), the Court struck

down a parade permit ordinance that allowed administrative

officials too much discretion to vary the permit fee. The fatal

vice was that the ordinance itself “did not prescribe adequate

standards for the administrator to apply when he sets a permit

fee”; as a consequence, nothing in the governing law “or in its

application prevents the official from encouraging some views

and

fees.” See also

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the candidates or political parties. Most important, however,

the City insists that the “[p]otential sponsors must set forth

objective, non-partisan, and non-discriminatory criteria that

they intend to use to identify leading contenders” to be invited

to participate. City of New York Am. Br. at 3.

If private actors can and do develop objective, pre-

decision standards to constrain their selection of candidates to

invite to their debates, it is only reasonable to insist that state

actors should abide by the same principles. After all, their

influence on elections is subject to constitutional scrutiny, and

it is especially vital to assure that state officials’ intervention

in the electoral process is even-handed. This constitutional

requirement would prevent the perception, as well as the real

possibility, of discrimination against independent candidates

standards for distinguishing among candidates. For example,

another amicus appearing to support the Network, New

Jersey’s state-owned television station, currently admits

participants to televised debates based on their eligibility for

public funding. “As such, neither a candidate’s political party

affiliation, political philosophy [nJor electoral viability are

relevant considerations. This scheme is constitutionally valid,”

the State emphasizes, “because it is based upon an objective

criterion.” State of New Jersey Am. Br. at 1-2.

3. The specific, pre-established criteria that several of

the amici have developed are a far cry from the kind of

standardiess, subjective, ad hoc test that the Network used in

deciding to exclude Forbes from its debate. As the Network

describes the inquiry, its managers turned Forbes aside

because of the “feeling among both the professional staff at

AETN” and the local Associated Press bureau chief that time

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had to be allocated to just two candidates, and the Network’s

executive director then concluded that, in her “professional

editorial judgment,” Forbes “was not newsworthy enough to

be invited to the debate.” See Pet. Br. at 14, 17, 3.

At trial, the Network officials testified to a series of

factors that they considered in reaching that conclusion. See

Pet. Br. at 15-16. Some of those factors may be legitimate;

others may be too subjective. There is no doubt, though, thes

the decision was an ad hoc one that favored the major party

candidates over a well-known third party candidate.

As, we have shown, the Network’s own amici have

oe ne: cee Samar Stmrese ier Mephenenting

this important undertaking and to avoid the dangers of relying

solely on ad hoc, subjective considerations. The Network, by

contrast, never bothered to prescribe and then to apply

legitimate, objective criteria that would guide its exercise of

discretion in an area of core First Amendment concern.

Despite ample-_notice in Buckley and elsewhere of the need to

identify permissible objective criteria for measuring a

candidate’s political viability and corresponding entitlement to

electoral benefits, the Network insisted on applying a

subjective, ad hoc approach. That approach conflicted with

the Network’s obligations under the First Amendment and, as

the court of appeals held, entitles Forbes to at least nominal

damages.

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lil. THE EIGHTH CIRCUIT’S UNNECESSARILY

BROAD HOLDING SHOULD BE RECONCILED

WITH THIS COURT’S DECISION IN THE

CONTEXT OF PUBLIC FUNDING OF CAMPAIGNS

THAT THE GOVERNMENT MAY DISTINGUISH

AMONG CANDIDATES IF IT APPLIES PRE-

EXISTING, NEUTRAL, LEGITIMATE, AND

OBJECTIVE CRITERIA.

1. While the Eighth Circuit was right in ruling against

the Network, the standard it imposed for including candidates

is inappropriately — and unnecessarily — broad. By

requiring state-(wned television stations to grant air time to all

ballot-certified\candidates whenever a station sponsors a

campaign debate, the Eighth Circuit’s holding improperly

conflates the three sets of government decisions concerning

participation in a political campaign. The government may,

and should, apply different criteria to its decisions regulating

access to the ballot, access to publicly funded debates, and

access to public financing.

Thus, the Eighth Circuit’s broad holding, if extended to

challenges to public funding of campaign finance, could be

construed to require that benefits such as public funds be

made available to all candidates authorized to appear on the

ballot, irrespective of their demonstrated level of public

support or realistic viability as candidates with a reasonable

prospect of achieving victory. A blanket rule such as the

Eighth Circuit’s implies that no government agency has a right

to deny public funding, or other public benefits, to candidates

once they have been legally certified to appear on the ballot.

Such a rule could inhibit the development of public funding

on objective criteria of viability, such as those upheld in

Buckley.

In Buckley the Court decided that ballot-access thresholds

should not necessarily be equated with eligibility to receive

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other celection-related benefits. The Court explicitly

recognized a “significant distinction” between the two

scenarios. Buckley, 424 U.S. at 101. Under

seeking federal funding must show that they secured at least

5% of the popular vote in the prior election. Challengers of

See id. at 103. The Court rejected the comparison,

differentiating the standard for obtaining ballot access from

the right to public funding.

Ballot access, the Court explained, is “a step in any

campaign that, with rare exceptions, is essential to successful

effort * * * funding is, however, not as necessary as being on

the ballot.” Jd., at 101. Ballot access regulations are

By requiring state-owned television stations to grant air

time access to any candidate who meets a fairly liberal

threshold of ballot certification, the court of appeals failed to

recognize that different public interests are at stake when the

government structures other election-related programs,

Circuit should have limited its rationale to rely solely on the

Network’s failure to have formulated pre-established,

legitimate, and objective criteria that would have channeled

the officials’ exercise of discretion and minimized the risk of

independent candidates.

2. The case before the Court should lead the Court to

reject a rigid rule requiring participation by all candidates.

As broad touchstones for this exercise, it is sufficient to

observe that such criteria may not properly turn solely on

party affiliation or even on the “likelihood” of ultimate

electoral success. Rather, a publicly sponsored debate should

include all candidates who have demonstrated sufficient

support in the community that their participation in the debate

will serve to enhance the voters’ understanding of the issues.

As history reminds us, a candidate does not need to win an

election to be an important participant in the political debates

that are the essence of our democratic form of government.

CONCLUSION

PHILIP ALLEN LACOVARA

Counsel of Record

Mayer, Brown & Platt

1675

New York, New York 10019

(212) 506-2585

JULY 1997

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Appendix A

Federal Election Commission Regulation

11 C.F.R. § 110.13. Candidate debates.

(a) Staging organizations. (1) Nonprofit organizations

described in 26 U.S.C. 501 (c)(3) or (c)(4) and which do not

endorse, support, or oppose political candidates or political

parties may stage candidate debates in accordance with this

section and 11 C.F.R. 114.4(f).

(2) Broadcasters, bona fide newspapers, magazines and

other periodical publications may stage candidate debates in

accordance with this section and 11 C.F.R. 114.4(f).

(b) Debate structure. The structure of debates staged in

accordance with this section and 11 C.F.R. 114.4(f) is left to

the discretion of the staging organization(s), provided that:

(1) Such debates include at least two candidates; and

(2) The staging organization(s) does not structure the

debates to promote or advance one candidate over another.

(c) Criteria for candidate selection. For all debates,

staging organization(s) must use pre-established objective

criteria to determine which candidates may participate in a

debate. For general election debates, staging organization(s)

shall not use nomination by a particular political party as the

sole objective criterion to determine whether to include a

candidate in a debate. For debates held prior to a primary

election, caucus or convention, staging organizations may

restrict candidate participation to candidates seeking the nom-

ination of one party, and need not stage a debate for

candidates seeking the nomination of any other political party

or independent candidates.