# Amicus Curiae Brief — Arkansas Ed. Television Comm'n v. Forbes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0034%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 666 ## Text a “A 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 a Se ER a ER —~y ER . ‘ . . > pee OP} og’ tbe)’ Ga m4 i pa Ade on : sf ¢ ' hae F ii 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 iii 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 He | RT TATE = * 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 - - - >| a ee eee ee ee _ 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 6 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 a Se es ae 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” 9 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 12 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 Hi t rT 2 3 - | i 14 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 oot Beeais Hil S ne y fastg3 li rit =i H fH fut emit Hy tl Hi Ht ni r 8 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 19 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. 20 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 21 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 l 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0034%3A21. Public record. Not legal advice.