Arkansas Educational Television Commission v. Forbes
Decided on May 18, 1998; 523 US 666


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed:  First Amendment

B. Legal Question Presented:

Is the exclusion of a candidate from a debate sponsored by a state-owned public television station a violation of the candidate's First Amendment right to freedom of speech?
II. CASE SUMMARY:

A. Background:

"Petitioner Arkansas Educational Television Commission (AETC), a state-owned public television broadcaster, sponsored a debate between the major party candidates for the 1992 election in Arkansas’ Third Congressional District. When AETC denied the request of respondent Forbes, an independent candidate with little popular support, for permission to participate in the debate, Forbes filed this suit, claiming, inter alia, that he was entitled to participate under the First Amendment. The jury made express findings that Forbes’ exclusion had not been influenced by political pressure or disagreement with his views. The District Court entered judgment for AETC. The Eighth Circuit reversed, holding that the debate was a public forum to which all ballot-qualified candidates had a presumptive right of access. Applying strict scrutiny, the court determined that AETC’s assessment of Forbes’ 'political viability' was neither a compelling nor a narrowly tailored reason for excluding him."
B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable
Unavailable
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable
Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)

Brief of amici curiae urging affirmance by M. Heins and Steven Shapiro.

Unavailable
IV. THE SUPREME COURT'S DECISION:

"Under our precedents, the AETC debate was not a designated public forum. To create a forum of this type, the government must intend to make the property 'generally available' to a class of speakers...

Here, the debate did not have an open-microphone format. Contrary to the assertion of the Court of Appeals, AETC did not make its debate generally available to candidates for Arkansas’ Third Congressional District seat... AETC reserved eligibility for participation in the debate to candidates for the Third Congressional District seat (as opposed to some other seat). At that point... AETC made candidate-by-candidate determinations as to which of the eligible candidates would participate in the debate. 'Such selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum.' Thus the debate was a nonpublic forum.

In addition to being a misapplication of our precedents, the Court of Appeals’ holding would result in less speech, not more. In ruling that the debate was a public forum open to all ballot-qualified candidates the Court of Appeals would place a severe burden upon public broadcasters who air candidates’ views. In each of the 1988, 1992, and 1996 Presidential elections, for example, no fewer than 22 candidates appeared on the ballot in at least one State... On logistical grounds alone, a public television editor might, with reason, decide that the inclusion of all ballot-qualified candidates would 'actually undermine the educational value and quality of debates.'

Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all... A First Amendment jurisprudence yielding these results does not promote speech but represses it.

The debate’s status as a nonpublic forum, however, did not give AETC unfettered power to exclude any candidate it wished... To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker’s viewpoint and must otherwise be reasonable in light of the purpose of the property.

The record provides ample support for this finding, demonstrating as well that AETC’s decision to exclude him was reasonable. AETC Executive Director Susan Howarth testified Forbes’ views had 'absolutely' no role in the decision to exclude him from the debate. She further testified Forbes was excluded because (1) 'the Arkansas voters did not consider him a serious candidate'; (2) 'the news organizations also did not consider him a serious candidate'; (3) 'the Associated Press and a national election result reporting service did not plan to run his name in results on election night'; (4) Forbes 'apparently had little, if any, financial support, failing to report campaign finances to the Secretary of State’s office or to the Federal Election Commission'; and (5) 'there [was] no ‘Forbes for Congress’ campaign headquarters other than his house.' Forbes himself described his campaign organization as 'bedlam' and the media coverage of his campaign as 'zilch.' It is, in short, beyond dispute that Forbes was excluded not because of his viewpoint but because he had generated no appreciable public interest.

The broadcaster’s decision to exclude Forbes was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment."

The U.S. Supreme Court reversed the judgment of the Eighth Circuit Court of Appeals.

Justice Vote: 3 Pro vs. 6 Con:

  • Stevens, J. Pro (Wrote dissenting opinion)
  • Souter, D. Pro (Joined dissenting opinion)
  • Ginsburg, R. Pro (Joined dissenting opinion)
  • Kennedy, A. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Thomas, C. Con (Joined majority opinion)
  • Breyer, S. Con (Joined majority opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged affirmance of the Eighth Circuit Court of Appeals judgment; the Supreme Court reversed in a 6-3 vote, giving the ACLU an apparent loss.