Third-Party Candidates Dealt Court Blow

Third-party candidates have no 1st Amendment right to participate in debates sponsored by public radio and TV stations, the Supreme Court ruled Monday.

In a 6-3 vote, the court rejected the claim that because state-licensed channels are a part of the government, they must give equal access to all candidates who qualify to be on the ballot.

Public broadcasters, like their counterparts on private stations, have the freedom to choose newsworthy candidates and to exclude those on the fringe, the court said.

“In the case of television broadcasting, broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose,” Justice Anthony M. Kennedy said.

If public stations were required to include all candidates, it would “result in less speech, not more,” he added. In the presidential campaigns of 1988, 1992 and 1996, no fewer than 22 candidates qualified for the ballot in at least one state. If public stations were obliged to include them all, debates would not be held, the court said.

Still, the discretion of public broadcasters is not unlimited, Kennedy said. Broadcasters must use “viewpoint-neutral” standards in selecting candidates and may not discriminate among them because of their views, he said. For example, they cannot exclude a prominent candidate from a debate because he opposes abortion or affirmative action.

In the case decided Monday, an Arkansas educational TV channel won the right to exclude Ralph P. Forbes, a perennial fringe candidate, from a 1992 debate between the Republican and Democratic nominees for Congress.

The one-hour debate was limited to candidates who had “strong popular support,” station officials said, and they informed Forbes he did not qualify. Earlier, he had obtained the 2,000 signatures needed to get on the ballot.

Forbes challenged his exclusion on free-speech grounds and argued that government-funded stations cannot select among qualified candidates. He won in the U.S. appeals court in St. Louis, which agreed that the exclusion violated the candidate’s free-speech rights.

Had Forbes prevailed in the Supreme Court, the ruling would have affected hundreds of state-licensed TV and radio stations. Two-thirds of these public stations nationwide are licensed to state governments or state agencies, the court was told. A broad ruling could also have affected the national public broadcasters who receive federal funds, including National Public Radio and the Public Broadcasting System.

But the Supreme Court reversed the lower court on Monday and sided with the public broadcasters in the case of Arkansas Educational Television Commission vs. Forbes, 96-779.

“There is no substance to Forbes’ suggestion that he was excluded because his views were unpopular or out of the mainstream. His own objective lack of support, not his platform, was the criterion,” Kennedy said.

The decision deals a setback to Texas billionaire Ross Perot and other third-party candidates who have insisted they have a right to be included in key debates.

American University law professor Jamin Raskin, who has represented Perot, denounced the ruling as a “big victory for Big Brother. We used to think the 1st Amendment protects the people against the government. This decision protects the government against the people.”

Dallas lawyer Kelly Shackelford, who represented Forbes, also condemned the decision. “The core issue of a free society is free and fair elections. This decision means a government employee can pick and choose the candidates.”

Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg dissented. “Given the special character of political speech, particularly during campaigns for elected office, the debate forum implicates constitutional concerns of the highest order,” Stevens wrote.