Who Can Join Public Television Debates?   

A federal appeals court will decide whether it was proper to exclude an indpendent candidate in Arkansas.

A day before last fall's election, candidate debates – a staple of campaign coverage – suddenly became a legally risky programming choice for many of the nation's public TV and radio stations. The risk emerged in a one-line order issued November 7 by the U.S. Supreme Court, generating more questions than answers. The actual impact on the stations may not be known for some time.

The court's action came on a significant test case from Arkansas, where a state-owned TV network got into serious legal trouble for staging a debate with only the two major party candidates taking part. The Supreme Court refused to extricate it from a lower court battle, so the network's fight goes on.

The Arkansas Educational Television Commission, which runs an educational TV network with five noncommercial stations, faces a trial in federal court over the claims of Ralph Forbes of London, Arkansas. An independent candidate for a congressional seat, he was not invited to a 1992 debate sponsored by the commission and the Associated Press on the commission's Conway station. He sued, claiming a violation of his First Amendment rights.

The Arkansas network's legal woes could afflict broadcasters who reach an estimated 24 percent of the American viewing and listening audience: the stations and networks whose licenses are held by state and local governments or by state colleges and universities. There are scores of these broadcasters scattered across the country in at least two dozen states.

For years, those government-run licensees have been vulnerable to legal attack precisely because they are arms of state or local government. Government entities generally have a constitutional duty to respect other peoples' rights, including First Amendment rights. But when state and local governments themselves are acting as the "speaker," the question arises whether they have First Amendment rights like any other speaker. The Supreme Court, however, has never defined those rights, so government-run stations and networks have been in a kind of constitutional limbo.

Those public stations, however, had been doing fairly well in lower courts in recent years. In 1983 the Supreme Court voted to leave intact a federal appeals court ruling that state-operated TV licensees were entitled to "free programming control of their broadcasts." The appeals court rejected a challenge by TV viewers who sued the nine-station Alabama Educational Television Commission for refusing to broadcast a documentary about the execution of a Saudi Arabian princess and her commoner lover.

Then, in 1991, the Supreme Court passed up another chance to settle public stations' rights. That time, the court left standing a federal appeals court ruling that state-owned broadcasters were free to decide which political candidates to include in a televised debate. That case, from Georgia, involved complaints by two Libertarian Party candidates who had been excluded from a 1990 debate on a state-run station.

Meanwhile, another federal appeals court ruled in 1990 that a state-run station in Iowa was not required to invite a minor party candidate to a broadcast debate.

What that string of precedents meant was that disappointed candidates could only complain to the Federal Communications Commission, under the federal "equal time" law, about being kept off the air by a public station. But the FCC generally has exempted debates from that law on the theory that they are a form of news coverage.

With all of those precedents on the books, the Arkansas state TV network apparently felt secure in 1992 in inviting only the Republican and Democratic congressional candidates for its debate near the end of that year's campaign. But the very court that in 1990 had upheld the Iowa state station's exclusion of a minor party candidate changed its mind in the new Arkansas case, ruling that independent candidate Forbes was entitled to be in court with his constitutional claim, rather than being relegated to the FCC.

When a state-owned broadcaster sponsors a political debate, the candidates who have qualified to run for the office have some "right of access" to join in that debate, the appeals court declared. If a station wants to reject access, that court said, it must have "a legitimate reason.. strong enough" to satisfy the First Amendment. It is far from clear what kind of editorial reason, if any, would satisfy that demand.

Moreover, it is not clear that the new ruling will only serve to limit editorial discretion over televised debates. The Arkansas network told the Supreme Court that the new theory of access "has implications far beyond" broadcast debates, or beyond political coverage in general. Conceivably, the network argued, "every programming judgment is vulnerable to court challenge" on the theory that the station is discriminating against points of view not included. l