The Supreme Court's decision of May 18 in the Forbes case was a bummer. This was the case involving access to political debates on public TV. As a former editor I ought to be happy with the outcome, but I'm not.
This is the story:In the spring of 1992, Arkansas' public television commission (AETC) decided to sponsor debates among congressional candidates. The 3rd District offered a race between Republican Tim Hutchinson and Democrat John Van Winkle. In June they accepted an invitation for an hourlong, two-man debate on Oct. 22.
Everything would have been jim-dandy, but a complication arose. Independent Ralph Forbes unexpectedly obtained the 2,000 signatures required to get on the 3rd District ballot. He demanded a seat at the table.
After a week of soul-searching, AETC said no. Executive director Susan Howarth explained that the editorial staff had made a bona fide journalistic judgment that viewers would be best served by limiting the debate to the two major-party candidates. In the staff's judgment, Forbes was not a serious candidate; he had no staff, no money, no headquarters, no chance of winning.
Forbes sued. His bid for an injunction went up and down and back and forth in the 8th judicial circuit. Finally the case reached the Supreme Court. Last week the Supremes ruled 6-3 against Forbes and in favor of the AETC editors.
Justice Anthony Kennedy spoke for the court. Nothing in the First Amendment, he said, compels public broadcasters to allow third parties access to their programming. On the contrary, the AETC could exclude Forbes "in the reasonable, viewpoint-neutral exercise of its journalistic discretion."
I don't like it. If we were dealing with a privately owned TV station, it would be an entirely different matter. Private stations have a general responsibility to be fair in their coverage of political events, but private stations are not governmental entities. They are beyond the reach of the First Amendment, which says effectively that GOVERNMENT may not abridge freedom of speech.
But the thing is, publicly owned television IS government. There's the rub. The Arkansas commission is appointed by the governor. Its five stations are owned by the state. Members of the editorial staff are state employees. As such they are forbidden to discriminate in the administration of state services.
In the case at hand, Forbes had met every state requirement to establish his candidacy. He had paid the fees, met the deadlines, garnered the valid signatures. It is immaterial, or so it seems to me, that editors rightly felt he had no realistic prospect of winning. So what? What difference does that make?
Suppose we were dealing with the posting of political signs prior to an election. In many cities the posting is governed by local ordinance. For aesthetic reasons, signs must not exceed a certain size; they may be posted only in certain public areas; they may not be posted before a certain date. The same objective considerations govern permits to erect a billboard or stage a parade. The requirements are nondiscriminatory, specific and uniform.
The high court's opinion in the Forbes case turns this orderly procedure on its head. The AETC editorial staff had no written criteria to go by. Private editors may act on such subjective decisions. Public employees, in my own view, may not.