Editorial Rights of Public Broadcasting Stations vs. Access for Minor Political Candidates to Television Debates

I. INTRODUCTION Television has been an increasingly predominant player in American election politics over the years, especially with presidential elections in the United States. In 1993, Newton M. Minow, director of the Annenberg Washington Program, and Marvin Kalb, director of the Joan Shorenstein Barone Center at Harvard University, stated "[t]he modern presidential campaign is essentially a television event. The campaign reaches nearly all voters through television, and it reaches some of them exclusively through television; for them, the television campaign is the campaign."(1) Given the undisputed impact of television on election campaigns, it is little wonder that the television debate(2) between political candidates has emerged as one of the most crucial events for voters and candidates. NBC Executive Producer William O. Wheatley, Jr. said: I believe the Presidential debates to be of critical importance in the way our nation goes about choosing a leader. Indeed, it seems clear that they have become the most important events of the election-year calendar, the best opportunity for the candidates to make their cases directly to a large audience of potential voters and the best chance for the voters to listen carefully and weigh what the candidates have to say.(3) On the other hand, various issues relating to television debates have been a topic of heated discussion among politicians and broadcasters over the years.(4) Congress held hearings on presidential debates on television in June 1993. Al Swift, chairman of the House Subcommittee on Elections, noted during the hearings: "If Presidential debates are now a fixture, then they should be presented to the voters in the most unfiltered and fair way possible. Many questions need to be addressed. Who should sponsor these debates? ... Who should be included? ... What is the role of the media ...?(5) The questions posed by Swift are not separate from each other; they overlap in that the broadcast media's direct participation as a sponsor of candidate debates often involves the media in determining who should be included in or excluded from the debates. Also, what kind of broadcast media are involved as debate sponsors? Are the sponsoring media public stations or private commercial stations? These and related questions can be critical because the fundamental rationale behind public broadcasting differs significantly from that of commercial television.(6) Nevertheless, public television and radio stations operated by state and local governments have the same rights and responsibilities under the First Amendment as any private commercial station.(7) On the other hand, judicial interpretations of the editorial rights of state-owned stations in their programming decisions have yet to offer a sense of consistency and predictability to public broadcasting stations. The U.S. Court of Appeals for the Fifth Circuit, for example, held in 1982 that the First Amendment rights of viewers do not impose limits on the programming discretion of public television stations licensed to state instrumentalities.(8) The court found that the public television stations in question did not provide the general public a right of access and held that they were not "public forums."(9) By contrast, the U.S. Court of Appeals for the Eighth Circuit in Forbes v. Arkansas Educational Television Communication Network Foundation (Forbes I)(10) ruled that government-owned television stations could be limited public forums when they sponsor debates for political candidates. The Eighth Circuit in Forbes v. Arkansas Educational Television Commission (Forbes II)(11) affirmed its earlier conclusion that the debate was a limited public forum and a legally qualified candidate could be excluded only if the public station sponsoring the debate had a compelling and narrowly tailored governmental interest.(12) In an effort to clarify the lower courts' conflicting interpretations of the editorial decisions of public broadcasting stations, the U. …