William H. Rehnquist: We'll hear argument now in Number 96-779, Arkansas Educational Television Commission v. Ralph Forbes. Mr. Marks.
Richard D. Marks: Mr. Chief Justice, may it please the Court: The issue in this case is whether the State of Arkansas may establish the Arkansas Educational Television Network as an institution of the press, insulated by policy, structure, and tradition from State political pressure. The issue is important to viewers across the country who depend on public television to select and deliver information, particularly so in political elections but, of course, at other times, too, and this case does not extend just to political debates, because if the decision below stands, its rationale will not only result in fewer debates and less coverage of politics, but it will extend to other programs of a controversial nature where the trustworthiness of public television editors will be questioned because they are employees of the State.
Speaker: Well, I think not necessarily. It all depends on the analysis that we follow, and you have to ask whether this is closer to a situation of the State speaking, as such, or a situation of letting candidates speak. I mean, it may fall on one or the other side of the line.
Richard D. Marks: Your Honor, I agree that the rationale that the Court uses will, of course, affect the scope of the decision, but I think that it's clear from the record whether we deal with a public forum doctrine rationale or whether we deal with a structural rationale based on League of Women Voters.
Speaker: I assume here that the station was intending to let the candidates speak. The station wasn't trying to put words in their mouths.
Richard D. Marks: That's correct, Your Honor. In this case we are not talking about State speech. We are--
Speaker: No, and did the station set in advance here the rules that it eventually came up with when there was a third candidate?
Richard D. Marks: --Your Honor, the rules--
Speaker: When it opened... when it first decided to have the debate, as I understand it, it just said we're going to let the candidates for this office come here and have a debate.
Richard D. Marks: --Not exactly, Your Honor. In fact, I think that that is not a full enough characterization of the record. What the State decided here was to hold a debate that would best serve the interests of its viewers, and the record reflects that the editors went through an elaborate analysis. Ms. Oliver did an elaborate investigation and reported to Ms. Howarth, the editor-in-chief of the Arkansas network, about those candidates who were newsworthy, and it is--
Speaker: I thought that occurred after this third party candidate appeared and said, I want to talk, too.
Richard D. Marks: --No, Your Honor. In fact, when the debate discussion started, which was sometime in the spring of 1992, there was a discussion, and it's reflected in the testimony that we had at trial, about how the debates would be structured and about their rationale, and the purpose from the beginning was to provide the citizens of Arkansas with a... an opportunity to hear the views of those candidates who were going to be the ones they were going to be voting for, who had, in the words of the witnesses, a serious chance, who were demonstrating popular support by virtue of any number of factors. Now, certainly--
Speaker: Well, I thought that was what emerged eventually in response to the request of Mr. Forbes to participate, but was that laid out in all its complexity at the outset?
Richard D. Marks: --Not in all its--
Speaker: No.
Richard D. Marks: --complexity, no, Your Honor, but what... but the early discussions between Amy Oliver and Bill Simmons, the chief of the Associated Press in Arkansas, concentrated on whom to invite. Now, when they issued the invitations the only candidates who were on the list to be invited were ballot-qualified candidates, and they were in each district the Republican and the Democratic candidates, so when the original decision was made, the only candidates who could be invited were the major party candidates. Mr. Forbes qualified on August 17 of 1992, and his letter was August 24, but even before that, Your Honor, the policies that AETN has adopted, the policy on editorial integrity, the programming policy which incorporates the principles of editorial integrity, set out for Ms. Howarth what would be her basis for decision.
Speaker: Well, I assume that this decision was parallel to what a private network would do with a similar debate in a similar format. Is that in the record, or do I just judicially know that, or is that important for the case, or--
Richard D. Marks: Your Honor, I think that there are enough cases... the Chisolm case, the Henry Geller decision at the FCC... so that in fact from those cases the Court can take judicial notice that this is a typical structure for debates.
Speaker: --Well, I mean, other stations, privately owned stations can surely do things that your station is not allowed to. Could your station endorse a candidate?
Richard D. Marks: No, Your Honor, because of section 399 of the Communications Act.
Speaker: Let's assume that's not there. As a constitutional matter, would your station be able to endorse a particular candidate for public office?
Richard D. Marks: Well, Your Honor, of course that is very much not this case, and I think under--
Speaker: Oh, I thought it was. [Laughter]
Richard D. Marks: --Not without 399, Your Honor, because the--
Speaker: I mean, I know it's not this case. I'm asking you, if 399 were not there, would your... would a publicly owned station as a constitutional matter be able to endorse a political candidate?
Richard D. Marks: --Under forum doctrine the answer is no, because I think to do that--
Speaker: Under forum... I'm not talking about creating a forum. I'm just talking about a publicly owned station that comes out and says we endorse, you know, the Republican or the Democratic candidate for this district. Now, a private broadcaster can certainly do that, can he not?
Richard D. Marks: --A private broadcaster can.
Speaker: But is... do you think a public broadcaster--
Richard D. Marks: I think this public broadcaster under these policies, the principles of editorial integrity and AETN's programming policy, this public broadcaster could not do that and stay within the bounds of the policy--
Speaker: --Well, I would be interested in hearing you answer Justice Scalia's question, which you haven't done yet. If the station wished to endorse a candidate, could it have done so under the Constitution, without regard to any statutory provision?
Richard D. Marks: --Mr. Chief Justice, I think that the answer to Justice Scalia's question would depend on whether that would be considered invidious discrimination, and I don't think there's any precedent on it, but my belief is that it would be.
Speaker: Under the... some equal--
Richard D. Marks: Sure, under an equal protection theory.
Speaker: --protection doctrine, or the First Amendment? That they couldn't do it?
Richard D. Marks: Could not. Could not, because I think that the... I think, Justice Scalia, that there are limits on what a State-owned broadcaster can do. I think those bounds are set by invidious discrimination--
Speaker: Well, to tie that in to where we were before I asked the question, the mere fact that you're using standards that a private broadcaster would use, and that you're doing nothing more than what a, you know, a private station would do, you're not behaving in a politically biased manner, you're just behaving like a good broadcaster, that doesn't help your case, because there are some things that private broadcasters can do that you can't do, and maybe this is one of them.
Richard D. Marks: --I think, Your Honor, that there's a great difference between endorsing a candidate and having the State come down that way. I think it's an equal protection issue at the very least.
Speaker: Well, I think that... I'm not sure about that, but can your answer be, and could we look at this case as saying that we look at different programs to determine what the First Amendment rules are, and we look on a program by program basis, or do the same rules have to apply to every part of the station's ownership, management, and control in broadcasting, i.e., hypothetical about endorsement, hypothetical whether you can hire all Democrats or all Republicans for the editorial board and so forth? We look at the precise function that's in question, i.e., the conduct of debate. Is... would that be a way to answer Justice Scalia's question, and would that be an adequate... is there adequate precedent for us to decide this case on that sort of analysis?
Richard D. Marks: The answer to the second question is yes, and the answer to the first question is yes. Each one of these situations, each one of these questions about whether a particular program satisfies this Court's precedent, is a two-level analysis. First you've got to analyze the intent of AETC in delegating to Ms. Howarth the editorial discretion within the bounds of these policies, and Justice Scalia, these policies do bound her in a way that a private broadcaster is not bound, because they require her to consider credibility and fairness and balance and accuracy and objectivity, and a private broadcaster is not bound that way.
Speaker: Don't you think private broadcasters might think those elements were desirable, or--
Richard D. Marks: I think most broadcasters would find them desirable and, indeed, Mr. Chief Justice, the intent of adopting the principles of editorial integrity was to allow the public broadcaster to walk this very difficult line of needing to satisfy the requirements of the First Amendment as the foundation requirement, but at the same time being able to satisfy the requirement in the Communications Act that it control all its programming, because they're--
Speaker: --Being responsible wouldn't allow you to endorse one of the candidates for the office even if you had criteria, we will not endorse any candidate unless, and you set out the criteria. It may be very responsible. It may be very objective, even, but that doesn't prove that the Government can do it, the mere fact that it's objective and responsible. You wouldn't allow an endorsement of a candidate to proceed on that basis.
Richard D. Marks: --Well, Your Honor, in this case... I understand that the question is a, if I understand it correctly, a polar question for analytical purposes, but this case has a record, and there are distinct policies here, and there is elaborate testimony--
Speaker: Yes, but on the record in this case, could they... just to take the other side of Justice Scalia's question, could they announce that we don't want you to vote for Forbes? Don't waste your time listening to him, or voting for him, concentrate on the two major candidates? In other words, a reverse--
Richard D. Marks: --With--
Speaker: --A disendorsement of him.
Richard D. Marks: --With section 399 not there, Your Honor?
Speaker: Yes.
Richard D. Marks: With the prohibition not there? I still believe that there's an equal protection boundary for a State-owned broadcaster in that area.
Speaker: Is it an invidious discrimination for State-owned agents to say, we just think this guy is off the wall, we don't think you should waste your time with him, and if all that is true, it's invidious discrimination?
Richard D. Marks: Well, I think that is viewpoint discrimination, as I understand your question, that's certainly prohibited under the rationale of the forum doctrine cases, because--
Speaker: Well then, why isn't what you did viewpoint discrimination?
Richard D. Marks: --Because in--
Speaker: Because you had a lot of neutral rules out there that are not in writing anywhere, but governed exactly how you'd handle the debate.
Richard D. Marks: --The guiding principles are certainly in writing, and there are two levels, the guidelines--
Speaker: Yes, but they don't tell us whether he would have been permitted to debate if he could have gotten 12 percent of the vote instead of 2 percent, do they?
Richard D. Marks: --That's right, Your Honor. What Ms. Howarth is obligated to do is to apply the principles of mainstream journalism and, under those principles, she made a decision based on newsworthiness. Now, it seems to me that--
Speaker: Isn't that simply a way of saying that the distinctly minority candidate always loses? Because I presume newsworthiness is a measure of the interest of the public in the candidate, and if the judgment is made by the station that this candidate is a loser, is never going to garner anything but a small minority, and therefore is not newsworthy, then the minority candidate always loses, and why isn't that a pretty darned good surrogate for viewpoint discrimination? The viewpoint is unpopular.
Richard D. Marks: --There are two reasons, Justice Souter. First, as Mr. Perot's experiences in 1992 and 1996 illustrate, there can be a different conclusion based on newsworthiness, and the distinctly minority candidate does not always lose.
Speaker: Isn't it true that you put both party, major party candidates on even though one has a tiny percent and so is not of much interest to the public?
Richard D. Marks: Yes, Your Honor, and the reason, as reflected in the record in the testimony of Ms. Howarth and Ms. Oliver, is that a major party nomination carries with it a degree of public support that news people usually don't ignore, and they didn't ignore in this case. They felt it was--
Speaker: May I return to Justice O'Connor's question about what these standards of newsworthiness were? There was nothing written down in advance, and so why isn't this like the legions of cases that have come up with a Government official allowing, say, a permit for a parade with no standards at all, and then after a request is made, may be coming up with a set of reasons? Generally in this area, hasn't the Court required at least that there be clear standards written down going in?
Richard D. Marks: --Not in a nonpublic forum, Your Honor, and certainly not under a League of Women Voters structural analysis. If you... I don't think that we require that... I don't think this Court's cases require--
Speaker: I don't know about the League of Women Voters, but we are talking about whatever else they are, they are Government actors.
Richard D. Marks: --Let's... let me address that in terms of Polk County. There's no question that there's State action here, but Ms. Howarth is not acting, in our view, as we have said in our brief, under color of State law. She is exercising independent professional judgment. This is essentially a private press function. She's not dependent on the State's coercive power here. She's not doing this out of loyalty to the State.
Speaker: If you have integrity, you're not a State actor? Is that the principle that you're trying to-- [Laughter] Could she refuse to allow someone on account of their race--
Richard D. Marks: No, Your Honor.
Speaker: --Clearly she's a State actor in that sense.
Richard D. Marks: If she crossed... first of all, that would be outside these policies that guide her, and in response to Justice O'Connor's and Justice Ginsburg's question, theses policies do provide some guidance. It's not as if the... not as if she's out there on a chartless sea.
Speaker: Well, I think the question is what's permissible for a State actor, not whether or not she is or is not a State actor.
Richard D. Marks: And if that's the case, Your Honor, just on pure forum doctrine terms, when you're dealing, Justice Ginsburg, with a nonpublic forum, then the rules there need not be--
Speaker: Well, who said it was a nonpublic forum? I thought that was what we had to decide, and here the station chose to open up a debate to selected candidates. I mean, that sounds a lot like a limited public forum to me, not a nonpublic forum. I guess we have to resolve that, don't we?
Richard D. Marks: --Yes, Justice O'Connor, you do, but I think as you phrased it the key word is selected candidates, because the intent of Ms. Howarth from the start was clear that she was not opening up this debate to candidates who were not newsworthy.
Speaker: Do you think selectivity alone means that it can't be a limited public forum?
Richard D. Marks: I think that in--
Speaker: I hadn't thought so. What do you rely on for that?
Richard D. Marks: --Well, I'm... I'm not sure I understand your question, Justice--
Speaker: Well, I want to know whether this was, as we would characterize it, in some of the cases from this Court, a limited public forum, or is it a nonpublic forum, and do we determine that based solely on the fact that candidates were selected by the station to participate?
Richard D. Marks: --We determine it based on Cornelius, which set the starting point--
Speaker: Well, I must say, although I played a part in Cornelius, I think that can be cited for both sides, because it certainly doesn't determine this case, I'm afraid.
Richard D. Marks: --I think what we need to do is look at Ms. Howarth's intent, and I think we need to look also at the equity AETC's intent in establishing a network to control all of its programming and exercise editorial judgment over all of its programming.
Speaker: Excuse me. We can't hear very well right now. I-- --You're speaking quite clearly but I think it's the microphone. I think the microphone isn't working. It's not your problem. It's not working. So you'll have to speak up, I'm afraid.
Richard D. Marks: I can do that. Can you hear me now?
Speaker: Yes, very well. Very well.
Richard D. Marks: Justice O'Connor, the answer to the Cornelius question is, what was Ms. Howart's intent? What was the AETN's intent? The intent is key in both the structural analysis of the reading of the League of Women Voters, and on the--
Speaker: Well, when you say intent, Mr. Marks, you mean, what was the intent of the person planning the program? Did they simply mean to turn it over to the candidates, or did they mean to plan something that was more like a debate where they had more control over it?
Richard D. Marks: --That's exactly correct, Mr. Chief Justice, and the key is whether Ms. Howarth intended to open up the debate only to newsworthy candidates, or whether she intended to allow the debate to be open on a nonselective basis to anybody who was ballot-qualified.
Speaker: Mr. Marks, maybe I misapprehend this, so tell me if I do, but my notion of a nonpublic forum was a closed circuit like the teachers in the school, like the Federal employees who are being solicited, that that... but this, whatever else it is, it is for the public. The debates are for the public, not for a group of schoolteachers, not for a group of public employees, so I was thinking that whatever it is, it isn't a nonpublic forum.
Richard D. Marks: Ms. Howarth's contention is that it is a nonpublic forum because it was Ms. Howarth's intention in providing for participation she was not opening it up to all ballot qualified candidates, but only to those candidates that were newsworthy, and Mr. Forbes was not newsworthy. He was an ineffective candidate. His efforts to fit a place in the market space were feeble, he was not generating public support, and for that reason Ms. Howarth concluded that his appearance would not serve her audience, and for that reason it was her position that he did not fit the criteria to be included. If I may, Mr. Chief Justice, I would like to reserve--
Speaker: Can I just ask, what was [inaudible] reporters in advance decided what the subjects are, decided what the questions will be, and they asked the questions to the candidates in a very narrow area. What was the nature of this debate?
Richard D. Marks: --Your Honor, you will find a discussion of the debate in the motion for summary judgment that was filed.
Speaker: But I've looked at that, of course, and I can't figure it out just on the basis of that.
Richard D. Marks: In Mr. Simmons affidavit--
Speaker: So far in looking through the record I've not been able to find out what the debate [inaudible] a matter of public record was the broadcast, what was the format?
Richard D. Marks: --It was an hour, actually it was 53 minutes time for the candidates. The candidates began with a 2 minute opening statement and concluded with a closing statement, and between that each candidate had a minute to answer each question posed by the panel of journalists, and then Ms. Howarth testified that there were opening and closing credits and other material.
Speaker: And how many journalists were there and how did they work out their questions?
Richard D. Marks: They were selected from Associated Press groups of editors and reporters who asked their own questions.
Speaker: Mr. Marks-- --Thank you, Mr. Marks. Mr. Wallace, we'll hear from you.
Lawrence G. Wallace: Thank you, Mr. Chief Justice, and may it please the Court: When a governmental entity puts on a Law Day program utilizing invited speakers who are not themselves Government officials or employees, no one would think that advocates of terrorism or anarchy could not be excluded from participation as speakers. Viewpoint neutrality is not required, because forum analysis does not apply to the Government's own expressive presentations to the public. Forum analysis is instead designed to address situations where the Government... where Government property or facilities are dedicated to use for private speech and the Government is acting--
Speaker: Well, a candidate debate is sort of exactly that. The station says we want the candidates for this office to come out and have a debate so the public gets to hear them and communicate with them on their views. I mean, why isn't that a public forum? Of course a university or a station can have programs and teach what it wants, but when they choose to set a candidate's forum that's highly expressive and communicative with the public, why isn't that different?
Lawrence G. Wallace: --The mere fact that non-Government participants are invited to participate in the Government's expressive activities does not, I would argue, turn that into a forum where the Government is acting only in a regulatory capacity with respect to private speech to which it's dedicated its facilities.
Speaker: Mr. Wallace, I'm not sure I even agree with your premise that if this were not a forum, that if the Government were just speaking on its own, at least where it's speaking in the realm of partisan politics, do you think the Government could come in and say, you know, we want you folks to consider the Republican Party and the Democratic Party. This other party is an irresponsible party. You think a Government station can do that?
Lawrence G. Wallace: Well, the Government... the Communications Act prohibits--
Speaker: Well, we're not talking about the Communications Act, Mr. Wallace, you know. We're talking about the Constitution. As I understood your position, you think it is constitutional so long as the Government is making its proposal itself for the Government to come and say, ladies and gentlemen, you know, consider the Republican candidate and the Democratic candidate. This other party is irresponsible. You think the Government can do that? I don't.
Lawrence G. Wallace: --Well, an incumbent running for reelection can espouse his own political cause.
Speaker: Oh, he's not speaking as a Government official when he does that.
Lawrence G. Wallace: Well, he may work that into his official statement.
Speaker: I don't suppose the President is regarded to be viewpoint neutral or anything like that, when he speaks, and certainly he's the top Government official.
Lawrence G. Wallace: Well, that is our point.
Speaker: But the Attorney General can do it? You think the Attorney General can come out and say, ladies and gentlemen, I want you to consider voting Republican. You know, the Government's paying for the radio time, and the Attorney General can come out and say that? I find that astounding.
Lawrence G. Wallace: As far as protecting speech, it's hard to see why that would violate the First Amendment when a Government official is speaking. It may be something we would consider improper--
Speaker: Do you lose this case if this is a designated public forum?
Lawrence G. Wallace: --Not at all. The last section of our brief shows why that standard is met here in light of the special verdicts of the jury exception, but we happen to think that that is the correct analysis. It is commonplace for non-Government participants to enrich Government expressive presentations. Common examples are the commencement speaker at a State university, a visiting exhibition at the State art museum, the authors' works that are published by the State university press, a lecture series that's given at the State museum--
Speaker: None of those are nonpublic forum?
Lawrence G. Wallace: --Those are not forums at all. Those are Government presentations. They're a form of publishing by the Government. They don't give rise to a right of access under the First Amendment by other people who would like to use--
Speaker: Well, I think it's rather dangerous to say that at a commencement address the Government is the speaker.
Lawrence G. Wallace: --Well, obviously views will be stated that are the individual's own views, but the speaker has been selected to contribute to the Government program, and the... it's the difference between Government regulation or suppression of speech whether the Government is required to publish speech by those who would like to use the Government's way of publishing in one way or another and participate in the same way, and the same principles apply where a television station happens to be licensed to a Government entity, that they are... under the Communications Act a broadcast licensee is a trustee responsible for selecting programs that will meet the needs of the community it is licensed to serve, and it will fulfill that obligation by selecting programming that may originate with a private entity that gives the program--
Speaker: But you can reach that conclusion without saying the licensed entity is a Government speaker.
Lawrence G. Wallace: --Well, the... if you once start applying forum analysis that... it gives access rights to a Government publication and their speech. If the station is carrying the Metropolitan Opera broadcast does that mean a composer has some enhanced right, if his opera's not being broadcast on... at the Met, to have access to the station, to use the station's facilities to have his opera heard?
Speaker: Probably not, but nonpublic forum analysis is quite capable of making that distinction.
Lawrence G. Wallace: Well, but we think that the principles that apply in news broadcasting are doing the same thing. If there is an interview on the evening news hour of private commentators to comment on a terrorist act that occurred that killed people, it isn't necessary to include a spokesman for the terrorist group among those asked to be commentators. This is part of the Government's own presentation.
Speaker: Mr. Wallace, suppose we had a town hall that's devoted to debates, and we have a debate there among candidates, and the town leaders say, we want the debate to exclude all third party candidates, is there any... is that okay, too? Are you talking about anything that's peculiar to radio/television?
Lawrence G. Wallace: I think that would be a closer case, because we don't have the same obligation of the licensee who's entrusted to use this frequency to serve the needs of the community to exercise the control over the programming presented. It's a much more... it's a much closer case.
Speaker: Why? You just said that there's less control from the point of view of the public interest in the hall than in the radio/TV setting.
Lawrence G. Wallace: Because the licensee is responsible, in using the frequency, to select the programming that it determines will serve the needs of that community. That is the scheme of the act under which it's operating, and it can decide that broadcasting news excerpts from the campaign speeches of major candidates is something worthwhile to do. It can make the same judgment about how a debate--
Speaker: But let's just talk about debates, because to... I thought that Chief Judge Arnold made it pretty clear he was talking about debates and nothing else, so we have the debate in the town hall and the debate on the Government station, and you say there are different rules that would apply to each?
Lawrence G. Wallace: --Well, there are rules that apply under the Communications--
Speaker: No. Let's stay with the Constitution, and my question is particularly, in either case would you need rules going in so you could check on the integrity of the Government official?
Lawrence G. Wallace: --As long as it's a Government program, it's clear that this is something that the Government is putting on for the benefit of the public, the Government can choose who shall be participants, what private person shall be a participant, what private person shall not be.
Speaker: And it doesn't need any kind of reasons, even post hoc--
Lawrence G. Wallace: It has to meet equal protection standards. It cannot engage in invidious or irrational discrimination.
Speaker: --Thank you, Mr. Wallace. Mr. Shackelford, we'll hear from you.
Kelly J. Shackelford: Mr. Chief Justice, and may it please the Court: I'm going to take about 30 seconds and put this in context. In 1990, Ralph Forbes running for lieutenant governor received 47 percent of the State-wide vote in the Republican primary. That vote included carrying 15 of 16 counties which comprised the Third Congressional District. So, 2 years later, he ran for the Third Congressional District. He obtained thousands of signatures and met the State's standard for a candidate's seriousness and qualified as one of three candidates on the ballot. Days later, an unelected Government official summarily declared him a frivolous candidate and banned him from its debate for that very seat. The Government therefore today asks this Court to give it unfettered discretion to pick and choose amongst candidates, and confer powerful Government benefits on those it chooses, to the detriment of their opponents.
Speaker: Mr. Shackelford, one of the suggestions that's been raised is that if in fact the State is limited in what it can do here, the State will be limited in what it can do almost universally throughout its broadcasting, including news broadcasts and so on. What's your answer to this slippery slope?
Kelly J. Shackelford: I think it's completely inaccurate. I understand the Government's attempt to widen this to all programs, but a debate, a candidate debate sponsored by the Government is a particularized and very unique event. It has aspects which really do not apply to any other forum. For instance, number 1, it involves not just speech, but core political speech that this Court has said is the apex of protection under the First Amendment. Secondly--
Speaker: Well, a news... I... all right. You get your list out. Then I have a question.
Kelly J. Shackelford: --Second-- [Laughter] --it involves... this is I think one of the most important. It involves more than speech. In this context a candidate debate involves the idea that the Government can... that Government can interpose itself in an election process, possibly skewing the debate and possibly affecting the outcome of the election, and third, it is made by its very nature for candidates, it's intending to present them to the public without going through the normal sieve of editorial control of media or third parties. And then lastly, it is a contest, and the reason you will watch these debates is because of the face-to-face synergy and dynamics of the debates. There are a number of factors--
Speaker: May I just interrupt with this one question? Wouldn't all those considerations also apply to a policy of interviewing people on a Sunday news program where you want to ask them what they think of the latest bombing over in some place?
Kelly J. Shackelford: --I don't think so. Number 1, we would not be talking about the election process.
Speaker: No, right before the election the only people they want to interview, what do the candidates... what do these two leading candidates think about this national issue that's just suddenly hit the headlines?
Kelly J. Shackelford: I think that's certainly different, because it wouldn't be the situation with the candidate debates, where the purpose is actually for them to present themselves to the public and essentially--
Speaker: Well, they certainly would run to the station just for that very reason. They'd want people to look at them and hear what they have to say about this, because they want to get votes.
Kelly J. Shackelford: --But the purpose of... assuming this is a Government station, the purpose of the station would be to create a debate where candidates are presenting themselves and trying to influence the voters' viewpoint. The purpose of the Government station in that limited part of the program would simply be--
Speaker: Well, but the purpose here was not just a wide-open debate, as I understand it. It was a very structured thing. The candidate... each candidate wasn't given just 15 minutes to do what you want to, but the questions asked by reporters, the time for opening was limited, and that sort of thing.
Kelly J. Shackelford: --Yes, but for instance the candidates were given an open microphone at the beginning and the end to express their views. After each question, they were given full rein to answer those questions. There was no editing of the words as they came out of their mouths by the Government. This was really not just a forum, it was actually part of the definition that this Court's given for what a forum is. In Cornelius and Perry and a number of cases, this Court in describing what a forum is, has said it's public property, open quote, for assembly or debate.
Speaker: But one of the problems in applying that kind of forum analysis here is this. If we're dealing with... take the easy example, the traditional public forum, the street corner where the soap boxes are, basically it's a matter of no concern whatever to the process whether one person shows up with a soap box or 200 show up with a soap box and just sort of shout at each other in a cacophony, but that does legitimately matter if we're talking about a TV debate, and I guess I have two questions. Number 1 is, is it... are you going to take the position, to be consistent, that there can be no limitation on the number of candidates, and if the answer to that is no, then what is your criterion for selection?
Kelly J. Shackelford: We have not taken that position. The position we have taken is that the Government cannot subjectively pick and choose amongst the candidates. We agree that objective and constitutional criteria, such as the ballot access laws, are appropriate, and therefore we're not saying that no standards would be allowed. They could even, for instance, simply draw the names out of a hat. For that at least would be Government neutrality.
Speaker: Well, how about a State where the write-in procedure is very simple, and someone who is perhaps defeated in a primary is going to run as a write-in, and his name is Willy Wacko, and he's regarded as a total loser by all political observers. Do they have to give him access?
Kelly J. Shackelford: No, Your... Mr. Chief Justice, I don't think they do. Again, you have an objective standard, set in place beforehand, a ballot access law. That's perfectly allowed, but this Court's ballot access decisions, what the Court has said is, it's okay to ensure a modicum of support. However, the Court has never said that the Government can subjectively pick and choose--
Speaker: Well, you want something more than-- --You're saying that the same standard applies when you're talking about ballots, State regulation of ballots, as applies in this situation where you're talking about a State-operated--
Kelly J. Shackelford: --Certainly the dangers are very similar, in that we have Government, if they're allowed to subjectively interpose themselves into the election process, whether it's affecting the debate and what personal issues can be discussed by the candidates, or whether it is affecting, you know, the ballot, it has serious consequences.
Speaker: --Mr. Shackelford, with respect, you want something more than objectivity. It would be quite objective to say the two parties that got the most votes in the last election will be the candidates that we'll interview. Will that satisfy you?
Kelly J. Shackelford: Your Honor, there has to be two criterias. There has to be first objectivity and the second has to be constitutional. Now, if--
Speaker: Ah, but it's only the latter that we're talking about here. I mean, let-- [Laughter]
Kelly J. Shackelford: --I think they're both a part of the Constitution, number 1, is the analysis issue, if it's subjective unfettered discretion, that is unconstitutional.
Speaker: Fine, but what do you want besides objectivity? It's not objectivity alone.
Kelly J. Shackelford: I... certainly the standard laid out, again, because we're dealing with sort of a hybrid First Amendment as well as election issues. What this Court has set out saying... under the ballot access cases saying that a modicum of support is all right, but what you can't do is simply pick a particular party and attempt, as the Government, to entrench those parties and throw out--
Speaker: So you're arguing for a standard. You want us to police these things and determine who has a modicum of support. That's your test.
Kelly J. Shackelford: --Well, the ballot access... the ballot access--
Speaker: In Buckley v. Valeo the Court upheld part of the act of Congress that gave special benefits to the Republican and Democratic parties and not to anybody else.
Kelly J. Shackelford: --Mr. Chief Justice, you're correct, but they did so not on a subjective basis, on the basis of objective standards laid out ahead of time with regard to candidates. Certainly they weren't--
Speaker: Well--
Kelly J. Shackelford: --Certainly they weren't allowing Government officials to simply look and say we'll give this party this--
Speaker: --Well, but they-- --Well, what if the station had said in advance, we're going to have a debate, we're not including all candidates, we're going to limit it to the selected candidates of the Republican and the Democratic parties, and this is spelled out in advance?
Kelly J. Shackelford: --Then I think that you have a problem under Williams v. Rhodes and others, where the Government can't pick particular parties. They can use objective criteria that might favor individual parties--
Speaker: Like the ones who qualifies to get public money for campaigns? That's going to leave out some minority candidates.
Kelly J. Shackelford: --Right. In this case, for instance, if an objective standard was used like how many votes you got for the past elections, Mr. Forbes would qualify. One of his opponents wouldn't but Mr. Forbes would have, but instead of giving him an objective standard he can meet, the only objective standard that was there, he did meet. They simply won't wish that--
Speaker: Well--
Kelly J. Shackelford: --That's why they ask the Court today for unfettered discretion to simply pick and choose.
Speaker: --What about, you know, you have to be the candidate of a party that was one of the first two parties in the last election? That's objective. It doesn't name the Republicans or the Democrats, and it would bump your candidate, wouldn't it?
Kelly J. Shackelford: I think this Court's ballot access cases invoke the theory that guarantees the parties some sort of--
Speaker: No, we don't care which one it is. It just has to be one of the first two parties in the last election. It could be the Bull Moose Party as far as we're concerned. [Laughter] That's the problem with the standard. It is difficult to form a standard. What about following the standard that Congress and the Federal Communications Commission have adopted after thinking about this very problem in trying to come up with a standard that would prevent unreasonable tests?
Kelly J. Shackelford: --Well, the standard that the Government has actually chosen under the FEC is actually that of preestablished subjective criteria.
Speaker: Well, all right. If in fact, would that be a possible standard? We're concerned about this, the way the Court would be able to... is to look to the very standard that Congress and the FCC had developed in order to deal with the problem that is under... existed in Arkansas.
Kelly J. Shackelford: Well, obviously we don't think that the Constitution is somehow overridden by the FCC--
Speaker: No, obviously not. The constitutional problem here is to find a standard. What's the objection to going to Congress and having them define a possible standard that as long as it seemed within the realm of reason would work with the Constitution?
Kelly J. Shackelford: --Well, I think the Court contemplates whatever it wishes to come out with its standard, whatever it determines or interprets to be necessary to be constitutional--
Speaker: If, in fact, we follow the Congress and the congressional FCC standard in the area, how does that affect your model?
Kelly J. Shackelford: --Well, if we're talking about the FCC, I assume there is no standard. They... what both Government agencies, the Federal and State said today is they think have unfettered--
Speaker: I'm not... what I'm driving at is, I thought that Congress perhaps considered the problems of the national tabloids having debates, and how could we have a debate, because if they had to talk to everybody, no matter what, there would be too many people and they couldn't do it. I thought they came up with legislation designed to deal with this? Isn't there a law or an FCC rule that deals with this in the case of national television debates?
Kelly J. Shackelford: --Not that I'm aware of... that deals with any FCC criteria of how to pick their candidates. I think they are seeking unfettered editorial discretion of the stations.
Speaker: That's one of the standards. We have a whole universe of choices, I suppose, based on our interpretation of the Constitution. One standard is editorial discretion. Another standard is an elaborate, case-by-case jurisprudence for us to determine what public broadcasting stations must do, and it seems to me the former might be the better.
Kelly J. Shackelford: Well, I think that an argument of editorial discretion is simply saying at their discretion, and we're saying whatever standard this Court comes up with, certainly unfettered discretion over the type of constitutional--
Speaker: Well, it isn't unfettered. I think that's unfair on your part. They've tried to set out some guidelines, and I think you're speaking a little too broadly when you say it's unfettered.
Kelly J. Shackelford: --Let me explain what I mean, Justice O'Connor. Number 1, they conceded in their own brief, and they certainly know this, that their decision was a subjective one. Number 2--
Speaker: What does the word subjective mean as you're using it now?
Kelly J. Shackelford: --It means that they were appraising facts, using discretion, coming to conclusions--
Speaker: Well, how else would you plan a broadcast?
Kelly J. Shackelford: --You could set clearly tangible criteria that... that where courts of appeals could simply look and see uniform application of a rule whether the candidate met the criteria instead of having to comb through the record--
Speaker: Well, but, you know, you're saying that the public broadcasting stations could do this, and perhaps they could, but does the Constitution require them to do it just to make it easier for a court of appeals to avoid combing through the record?
Kelly J. Shackelford: --No. I think the Constitution does require them to do it under... a number of... even under its licensing cases the Court has said that it cannot vest unfettered discretion in a Government official over speech and this is more critical--
Speaker: Well, okay, but if this is like a licensing case we get entirely apart from the election, then, what about the University of Virginia planning a lecture series on political philosophy?
Kelly J. Shackelford: --Well, obviously we have a number of different aspects that--
Speaker: Well, but if you once get away from your election context to a license for a speech, which is what you're talking about now, that, too, is in a much different context than broadcasting.
Kelly J. Shackelford: --We're talking about two different things, I think, probably. Number 1, what we're saying is in a particular and unique forum of candidate debates standardless discretion is not allowed in Government. But second, if we go to the forum analysis, which is what, Mr. Chief Justice, you were referring to, under a forum analysis, again, as this Court has said, not only is the debate a forum, it is what this Court has used to describe what a forum is. The only question therefore really is the limitations of the forum, and I apologize, this is not in the brief. I just finally understood this last night. What the Government is actually doing here is, they are putting as their limit to a limited forum a subjective determination. That allows them to create a forum and then later when particular speakers arise to enter the forum, they use their subjective decisionmaking to exclude them.
Speaker: Well, but what's wrong with what the Government says, and there may be a lot wrong, but they say they may not invidiously discriminate? Now, that takes some of the subjectivity out of it.
Kelly J. Shackelford: Well, number 1, I don't know how they can actually say that. AETN is working as a State actor. If they're a State actor, they're not bound... I mean, they're saying they're a private actor. If they're a private actor they're not bound by the Constitution, they can engage in viewpoint discrimination, they can endorse candidates--
Speaker: Well, let's assume that we think the station is a State actor, all right? Let's make that assumption.
Kelly J. Shackelford: --Then if they're a State actor what we have is a case that almost exactly fits this Court's case in Southeastern Productions in which Chattanooga created a forum of a theatre. In this case, they created... the Government created a forum for the debate. Then, the speakers were placed in that theatre. In this case there was... it was candidates in this debate. Then what happened is, when Hair was drawn in, they said, well, our forum is limited, however. It's limited to plays which are in the best interests of the community. In this case, in the reply brief, the petitioner says our standard was, was it in the best interest of the community?
Speaker: I thought Southeastern Promotions was more of a procedural case than a substantive--
Kelly J. Shackelford: It's just a forum analysis, and what they do is, once you realize you're in a real forum, which you are here, the Government cannot come up with this type of discretionless standard that at best, again, unfettered discretion of Government officials, subjective... what they say is subjective determination.
Speaker: --But I take it-- --Mr. Shackelford, I understand that you're not asking this Court to come up with a code. What you are saying, I thought, was that there must be a set of rules in place, as they are for public financing of campaigns, as there are for standards of who will have access to the town hall, but those standards must be there not for the Court to invent, but for the Court to review for adequacy once they're put in place by--
Kelly J. Shackelford: That's what we're saying. At the very first level we know that the Government cannot engage in a subjective determination, picking and choosing amongst the candidates--
Speaker: --Okay, but if it had defined public interest, or here, if it had defined viability, or... I forget what the alternative criterion was here... would any definition do as long as we know it in advance?
Kelly J. Shackelford: --No. I think it was a twostep analysis.
Speaker: All right. What's the second step?
Kelly J. Shackelford: The first step is objective criteria, and the second step is it has to meet the constitutional safeguards--
Speaker: Yes, but that's the question. What are the constitutional safeguards it's got to meet? What is the substance of the second step?
Kelly J. Shackelford: --I think with the ballot access. It's probably the closest thing that we have that deals with the election process, and the standards that I see in there are not necessarily bright lines the Court has said, but it's okay to require a modicum of support. It's not okay to simply entrench the major parties and throw out the minority.
Speaker: You use ballot access and it varies widely from State to State, because in some States it's very easy to get on the ballot and in other States it's harder to get on the ballot.
Kelly J. Shackelford: I think the interesting thing about ballot access is it's respectful of the people's wishes. They have put forward in their legislature this is what we consider a serious candidate, and to allow another Government agency in that State to say, we don't care what you think is a serious candidate, we're going to exclude your candidate from the debate and confer powerful Government benefits to his opponents--
Speaker: Well, you're really saying that if you have a public... if you have a ballot access law, that is a good indication of what an objective standard would be, and if you vary from that, you're not perhaps necessarily treading into unconstitutionality, but you're certainly raising a serious question. Is that as far as you go?
Kelly J. Shackelford: --Certainly ballot access would be sufficient, and in fact that was the only objective standard laid out in this case, and Mr. Forbes met it.
Speaker: --that is not the reference that I was thinking of. I'm thinking of pages 5 and 6 of the Solicitor General's brief. I'm thinking of the probable problems that arise with the private stations and the equal opportunity requirement. I'm thinking of the FCC's effort to deal with that identical problem in that statutory contest in the private sector, and they've come up with a set of workable rules, I take it, for the identical problem which is described here as, if you'll recognize an exemption, i.e., for the comparable... only your broadcasting decisions rest on a reasonably good faith journalistic effort.
Kelly J. Shackelford: Your Honor--
Speaker: Yes, yes. What I want to know is, why wouldn't that work?
Kelly J. Shackelford: --Number 1, the FCC standards are there in private and public broadcasting, so it wouldn't be something... it wouldn't be--
Speaker: Well obviously you won't even have that FCC effort to deal with this very problem, why is that effort not constitutional, moving it into our constitutional province?
Kelly J. Shackelford: --Number 1, because the idea that an individual can exercise their First Amendment rights in a different place at a different time has never been held as a sufficient basis for denying their rights and ignoring the law. For instance, that argument, if it were used in Brown versus Board of Education, would tell African-American parents they can go to a private school. In this case, the forum was a debate. The speaker cannot be excluded on the basis that they could speak at some other time, some other place. It's certainly not sufficient under the Constitution. Southeastern Productions says this--
Speaker: Well, maybe the fact too that the FCC isn't authorize to fill in blanks in the Constitution. Well, they have a comparable problem. They have a statute which imposes the same kind of obligation on a private person as the Constitution imposes on a public person. To deal with that problem they come up with workable standards.
Kelly J. Shackelford: --They might be workable, but we say they're certainly not constitutional--
Speaker: So you're saying that if the FCC rules in a public contest it's a constitutional--
Kelly J. Shackelford: --Right. Certainly what they have here is not sufficient for Government broadcasting. The FCC has made clear its approach is to give unfettered discretion to all of its broadcasters, and so essentially what we have in the question is... and I think the context we have is, a broadcasting industry is a Government monopoly which is run by the FCC. Two-thirds of the licenses given out are given out to Government licensees.
Speaker: --But I'm concerned that what you're asking in this case is for us to confine editorial discretion in a corporate broadcasting station, and I suppose you'd be quite satisfied, because you could win your case, if we said that we will confine that discretion when elections are involved.
Kelly J. Shackelford: I think--
Speaker: But I'm not sure if there is a principled line in our precedent that will allow us to make that conclusion, or you to make that argument.
Kelly J. Shackelford: --I think there is, in that there are aspects in this particularized forum that do not exist in any other forum, and therefore it has to extrapolate from this type of forum to a forum that does involve elections, that does involve candidates. We would be in a completely different analysis... it may involve speech elements, but it wouldn't involve other voter's rights elements.
Speaker: And yet in one sense editorial discretion is most important when we are involved with elections.
Kelly J. Shackelford: Well, certainly not in Government editorial discretion, in the way it interposes itself into the election process, possibly skews the debates. For instance, excluding minority candidates has more than one effect. Maybe that minority candidate is going to be our Congressman in 2 months. Maybe they're going to change the election as well for some of the other candidates, or I think the most important, maybe the ideas they express are going to be the ones around which the entire campaign is focused. So if we allow this type of discretion in excluding minority candidates, it will be a direct attack on the whole idea of--
Speaker: You know, except that I think at the same time you are agreeing that if the Government station decides instead of having a debate simply to have an interview by its political news anchor, it can choose to interview anyone it wants to. Is that your position?
Kelly J. Shackelford: --It's certainly a far step away from our case.
Speaker: But what's the answer to my question? On your theory, is that allowed?
Kelly J. Shackelford: I think it would depend upon the facts. If what we have--
Speaker: Well, what facts would be significant?
Kelly J. Shackelford: --I think number 1, whether there's a case for a face-to-face candidate discussion going on, that will bring out that answer--
Speaker: So what you're really saying is, the Government up to a point sets its own terms. If the Government says, we're going to bring people before you so that you can hear them, then they are bound by something like forum analysis. If they don't say that, and they say, in essence, we're going to bring people before you whom we like, we endorse, it's not bound by forum analysis?
Kelly J. Shackelford: --Well, I don't know whether bound by--
Speaker: Is that a fair characterization of what you're saying?
Kelly J. Shackelford: --What I'm saying is, there's a line, and I don't know that I can draw the line exactly between when it leaves Government speech and becomes a nonpublic forum. I think when they begin to involve private speakers, that is the first time the First Amendment might begin to come into play, but certainly when they get as far across the line as they are in the current case, with a candidate-Government debate, it is very clearly a limited public forum, and I don't think there will be any question about that.
Speaker: Mr. Shackelford, suppose the Court were to determine that the standards that Ms... whatever, that those were all okay standards, the problem was that she made them up, or came up with them after, and that under those standards your candidate would flunk, so you're in this at this point for the money because the election is long over, would you be entitled to any relief if the standards that she announced are okay, the only problem with them was that they weren't in place when your candidate asked to be part of the debate?
Kelly J. Shackelford: I think we would still be entitled to relief. Because, a good example was the Southeastern Productions case. In that case, the play had already been declared obscene in a criminal action, and so, but then the Court didn't even get to that issue. What they said was, use of unfettered discretion itself is enough of a constitutional violation.
Speaker: Thank you, Mr. Shackelford. Mr. Marks, you have 2 minutes remaining.
Richard D. Marks: Mr. Chief Justice, and may it please the Court: Ballot qualification is, is an arbitrary standard. It's both over-and under-inclusive, and it simply wouldn't work. That's why editorial judgment is an essential element in this enterprise. You can't run a news organization without engaging in editorial discretion.
Speaker: How about standards like for public financing?
Richard D. Marks: I think, Your Honor, that the public financing standards that the FC, the FEC, Federal Elections Commission has asked for, even though their objectives are--
Speaker: Is editorial discretion... can it be subject to objective standards?
Richard D. Marks: --No, Your Honor, it can't. It has to... the problem, Justice Ginsburg with your... with relying on Federal Election Commission standards, because any time there's a list of standards, there's going to be a weighing and balancing, and it will be subject to some subjectivity in that mix.
Speaker: But don't you think that there's a guarantee present when you see the list, and you say, okay, I have to meet this list, then when there is no list, and then after they turn you down they say, these are the reasons?
Richard D. Marks: No, Your Honor, I don't. This is not an algorithm, and using the newsworthiness standard there's always an opportunity, if somebody doesn't want to use the newsworthiness standard, wants to discriminate, there's always opportunity to manipulate those factors. In fact, in answer to Justice Breyer's question about the FCC's standards that have been quoted here, because those standards in fact in the second prong of the test for an exemption forbid viewpoint discrimination.
William H. Rehnquist: Thank you, Mr. Marks. The case is submitted.