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High Court to Hear Political Debate Case

Media: Justices will decide whether fringe candidates must be allowed to participate in contests televised publicly. Lawyer says broad inclusion is impractical.


WASHINGTON — Agreeing to hear an appeal from the public television industry, the Supreme Court said Monday that it will rule on whether fringe candidates have a free-speech right to appear in TV debates sponsored by state-owned stations.

Lawyers for the public broadcasters say a ruling giving candidates a free-speech right to appear could drive political programming off public channels.

"A glut of candidates often will make such programs impractical to produce," one lawyer told the high court. In some states only 25 signatures are needed to get on the ballot.

The ruling, due next year, will not directly affect stations such as KCET-TV Channel 28 in Los Angeles, which is licensed to the community and run by a nonprofit board. These stations, like commercial channels, have the editorial discretion to decide who will appear on the air.

However, in 21 states, most of them rural, the public TV network is licensed to the state and run as a state agency. Many of these state networks include dozens of local stations.

The 1st Amendment restricts the government, not private people. Last year, the U.S. appeals court in St. Louis said state-owned public TV stations are government entities and, therefore, cannot discriminate among qualified candidates when they are holding a broadcast debate.

The case began in 1992 when the Arkansas Educational Television Commission refused to allow independent candidate Ralph P. Forbes to join the Democratic and Republican candidates for a congressional seat in a televised debate.

A former member of the American Nazi Party, Forbes did not have significant backing and was not a "viable" candidate, the network said.

But Forbes filed suit, contending that the exclusion violated his free-speech rights. He won before the U.S. 8th Circuit Court of Appeals.

"We have no doubt that the decision as to political viability is exactly the kind of journalistic judgment routinely made by news people," the appeals court said. "But a crucial fact here is that the people making this kind of judgment were not ordinary journalists. They are employees of the government."

The Clinton administration and the Federal Communications Commission urged the justices to hear the case and reverse the lower court. The FCC said two-thirds of the nation's public TV stations are licensed to states.

The appeals court said a debate among candidates creates a type of "public forum" in which free speech must be allowed. The Supreme Court has used the "public forum" phrase to describe an area, such as a public park, where the government cannot allow some speakers while banning others.


But the Justice Department said a TV debate is not a public forum open to all. "A structured debate between two major candidates for a given political office . . . is a news program designed to meet the viewing needs of the licensee's broadcast community," it stated. Sponsoring a debate "does not create a right of access to every peripheral candidate who wishes to appear on television."

But a lawyer representing Forbes said the court should uphold the free-speech rights of candidates. "The government should not be in the business of picking our candidates for us," said Kelly Shackelford of the Virginia-based Rutherford Institute.

The high court will hear the case of Arkansas Educational TV vs. Forbes, 96-779, sometime next fall.

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