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Constitution vs Bureaucrats: It's Free Speech Fight, Forbes Tells The Media

  • Who decides who qualifies for First Amendment rights? The Supreme Court heard arguments in a historic case October 8.
By James P. Tucker, Jr.

The Supreme Court is weighing a decision that could have significant political impact by giving third party candidates the right to participate in debates conducted by public broadcasting.

If the court accepts Ralph Forbes's argument that he was unfairly barred from a public television debate when he was running for Congress as an independent in 1992, it will strengthen the position of third part candidates everywhere in the nation.

Forbes contends taxpayer dollars cannot be used by public broadcasting to conduct debates that exclude independent or third party candidates who are on the ballot.

Congress has budgeted $300 million for the corporation for Public Broadcasting to distribute to the nation's public radio and TV stations.

The court's decision, which, which could come anywhere from two to six months from now, would have no effect on privately owned broadcast outlets.

If Forbes prevails, as he did in the lower courts, it would mean, for example, that a Ross Perot could not be excluded by public broadcasting in AD 2000, as he was from the debates in 1996.

When Forbes filed his original complaint he gave it the caption: "Forbes vs The Arrogant, Orwellian Bureaucrats of the AETN; The Crooked Lying Politicians; and The Special Interests."

Forbes said the support he received was overwhelming. "I've had this grassroots reaction in courts from people who understand the issues," he said, "but this is the Supreme Court. Until you've been there,' he told The SPOTLIGHT. "You can't imagine how awesome this is.'

Had Forbes been elected in his Little Rock, Arkansas district, he would have been President Bill Clinton's congressman.

The questioning by the justices indicated they looked favorably on Forbes's argument, his lawyer, Kelly Shackelford, said after the hearing.

"They peppered the other side a lot harder than us, and they seemed to like our answers better," Shackelford said from the steps of the Supreme court.

"There are some things that private broadcasters can do and you cannot," Justice Antonin Scalia told a lawyer for the state-run TV network AETN, suggesting the exclusion of third parties may be one of the forbidden things.

Richard Marks, lawyer for the Arkansas Educational Television Commission, argued that "editorial judgment is essential" for the station to conduct debates and decide who to include.

Justice David Souter asked whether reliance on what Marks called "the principles of mainstream journalism" was another way of saying that "a distinctly minority candidate always loses."

Justice Anthony Kennedy asked whether editorial discretion could ever be subject to objective standards and Marks said no.

"Could they announce: 'We don't want you to vote for Forges; don't waste your vote'"? Justice John Paul Stevens asked Marks.

Although the federal government was not a party to the case, Deputy Solicitor General Lawrence Wallace was allowed to argue in favor of allowing taxpayer-funded broadcasters to gag candidates.

"So long as it's a government program, being put on for the benefit of the public, the government can choose who shall be participants," Wallace said.

That does not make the event a public forum, Wallace claimed, causing some justices to exhibit amazement.

"Well, a candidate debate is sort of exactly that," Justice Sandra Day O'Connor responded. Why isn't that a public forum?"

Justices O'Connor and Ruth Bader Ginsberg said criteria for participation in debates should be made clear in advance.