The Supreme Court held that a third-party congressional candidate did not have a First Amendment right to participate in a public television-sponsored candidate debate in Arkansas Educational Television Commission v. Forbes, 118 S. Ct. 1633 (1998). The case was hailed by members of the public broadcasting community as vindication of their journalistic standing, granting the power to make independent editorial judgments free from constitutionally mandated access requirements.

   In this case, the state-owned public broadcasting network had invited only the major party candidates to participate in the debate, excluding independent candidate Ralph Forbes. The U.S. Court of Appeals for the Eighth Circuit had held that the debates were a designated public forum and that Forbes had a First Amendment right of access as a legally qualified candidate for Congress.

   The constitutional issue addressed by the Supreme Court in Forbes was whether a candidate debate sponsored by a state-licensed public broadcast station is a "public forum." Generally, citizens have a First Amendment right of access to property that is considered a public forum. Over the years, the courts have devised three categories in which public property may be grouped for forum analysis: (1) the traditional public forum, such as streets, sidewalks, and public parks, in which members of the public generally have a right to engage in speech activities; (2) the designated public forum, such as university meeting rooms, which have been intentionally opened for expressive purposes for identified groups (e.g., student organizations); and (3) the non-public forum, such as an intra-school mail system, which has not been generally opened to the public for communicative purposes. The level of access required for outside groups depends on which type of forum the property is considered to be, if indeed it is a public forum at all.

Supreme Court Holding

   In Forbes, the Supreme Court held that public broadcast stations generally should not be considered public fora. It noted that "broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations." Forbes, 118 S. Ct. at 1639. However, it also concluded that "[t]he special characteristics of candidate debates support the conclusion that the ... debate [at issue in that case] was a forum of some type." Id. at 1640-41. It described such debates as a "narrow exception to the rule" that programming on public stations is not subject to public forum analysis because "the debate was by design a forum for political speech by the candidates," the views expressed were those of the candidates, and the purpose of the debate was "to allow the candidates to express their views with minimal intrusion by the broadcaster."

   On the facts of Forbes, the Court found that the AETN debate was a non-public forum rather than a designated public forum because the Arkansas network did not create an open-microphone format available to all candidates; it expressly restricted debate access to "newsworthy" candidates based on its independent news judgment; and it did not invite or exclude candidates based on their political viewpoints. Id. at 1642. The holding in Forbes does not require state-licensed public broadcasters to employ pre-established, objective criteria by which to determine candidate eligibility for debates. However, since debates sponsored by state-licensed entities are "a forum of some type," the Court considered the nature and context of the programming at issue to be important factors.

   The Court focused on the fact that the candidate debate in question was a news program and the participants were selected on the basis of their newsworthiness. It found the licensee's selection of candidates to be reasonable to the extent it was based on such factors as voters' assessments of the candidates (e.g., public opinion polls), the extent of news media coverage of the various candidates, their inclusion in election reports, their level of financial support, the extent to which candidates had formal campaign organizations, headquarters, and/or volunteers, and the overall extent of public interest in the candidacies. The Court suggested other indicia of reasonableness for selecting participants, such as the amount of time available for the debate compared to the total number of candidates. Id. at 1643.

   In a related case, the U.S. Court of Appeals for the Eighth Circuit treated a news interview program as if it were a debate. Marcus v. Iowa Public Television, 97 F.3d 1137 (8th Cir. 1996). Although the court treated the news interview as a limited public forum, it upheld the broadcaster's decision to invite only the major party candidates to participate. Following the Supreme Court's decision in Forbes, the Eighth Circuit reaffirmed this conclusion. Marcus v. Iowa Public Television, 150 F.3d 924 (8th Cir. 1998) (en banc), cert. denied, 67 U.S.L.W. 3323 (U.S. Jan. 11, 1999). Still, the Marcus case leaves open the possibility that some news programs on public television stations may be considered "debates" for purposes of forum analysis.