Arkansas Educational Television Commission v. Forbes

PETITIONER:Arkansas Educational Television Commission
RESPONDENT:Forbes
LOCATION:Randon Bragdon’s Dental Office

DOCKET NO.: 96-779
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 523 US 666 (1998)
ARGUED: Oct 08, 1997
DECIDED: May 18, 1998

ADVOCATES:
Kelly J. Shackelford – Argued the cause for the respondent
Lawrence G. Wallace – On behalf of the United States, as amicus curiae
Richard D. Marks – Argued the cause for the petitioner

Facts of the case

During the 1992 race for Arkansas’ Third Congressional District, the Arkansas Educational Television Commission (AETC) — a state-owned public television broadcaster — sponsored a debate between the major party candidates. Running as an independent candidate with little popular support, Ralph Forbes sought to participate in the debate but was denied permission. After unsuccessfully challenging AETC’s refusal in district court, Forbes appealed and won a reversal. AETC then appealed and the Supreme Court granted certiorari.

Question

Is the exclusion of a ballot-qualified candidate from a debate sponsored by a state-owned public television broadcaster a violation of the candidate’s First Amendment right to freedom of speech?

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?

Kelly J. Shackelford:

–Well, the ballot access… the ballot access–

Richard D. Marks:

The answer to the second question is yes, and the answer to the first question is yes.

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.

Richard D. Marks:

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.

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.

Richard D. Marks:

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.

Kelly J. Shackelford:

Certainly they weren’t–

Don’t you think private broadcasters might think those elements were desirable, or–

Well–

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–

Kelly J. Shackelford:

–Certainly they weren’t allowing Government officials to simply look and say we’ll give this party this–

–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.

–Well, but they–

It may be very responsible.

–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?

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.

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.

You wouldn’t allow an endorsement of a candidate to proceed on that basis.

Kelly J. Shackelford:

They can use objective criteria that might favor individual parties–

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–

Like the ones who qualifies to get public money for campaigns?

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?

That’s going to leave out some minority candidates.

Don’t waste your time listening to him, or voting for him, concentrate on the two major candidates?

Kelly J. Shackelford:

–Right.

In other words, a reverse–

Kelly J. Shackelford:

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.

Richard D. Marks:

–With–

Kelly J. Shackelford:

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.

–A disendorsement of him.

Kelly J. Shackelford:

They simply won’t wish that–

Richard D. Marks:

–With section 399 not there, Your Honor?

Well–

Yes.

Kelly J. Shackelford:

–That’s why they ask the Court today for unfettered discretion to simply pick and choose.

Richard D. Marks:

With the prohibition not there?

–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?

Richard D. Marks:

I still believe that there’s an equal protection boundary for a State-owned broadcaster in that area.

That’s objective.

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?

It doesn’t name the Republicans or the Democrats, and it would bump your candidate, wouldn’t it?

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–

Kelly J. Shackelford:

I think this Court’s ballot access cases invoke the theory that guarantees the parties some sort of–

Well then, why isn’t what you did viewpoint discrimination?

No, we don’t care which one it is.

Richard D. Marks:

–Because in–

It just has to be one of the first two parties in the last election.

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.

It could be the Bull Moose Party as far as we’re concerned.

Richard D. Marks:

–The guiding principles are certainly in writing, and there are two levels, the guidelines–

[Laughter]

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?

That’s the problem with the standard.

Richard D. Marks:

–That’s right, Your Honor.

It is difficult to form a standard.

Richard D. Marks:

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.

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?

Richard D. Marks:

Now, it seems to me that–

Kelly J. Shackelford:

–Well, the standard that the Government has actually chosen under the FEC is actually that of preestablished subjective criteria.

Isn’t that simply a way of saying that the distinctly minority candidate always loses?

Well, all right.

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?

If in fact, would that be a possible standard?

The viewpoint is unpopular.

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.

Richard D. Marks:

–There are two reasons, Justice Souter.

Kelly J. Shackelford:

Well, obviously we don’t think that the Constitution is somehow overridden by the FCC–

Richard D. Marks:

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.

No, obviously not.

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?

The constitutional problem here is to find a standard.

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.

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?

Richard D. Marks:

They felt it was–

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–

May I return to Justice O’Connor’s question about what these standards of newsworthiness were?

If, in fact, we follow the Congress and the congressional FCC standard in the area, how does that affect your model?

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?

Kelly J. Shackelford:

–Well, if we’re talking about the FCC, I assume there is no standard.

Generally in this area, hasn’t the Court required at least that there be clear standards written down going in?

Kelly J. Shackelford:

They… what both Government agencies, the Federal and State said today is they think have unfettered–

Richard D. Marks:

–Not in a nonpublic forum, Your Honor, and certainly not under a League of Women Voters structural analysis.

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.

Richard D. Marks:

If you… I don’t think that we require that… I don’t think this Court’s cases require–

I thought they came up with legislation designed to deal with this?

I don’t know about the League of Women Voters, but we are talking about whatever else they are, they are Government actors.

Isn’t there a law or an FCC rule that deals with this in the case of national television debates?

Richard D. Marks:

–Let’s… let me address that in terms of Polk County.

Kelly J. Shackelford:

–Not that I’m aware of… that deals with any FCC criteria of how to pick their candidates.

Richard D. Marks:

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.

Kelly J. Shackelford:

I think they are seeking unfettered editorial discretion of the stations.

Richard D. Marks:

She is exercising independent professional judgment.

That’s one of the standards.

Richard D. Marks:

This is essentially a private press function.

We have a whole universe of choices, I suppose, based on our interpretation of the Constitution.

Richard D. Marks:

She’s not dependent on the State’s coercive power here.

One standard is editorial discretion.

Richard D. Marks:

She’s not doing this out of loyalty to the State.

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.

If you have integrity, you’re not a State actor?

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–

Is that the principle that you’re trying to–

Well, it isn’t unfettered.

[Laughter]

I think that’s unfair on your part.

Could she refuse to allow someone on account of their race–

They’ve tried to set out some guidelines, and I think you’re speaking a little too broadly when you say it’s unfettered.

Richard D. Marks:

No, Your Honor.

Kelly J. Shackelford:

–Let me explain what I mean, Justice O’Connor.

–Clearly she’s a State actor in that sense.

Kelly J. Shackelford:

Number 1, they conceded in their own brief, and they certainly know this, that their decision was a subjective one.

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.

Kelly J. Shackelford:

Number 2–

Richard D. Marks:

It’s not as if the… not as if she’s out there on a chartless sea.

What does the word subjective mean as you’re using it now?

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.

Kelly J. Shackelford:

–It means that they were appraising facts, using discretion, coming to conclusions–

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–

Well, how else would you plan a broadcast?

Well, who said it was a nonpublic forum?

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–

I thought that was what we had to decide, and here the station chose to open up a debate to selected candidates.

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?

I mean, that sounds a lot like a limited public forum to me, not a nonpublic forum.

Kelly J. Shackelford:

–No.

I guess we have to resolve that, don’t we?

Kelly J. Shackelford:

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–

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.

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?

Do you think selectivity alone means that it can’t be a limited public forum?

Kelly J. Shackelford:

–Well, obviously we have a number of different aspects that–

Richard D. Marks:

I think that in–

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.

I hadn’t thought so.

Kelly J. Shackelford:

–We’re talking about two different things, I think, probably.

What do you rely on for that?

Kelly J. Shackelford:

Number 1, what we’re saying is in a particular and unique forum of candidate debates standardless discretion is not allowed in Government.

Richard D. Marks:

–Well, I’m… I’m not sure I understand your question, Justice–

Kelly J. Shackelford:

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.

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?

Kelly J. Shackelford:

The only question therefore really is the limitations of the forum, and I apologize, this is not in the brief.

Richard D. Marks:

–We determine it based on Cornelius, which set the starting point–

Kelly J. Shackelford:

I just finally understood this last night.

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.

Kelly J. Shackelford:

What the Government is actually doing here is, they are putting as their limit to a limited forum a subjective determination.

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.

Kelly J. Shackelford:

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.

Excuse me.

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?

We can’t hear very well right now.

Now, that takes some of the subjectivity out of it.

I–

Kelly J. Shackelford:

Well, number 1, I don’t know how they can actually say that.

–You’re speaking quite clearly but I think it’s the microphone.

Kelly J. Shackelford:

AETN is working as a State actor.

I think the microphone isn’t working.

Kelly J. Shackelford:

If they’re a State actor, they’re not bound… I mean, they’re saying they’re a private actor.

It’s not your problem.

Kelly J. Shackelford:

If they’re a private actor they’re not bound by the Constitution, they can engage in viewpoint discrimination, they can endorse candidates–

It’s not working.

Well, let’s assume that we think the station is a State actor, all right?

So you’ll have to speak up, I’m afraid.

Let’s make that assumption.

Richard D. Marks:

I can do that.

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.

Richard D. Marks:

Can you hear me now?

Kelly J. Shackelford:

In this case, they created… the Government created a forum for the debate.

Yes, very well.

Kelly J. Shackelford:

Then, the speakers were placed in that theatre.

Very well.

Kelly J. Shackelford:

In this case there was… it was candidates in this debate.

Richard D. Marks:

Justice O’Connor, the answer to the Cornelius question is, what was Ms. Howart’s intent?

Kelly J. Shackelford:

Then what happened is, when Hair was drawn in, they said, well, our forum is limited, however.

Richard D. Marks:

What was the AETN’s intent?

Kelly J. Shackelford:

It’s limited to plays which are in the best interests of the community.

Richard D. Marks:

The intent is key in both the structural analysis of the reading of the League of Women Voters, and on the–

Kelly J. Shackelford:

In this case, in the reply brief, the petitioner says our standard was, was it in the best interest of the community?

Well, when you say intent, Mr. Marks, you mean, what was the intent of the person planning the program?

I thought Southeastern Promotions was more of a procedural case than a substantive–

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?

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.

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.

–But I take it–

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.

–Mr. Shackelford, I understand that you’re not asking this Court to come up with a code.

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.

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–

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.

Kelly J. Shackelford:

That’s what we’re saying.

Richard D. Marks:

He was an ineffective candidate.

Kelly J. Shackelford:

At the very first level we know that the Government cannot engage in a subjective determination, picking and choosing amongst the candidates–

Richard D. Marks:

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.

–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?

Richard D. Marks:

If I may, Mr. Chief Justice, I would like to reserve–

Kelly J. Shackelford:

–No.

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.

Kelly J. Shackelford:

I think it was a twostep analysis.

What was the nature of this debate?

All right.

Richard D. Marks:

–Your Honor, you will find a discussion of the debate in the motion for summary judgment that was filed.

What’s the second step?

But I’ve looked at that, of course, and I can’t figure it out just on the basis of that.

Kelly J. Shackelford:

The first step is objective criteria, and the second step is it has to meet the constitutional safeguards–

Richard D. Marks:

In Mr. Simmons affidavit–

Yes, but that’s the question.

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?

What are the constitutional safeguards it’s got to meet?

Richard D. Marks:

–It was an hour, actually it was 53 minutes time for the candidates.

What is the substance of the second step?

Richard D. Marks:

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.

Kelly J. Shackelford:

–I think with the ballot access.

And how many journalists were there and how did they work out their questions?

Kelly J. Shackelford:

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.

Richard D. Marks:

They were selected from Associated Press groups of editors and reporters who asked their own questions.

Kelly J. Shackelford:

It’s not okay to simply entrench the major parties and throw out the minority.

Mr. Marks–

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.

–Thank you, Mr. Marks.

Kelly J. Shackelford:

I think the interesting thing about ballot access is it’s respectful of the people’s wishes.

Mr. Wallace, we’ll hear from you.

Kelly J. Shackelford:

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–

Lawrence G. Wallace:

Thank you, Mr. Chief Justice, and may it please the Court:

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.

Lawrence G. Wallace:

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.

Is that as far as you go?

Lawrence G. Wallace:

Viewpoint neutrality is not required, because forum analysis does not apply to the Government’s own expressive presentations to the public.

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.

Lawrence G. Wallace:

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–

–that is not the reference that I was thinking of.

Well, a candidate debate is sort of exactly that.

I’m thinking of pages 5 and 6 of the Solicitor General’s brief.

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’m thinking of the probable problems that arise with the private stations and the equal opportunity requirement.

I mean, why isn’t that a public forum?

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.

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?

Kelly J. Shackelford:

Your Honor–

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.

Yes, yes.

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.

What I want to know is, why wouldn’t that work?

This other party is an irresponsible party.

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–

You think a Government station can do that?

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?

Lawrence G. Wallace:

Well, the Government… the Communications Act prohibits–

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.

Well, we’re not talking about the Communications Act, Mr. Wallace, you know.

Kelly J. Shackelford:

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.

We’re talking about the Constitution.

Kelly J. Shackelford:

In this case, the forum was a debate.

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.

Kelly J. Shackelford:

The speaker cannot be excluded on the basis that they could speak at some other time, some other place.

This other party is irresponsible.

Kelly J. Shackelford:

It’s certainly not sufficient under the Constitution.

You think the Government can do that?

Kelly J. Shackelford:

Southeastern Productions says this–

I don’t.

Well, maybe the fact too that the FCC isn’t authorize to fill in blanks in the Constitution.

Lawrence G. Wallace:

–Well, an incumbent running for reelection can espouse his own political cause.

Well, they have a comparable problem.

Oh, he’s not speaking as a Government official when he does that.

They have a statute which imposes the same kind of obligation on a private person as the Constitution imposes on a public person.

Lawrence G. Wallace:

Well, he may work that into his official statement.

To deal with that problem they come up with workable standards.

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.

Kelly J. Shackelford:

–They might be workable, but we say they’re certainly not constitutional–

Lawrence G. Wallace:

Well, that is our point.

So you’re saying that if the FCC rules in a public contest it’s a constitutional–

But the Attorney General can do it?

Kelly J. Shackelford:

–Right.

You think the Attorney General can come out and say, ladies and gentlemen, I want you to consider voting Republican.

Kelly J. Shackelford:

Certainly what they have here is not sufficient for Government broadcasting.

You know, the Government’s paying for the radio time, and the Attorney General can come out and say that?

Kelly J. Shackelford:

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.

I find that astounding.

Kelly J. Shackelford:

Two-thirds of the licenses given out are given out to Government licensees.

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.

–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.

Lawrence G. Wallace:

It may be something we would consider improper–

Kelly J. Shackelford:

I think–

Do you lose this case if this is a designated public forum?

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.

Lawrence G. Wallace:

–Not at all.

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.

Lawrence G. Wallace:

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.

Kelly J. Shackelford:

We would be in a completely different analysis… it may involve speech elements, but it wouldn’t involve other voter’s rights elements.

Lawrence G. Wallace:

It is commonplace for non-Government participants to enrich Government expressive presentations.

And yet in one sense editorial discretion is most important when we are involved with elections.

Lawrence G. Wallace:

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–

Kelly J. Shackelford:

Well, certainly not in Government editorial discretion, in the way it interposes itself into the election process, possibly skews the debates.

None of those are nonpublic forum?

Kelly J. Shackelford:

For instance, excluding minority candidates has more than one effect.

Lawrence G. Wallace:

–Those are not forums at all.

Kelly J. Shackelford:

Maybe that minority candidate is going to be our Congressman in 2 months.

Lawrence G. Wallace:

Those are Government presentations.

Kelly J. Shackelford:

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.

Lawrence G. Wallace:

They’re a form of publishing by the Government.

Kelly J. Shackelford:

So if we allow this type of discretion in excluding minority candidates, it will be a direct attack on the whole idea of–

Lawrence G. Wallace:

They don’t give rise to a right of access under the First Amendment by other people who would like to use–

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.

Well, I think it’s rather dangerous to say that at a commencement address the Government is the speaker.

Is that your position?

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–

Kelly J. Shackelford:

–It’s certainly a far step away from our case.

But you can reach that conclusion without saying the licensed entity is a Government speaker.

But what’s the answer to my question?

Lawrence G. Wallace:

–Well, the… if you once start applying forum analysis that… it gives access rights to a Government publication and their speech.

On your theory, is that allowed?

Lawrence G. Wallace:

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?

Kelly J. Shackelford:

I think it would depend upon the facts.

Probably not, but nonpublic forum analysis is quite capable of making that distinction.

Kelly J. Shackelford:

If what we have–

Lawrence G. Wallace:

Well, but we think that the principles that apply in news broadcasting are doing the same thing.

Well, what facts would be significant?

Lawrence G. Wallace:

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.

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–

Lawrence G. Wallace:

This is part of the Government’s own presentation.

So what you’re really saying is, the Government up to a point sets its own terms.

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?

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.

Are you talking about anything that’s peculiar to radio/television?

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?

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.

Kelly J. Shackelford:

–Well, I don’t know whether bound by–

Lawrence G. Wallace:

It’s a much more… it’s a much closer case.

Is that a fair characterization of what you’re saying?

Why?

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.

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.

Kelly J. Shackelford:

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.

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.

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?

Lawrence G. Wallace:

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.

Kelly J. Shackelford:

I think we would still be entitled to relief.

Lawrence G. Wallace:

It can make the same judgment about how a debate–

Kelly J. Shackelford:

Because, a good example was the Southeastern Productions case.

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?

Kelly J. Shackelford:

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.

Lawrence G. Wallace:

–Well, there are rules that apply under the Communications–

Kelly J. Shackelford:

What they said was, use of unfettered discretion itself is enough of a constitutional violation.

No.

Thank you, Mr. Shackelford.

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?

Mr. Marks, you have 2 minutes remaining.

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.

Richard D. Marks:

Mr. Chief Justice, and may it please the Court:

And it doesn’t need any kind of reasons, even post hoc–

Richard D. Marks:

Ballot qualification is, is an arbitrary standard.

Lawrence G. Wallace:

It has to meet equal protection standards.

Richard D. Marks:

It’s both over-and under-inclusive, and it simply wouldn’t work.

Lawrence G. Wallace:

It cannot engage in invidious or irrational discrimination.

Richard D. Marks:

That’s why editorial judgment is an essential element in this enterprise.

–Thank you, Mr. Wallace.

Richard D. Marks:

You can’t run a news organization without engaging in editorial discretion.

Mr. Shackelford, we’ll hear from you.

How about standards like for public financing?

Kelly J. Shackelford:

Mr. Chief Justice, and may it please the Court:

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–

Kelly J. Shackelford:

I’m going to take about 30 seconds and put this in context.

Is editorial discretion… can it be subject to objective standards?

Kelly J. Shackelford:

In 1990, Ralph Forbes running for lieutenant governor received 47 percent of the State-wide vote in the Republican primary.

Richard D. Marks:

–No, Your Honor, it can’t.

Kelly J. Shackelford:

That vote included carrying 15 of 16 counties which comprised the Third Congressional District.

Richard D. Marks:

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.

Kelly J. Shackelford:

So, 2 years later, he ran for the Third Congressional District.

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?

Kelly J. Shackelford:

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.

Richard D. Marks:

No, Your Honor, I don’t.

Kelly J. Shackelford:

Days later, an unelected Government official summarily declared him a frivolous candidate and banned him from its debate for that very seat.

Richard D. Marks:

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.

Kelly J. Shackelford:

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.

Richard D. Marks:

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.

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.

William H. Rehnquist:

Thank you, Mr. Marks.

What’s your answer to this slippery slope?

William H. Rehnquist:

The case is submitted.

We’ll hear argument now in Number 96-779, Arkansas Educational Television Commission v. Ralph Forbes.

Kelly J. Shackelford:

I think it’s completely inaccurate.

William H. Rehnquist:

Mr. Marks.

Kelly J. Shackelford:

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.

Richard D. Marks:

Mr. Chief Justice, may it please the Court:

Kelly J. Shackelford:

It has aspects which really do not apply to any other forum.

Richard D. Marks:

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.

Kelly J. Shackelford:

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.

Richard D. Marks:

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.

Kelly J. Shackelford:

Secondly–

Well, I think not necessarily.

Well, a news… I… all right.

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.

You get your list out.

I mean, it may fall on one or the other side of the line.

Then I have a question.

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.

Kelly J. Shackelford:

–Second–

I assume here that the station was intending to let the candidates speak.

Kelly J. Shackelford:

[Laughter]

The station wasn’t trying to put words in their mouths.

Kelly J. Shackelford:

–it involves… this is I think one of the most important.

Richard D. Marks:

That’s correct, Your Honor.

Kelly J. Shackelford:

It involves more than speech.

Richard D. Marks:

In this case we are not talking about State speech.

Kelly J. Shackelford:

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.

Richard D. Marks:

We are–

Kelly J. Shackelford:

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.

No, and did the station set in advance here the rules that it eventually came up with when there was a third candidate?

Kelly J. Shackelford:

There are a number of factors–

Richard D. Marks:

–Your Honor, the rules–

May I just interrupt with this one question?

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.

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?

Richard D. Marks:

–Not exactly, Your Honor.

Kelly J. Shackelford:

–I don’t think so.

Richard D. Marks:

In fact, I think that that is not a full enough characterization of the record.

Kelly J. Shackelford:

Number 1, we would not be talking about the election process.

Richard D. Marks:

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.

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?

Richard D. Marks:

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–

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–

I thought that occurred after this third party candidate appeared and said, I want to talk, too.

Well, they certainly would run to the station just for that very reason.

Richard D. Marks:

–No, Your Honor.

They’d want people to look at them and hear what they have to say about this, because they want to get votes.

Richard D. Marks:

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.

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.

Richard D. Marks:

Now, certainly–

Kelly J. Shackelford:

The purpose of the Government station in that limited part of the program would simply be–

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?

Well, but the purpose here was not just a wide-open debate, as I understand it.

Richard D. Marks:

–Not in all its–

It was a very structured thing.

No.

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.

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.

Kelly J. Shackelford:

–Yes, but for instance the candidates were given an open microphone at the beginning and the end to express their views.

Richard D. Marks:

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.

Kelly J. Shackelford:

After each question, they were given full rein to answer those questions.

Richard D. Marks:

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.

Kelly J. Shackelford:

There was no editing of the words as they came out of their mouths by the Government.

Well, I assume that this decision was parallel to what a private network would do with a similar debate in a similar format.

Kelly J. Shackelford:

This was really not just a forum, it was actually part of the definition that this Court’s given for what a forum is.

Is that in the record, or do I just judicially know that, or is that important for the case, or–

Kelly J. Shackelford:

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.

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.

But one of the problems in applying that kind of forum analysis here is this.

–Well, I mean, other stations, privately owned stations can surely do things that your station is not allowed to.

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.

Could your station endorse a candidate?

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?

Richard D. Marks:

No, Your Honor, because of section 399 of the Communications Act.

Kelly J. Shackelford:

We have not taken that position.

Let’s assume that’s not there.

Kelly J. Shackelford:

The position we have taken is that the Government cannot subjectively pick and choose amongst the candidates.

As a constitutional matter, would your station be able to endorse a particular candidate for public office?

Kelly J. Shackelford:

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.

Richard D. Marks:

Well, Your Honor, of course that is very much not this case, and I think under–

Kelly J. Shackelford:

They could even, for instance, simply draw the names out of a hat.

Oh, I thought it was.

Kelly J. Shackelford:

For that at least would be Government neutrality.

[Laughter]

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.

Richard D. Marks:

–Not without 399, Your Honor, because the–

Do they have to give him access?

I mean, I know it’s not this case.

Kelly J. Shackelford:

No, Your… Mr. Chief Justice, I don’t think they do.

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?

Kelly J. Shackelford:

Again, you have an objective standard, set in place beforehand, a ballot access law.

Richard D. Marks:

–Under forum doctrine the answer is no, because I think to do that–

Kelly J. Shackelford:

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.

Under forum… I’m not talking about creating a forum.

Kelly J. Shackelford:

However, the Court has never said that the Government can subjectively pick and choose–

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.

Well, you want something more than–

Now, a private broadcaster can certainly do that, can he not?

–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–

Richard D. Marks:

–A private broadcaster can.

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.

But is… do you think a public broadcaster–

–Mr. Shackelford, with respect, you want something more than objectivity.

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–

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.

–Well, I would be interested in hearing you answer Justice Scalia’s question, which you haven’t done yet.

Will that satisfy you?

If the station wished to endorse a candidate, could it have done so under the Constitution, without regard to any statutory provision?

Kelly J. Shackelford:

Your Honor, there has to be two criterias.

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.

Kelly J. Shackelford:

There has to be first objectivity and the second has to be constitutional.

Under the… some equal–

Kelly J. Shackelford:

Now, if–

Richard D. Marks:

Sure, under an equal protection theory.

Ah, but it’s only the latter that we’re talking about here.

–protection doctrine, or the First Amendment?

I mean, let–

That they couldn’t do it?

[Laughter]

Richard D. Marks:

Could not.

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.

Richard D. Marks:

Could not, because I think that the… I think, Justice Scalia, that there are limits on what a State-owned broadcaster can do.

Fine, but what do you want besides objectivity?

Richard D. Marks:

I think those bounds are set by invidious discrimination–

It’s not objectivity alone.

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.

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.

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.

Kelly J. Shackelford:

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–

Richard D. Marks:

I think it’s an equal protection issue at the very least.

So you’re arguing for a standard.

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?

You want us to police these things and determine who has a modicum of support.

We look at the precise function that’s in question, i.e., the conduct of debate.

That’s your test.