Arkansas Educational Television Commission v. Forbes

PETITIONER: Arkansas Educational Television Commission
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

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.


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?

Media for Arkansas Educational Television Commission v. Forbes

Audio Transcription for Oral Argument - October 08, 1997 in Arkansas Educational Television Commission v. Forbes

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--


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:


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:


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.