Home ยป Articles ยป Case ยป Broadcasting Regulations ยป Arkansas Educational Television Commission v. Forbes (1998)

Written by John R. Vile, last updated on September 19, 2023

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In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court upheld a decision by the Arkansas Educational Television Commission to exclude a third party congressional candidate from a televised debate. In this photo, 2012 congressional candidates prepare for an unrelated debate at Arkansas Educational Television Network studios. (AP Photo/Danny Johnston)

In Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), the Supreme Court upheld a decision by the Arkansas Educational Television Commission (AETC) to exclude Ralph P. Forbes, an independent candidate for Congress, from a televised debate.

 

The ruling overturned the decision of the 8th U.S. Circuit Court of Appeals, which had ruled that the AETC had created a public forum to which all candidates should have access.

 

Court said First Amendment did not stop broadcasters from limiting programming access

 

In the Courtโ€™s opinion, Justice Anthony M. Kennedy wrote that the First Amendment did not bar โ€œthe legislative imposition of neutral rules for access to public broadcastingโ€ and that the amendment, by itself, did not compel โ€œpublic broadcasters to allow third parties access to their programming.โ€

 

Kennedy asserted that candidate debates generally lend themselves to public forum analysis and identified three areas โ€” traditional public fora, designated governmental fora, and nonpublic fora sites.

 

Court said televised debates were not a public forum

 

Kennedy placed the televised debate in the nonpublic forum category. Indeed, he thought it likely that classifying debates as public fora would be more likely to discourage speech than to encourage it since โ€œfaced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidatesโ€™ views at all.โ€

 

The fact that candidate debates fell into the category of a nonpublic forum did not give the AETC โ€œunfettered discretion.โ€ It still had no power to practice โ€œviewpoint discrimination,โ€ and its regulations must be โ€œreasonable in light of the purpose of the property.โ€

 

Kennedy believed the exclusion in this case was based on lack of public support for the candidate and thus constituted โ€œa reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.โ€

 

Dissenters thought broadcaster’s decision was too ad hoc

 

Justice John Paul Stevens wrote a dissent, which Justices David H. Souter and Ruth Bader Ginsberg joined.

 

Agreeing that the network had โ€œno โ€˜constitutional obligation to allow every candidate access toโ€™ public debates that it sponsors,โ€ Stevens thought the grounds for exclusion in this case were too ad hoc and standardless to pass constitutional muster.

 

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

 

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