OCTOBER TERM, 1997
Syllabus
ARKANSAS EDUCATIONAL TELEVISION COMMISSION
v. FORBES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 96-779. Argued October 8, 1997-Decided May 18, 1998
Petitioner Arkansas Educational Television Commission (AETC), a
stateowned public television broadcaster, sponsored a debate
between the major party candidates for the 1992 election in
Arkansas' Third Congressional District. When AETC denied the
request of respondent Forbes, an independent candidate with little
popular support, for permission to participate in the debate,
Forbes filed this suit, claiming,
inter alia, that he was
entitled to participate under the First Amendment. The jury made
express findings that Forbes' exclusion had not been influenced by
political pressure or disagreement with his views. The District
Court entered judgment for AETC. The Eighth Circuit reversed,
holding that the debate was a public forum to which all
ballotqualified candidates had a presumptive right of access.
Applying strict scrutiny, the court determined that AETC's
assessment of Forbes' "political viability" was neither a
compelling nor a narrowly tailored reason for excluding him.
Held: AETC's exclusion of Forbes from the debate was
consistent with the First Amendment. Pp. 672-683.
(a) Unlike most other public television programs, candidate
debates are subject to scrutiny under this Court's public forum
doctrine. Having first arisen in the context of streets and parks,
the doctrine should not be extended in a mechanical way to the
different context of television broadcasting. Broad rights of
access for outside speakers would be antithetical, as a general
rule, to the editorial discretion that broadcasters must exercise
to fulfill their journalistic purpose and statutory obligations.
For two reasons, however, candidate debates present the narrow
exception to the rule. First, unlike AETC's other broadcasts, the
debate was by design a forum for candidates' political speech.
Consistent with the long tradition of such debates, AETC's implicit
representation was that the views expressed were those of the
candidates, not its own. The debate's very purpose was to allow the
expression of those views with minimal intrusion by the
broadcaster. Second, candidate debates are of exceptional
significance in the electoral process. Deliberation on candidates'
positions and qualifications is integral to our system of
government, and electoral speech may have its most pro-
667
found and widespread impact when it is disseminated through
televised debates. Thus, the special characteristics of candidate
debates support the conclusion that the AETC debate was a forum of
some type. The question of what type must be answered by reference
to this Court's public forum precedents. Pp. 672-676.
(b) For the Court's purposes, it will suffice to employ the
categories of speech fora already established in the case law. The
Court has identified three types of fora: the traditional public
forum, the public forum created by government designation, and the
nonpublic forum.
Cornelius v.
NAACP Legal Defense
&
Ed. Fund, Inc., 473 U. S. 788, 802.
Traditional public fora are defined by the objective
characteristics of the property, such as whether, "by long
tradition or by government fiat," the property has been "devoted to
assembly and debate."
Perry Ed. Assn. v.
Perry Local
Educators' Assn., 460 U. S. 37, 45. The
government can exclude a speaker from a traditional public forum
only when the exclusion is necessary to serve a compelling state
interest and is narrowly drawn to achieve that interest.
Cornelius, supra, at 800. Designated public fora are created
by purposeful governmental action opening a nontraditional public
forum for expressive use by the general public or by a particular
class of speakers.
E. g., International Soc. for Krishna
Consciousness, Inc. v.
Lee, 505 U. S. 672, 678
(ISKCON). If the government excludes a speaker who falls
within the class to which such a forum is made generally available,
its action is subject to strict scrutiny.
E. g., Cornelius,
supra, at 802. Property that is not a traditional public forum
or a designated public forum is either a nonpublic forum or not a
forum at all.
ISKCON, supra, at 678-679. Access to a
nonpublic forum can be restricted if the restrictions are
reasonable and are not an effort to suppress expression merely
because public officials oppose the speaker's views.
Cornelius,
supra, at 800. Pp. 677-678.
(c) The AETC debate was a nonpublic forum. The parties agree
that it was not a traditional public forum, and it was not a
designated public forum under this Court's precedents. Those cases
demonstrate,
inter alia, that the government does not create
a designated public forum when it does no more than reserve
eligibility for access to a forum to a particular class of
speakers, whose members must then, as individuals, "obtain
permission,"
Cornelius, 473 U. S., at 804, to use it.
Contrary to the Eighth Circuit's assertion, AETC did not make its
debate generally available to candidates for the congressional seat
at issue. Instead, it reserved eligibility for participation to
candidates for that seat (as opposed to some other seat), and then
made candidate-bycandidate determinations as to which of the
eligible candidates would participate in the debate. Such
"selective access," unsupported by evidence of a purposeful
designation for public use, does not create a public
668
forum, but indicates that the debate was a nonpublic forum.
Id., at 805. Pp. 678-682.
(d) AETC's decision to exclude Forbes was a reasonable,
viewpointneutral exercise of journalistic discretion consistent
with the First Amendment. The record demonstrates beyond dispute
that Forbes was excluded not because of his viewpoint, but because
he had not generated appreciable public interest. There is no
serious argument that AETC did not act in good faith in this case.
Pp.682-683.
93 F.3d
497, reversed.
KENNEDY, J., delivered the OpInIOn of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, THOMAS, and BREYER, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which SOUTER
and GINSBURG, JJ., joined,
post, p. 683.
Richard D. Marks argued the cause for petitioner. With
him on the briefs was
Alden L. Atkins.
Deputy Solicitor General Wallace argued the cause for the
Federal Communications Commission et al. as amici curiae urging
reversal. With him on the briefs were Acting Solicitor General
Dellinger, Jonathan E. Nuechterlein, William E. Kennard,
Christopher J. Wright, Daniel M. Armstrong, and C. Grey Pash,
Jr.
Kelly Shackelford argued the cause for respondent. With
him on the briefs was
John W Whitehead. *
*Briefs of
amici curiae urging reversal were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California,
Roderick E. Walston, Chief
Assistant Attorney General,
Charles W Getz TV, Assistant
Attorney General,
Edna Walz, Deputy Attorney General, and
Daniel Schweitzer, and by the Attorneys General for their
respective States as follows:
William H. Pryor, Jr., of
Alabama,
Grant Woods of Arizona,
Gale A. Norton of
Colorado,
Robert A. Butterworth of Florida,
Michael
J.
Bowers of Georgia,
Alan G.
Lance of Idaho,
Carla J.
Stovall of Kansas,
Richard P. Ieyoub
of Louisiana,
Mike Moore of Mississippi,
Joseph P.
Mazurek of Montana,
Frankie Sue Del Papa of Nevada,
Philip T. McLaughlin of New Hampshire,
Michael F.
Easley of North Carolina,
Betty D. Montgomery of
Ohio,
W A. Drew Edmondson of Oklahoma,
Hardy Myers of
Oregon,
William H. Sorrell of Vermont, and
William U
Hill of Wyoming; for the City of New York by
Paul A.
Crotty and
Leonard J.
Koerner; for the
Association of America's Public Television
669
JUSTICE KENNEDY delivered the opinion of the Court.
A state-owned public television broadcaster sponsored a
candidate debate from which it excluded an independent candidate
with little popular support. The issue before us is whether, by
reason of its state ownership, the station had a constitutional
obligation to allow every candidate access to the debate. We
conclude that, unlike most other public television programs, the
candidate debate was subject to constitutional constraints
applicable to nonpublic fora under our forum precedents. Even so,
the broadcaster's decision to exclude the candidate was a
reasonable, viewpoint-neutral exercise of journalistic
discretion.
I
Petitioner, the Arkansas Educational Television Commission
(AETC), is an Arkansas state agency owning and operating a network
of five noncommercial television stations (Arkansas Educational
Television Network or AETN). The eight members of AETC are
appointed by the Governor for 8-year terms and are removable only
for good cause. Ark. Code Ann. §§ 6-3-102(a)(1), (b)(l) (Supp.
1997), § 25-16804(b)(1) (1996). AETC members are barred from
holding any other state or federal office, with the exception of
teach-
Stations et al. by E. Barrett Prettyman, Jr., and Robert
Corn-Revere; and for the Commission on Presidential Debates by
Lewis K. Loss and William H. Briggs, Jr.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Marjorie Heins
and
Steven R. Shapiro; for the Brennan Center for Justice at
New York University School of Law by
Philip Allen Lacovara;
for Greens/Green Party USA by
John C.
Klotz; for
Eugene McCarthy et al. by
Arthur D. Goldstein; for the
Natural Law Party of the United States by
Jay B. Marcus; for
the Pacific Legal Foundation by
Sharon L. Browne and
Deborah J.
La Fetra; and for Perot '96 by
Jamin B.
Raskin and
R. Clayton Mulford.
Peter Verniero, Attorney General, and
Joseph L.
Yannotti, Assistant Attorney General, filed a brief for the
State of New Jersey as
amicus curiae.
670
ing positions. Ark. Code Ann. § 6-3-102(a)(3) (Supp. 1997). To
insulate its programming decisions from political pressure, AETC
employs an executive director and professional staff who exercise
broad editorial discretion in planning the network's programming.
AETC has also adopted the Statement of Principles of Editorial
Integrity in Public Broadcasting, which counsel adherence to
"generally accepted broadcasting industry standards, so that the
programming service is free from pressure from political or
financial supporters." App. to Pet. for Cert. 82a.
In the spring of 1992, AETC staff began planning a series of
debates between candidates for federal office in the November 1992
elections. AETC decided to televise a total of five debates,
scheduling one for the Senate election and one for each of the four
congressional elections in Arkansas. Working in close consultation
with Bill Simmons, Arkansas Bureau Chief for the Associated Press,
AETC staff developed a debate format allowing about 53 minutes
during each i-hour debate for questions to and answers by the
candidates. Given the time constraint, the staff and Simmons
"decided to limit participation in the debates to the major party
candidates or any other candidate who had strong popular support."
Record, Affidavit of Bill Simmons' 5.
On June 17, 1992, AETC invited the Republican and Democratic
candidates for Arkansas' Third Congressional District to
participate in the AETC debate for that seat. Two months later,
after obtaining the 2,000 signatures required by Arkansas law, see
Ark. Code Ann. § 7-7-103(c)(1) (Supp. 1993), respondent Ralph
Forbes was certified as an independent candidate qualified to
appear on the ballot for the seat. Forbes was a perennial candidate
who had sought, without success, a number of elected offices in
Arkansas. On August 24, 1992, he wrote to AETC requesting
permission to participate in the debate for his district, scheduled
for October 22, 1992. On September 4, AETC Executive Director Susan
Howarth denied Forbes' request, explaining that AETC had
671
"made a bona fide journalistic judgement that our viewers would
best be served by limiting the debate" to the candidates already
invited. App. 61.
On October 19, 1992, Forbes filed suit against AETC, seeking
injunctive and declaratory relief as well as damages. Forbes
claimed he was entitled to participate in the debate under both the
First Amendment and 47 U. S. C. § 315, which affords political
candidates a limited right of access to television air time. Forbes
requested a preliminary injunction mandating his inclusion in the
debate. The District Court denied the request, as did the United
States Court of Appeals for the Eighth Circuit. The District Court
later dismissed Forbes' action for failure to state a claim.
Sitting en bane, the Court of Appeals affirmed the dismissal of
Forbes' statutory claim, holding that he had failed to exhaust his
administrative remedies. The court reversed, however, the dismissal
of Forbes' First Amendment claim. Observing that AETC is a state
actor, the court held Forbes had "a qualified right of access
created by AETN's sponsorship of a debate, and that AETN must have
[had] a legitimate reason to exclude him strong enough to survive
First Amendment scrutiny."
Forbes v.
Arkansas Ed.
Television Network Foundation, 22 F.3d
1423, 1428 (CA8), cert. denied, 513 U. S. 995 (1994), 514 U. S.
1110 (1995). Because AETC had not yet filed an answer to Forbes'
complaint, it had not given any reason for excluding him from the
debate, and the Court of Appeals remanded the action for further
proceedings.
On remand, the District Court found as a matter of law that the
debate was a nonpublic forum, and the issue became whether Forbes'
views were the reason for his exclusion. At trial, AETC
professional staff testified Forbes was excluded because he lacked
any campaign organization, had not generated appreciable voter
support, and was not regarded as a serious candidate by the press
covering the election. The jury made express findings that AETC's
decision to ex-
672
clude Forbes had not been influenced by political pressure or
disagreement with his views. The District Court entered judgment
for AETC.
The Court of Appeals again reversed. The court acknowledged that
AETC's decision to exclude Forbes "was made in good faith" and was
"exactly the kind of journalistic judgment routinely made by
newspeople."
93 F.3d
497,505 (CA8 1996). The court asserted, nevertheless, that AETC
had "opened its facilities to a particular group-candidates running
for the Third District Congressional seat."
Id., at 504.
AETC's action, the court held, made the debate a public forum, to
which all candidates "legally qualified to appear on the ballot"
had a presumptive right of access.
Ibid. Applying strict
scrutiny, the court determined that AETC's assessment of Forbes'
"political viability" was neither a "compelling nor [a] narrowly
tailored" reason for excluding him from the debate.
Id., at
504-505.
A conflict with the decision of the United States Court of
Appeals for the Eleventh Circuit in
Chandler v.
Georgia
Public Telecommunications Comm'n, 917 F.2d
486 (1990), cert. denied, 502 U. S. 816 (1991), together with
the manifest importance of the case, led us to grant certiorari.
520 U. S. 1114 (1997). We now reverse.
II
Forbes has long since abandoned his statutory claims under 47 U.
S. C. § 315, and so the issue is whether his exclusion from the
debate was consistent with the First Amendment. The Court of
Appeals held it was not, applying our public forum precedents.
Appearing as
amicus curiae in support of petitioner, the
United States argues that our forum precedents should be of little
relevance in the context of television broadcasting. At the outset,
then, it is instructive to ask whether public forum principles
apply to the case at all.
Having first arisen in the context of streets and parks, the
public forum doctrine should not be extended in a mechanical
673
way to the very different context of public television
broadcasting. In the case of streets and parks, the open access and
viewpoint neutrality commanded by the doctrine is "compatible with
the intended purpose of the property."
Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 49 (1983).
So too was the requirement of viewpoint neutrality compatible with
the university's funding of student publications in
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819
(1995). In the case of television broadcasting, however, 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.
Congress has rejected the argument that "broadcast facilities
should be open on a nonselective basis to all persons wishing to
talk about public issues."
Columbia Broadcasting System,
Inc. v.
Democratic National Committee, 412 U. S. 94, 105 (1973).
Instead, television broadcasters enjoy the "widest journalistic
freedom" consistent with their public responsibilities.
Id.,
at 110;
FCC v.
League of Women Voters of Cal.,
468 U. S. 364,
378 (1984). Among the broadcaster's responsibilities is the duty to
schedule programming that serves the "public interest, convenience,
and necessity." 47 U. S. C. § 309(a). Public and private
broadcasters alike are not only permitted, but indeed required, to
exercise substantial editorial discretion in the selection and
presentation of their programming.
As a general rule, the nature of editorial discretion counsels
against subjecting broadcasters to claims of viewpoint
discrimination. Programming decisions would be particularly
vulnerable to claims of this type because even principled
exclusions rooted in sound journalistic judgment can often be
characterized as viewpoint based. To comply with their obligation
to air programming that serves the public interest, broadcasters
must often choose among speakers expressing different viewpoints.
"That editors-newspaper or broadcast-can and do abuse this power is
beyond doubt,"
674
Columbia Broadcasting System, Inc., 412 U. S., at 124;
but "[c]alculated risks of abuse are taken in order to preserve
higher values."
Id., at 125. Much like a university
selecting a commencement speaker, a public institution selecting
speakers for a lecture series, or a public school prescribing its
curriculum, a broadcaster by its nature will facilitate the
expression of some viewpoints instead of others. Were the judiciary
to require, and so to define and approve, preestablished criteria
for access, it would risk implicating the courts in judgments that
should be left to the exercise of journalistic discretion.
When a public broadcaster exercises editorial discretion in the
selection and presentation of its programming, it engages in speech
activity. Cf.
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 636 (1994) ("Through 'original programming or by
exercising editorial discretion over which stations or programs to
include in its repertoire,' cable programmers and operators 'see[k]
to communicate messages on a wide variety of topics and in a wide
variety of formats' ") (quoting
Los Angeles v.
Preferred
Communications, Inc., 476 U. S. 488, 494
(1986)). Although programming decisions often involve the
compilation of the speech of third parties, the decisions
nonetheless constitute communicative acts. See
Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U. S.
557, 570 (1995) (a speaker need not "generate, as an original
matter, each item featured in the communication").
Claims of access under our public forum precedents could
obstruct the legitimate purposes of television broadcasters. Were
the doctrine given sweeping application in this context, courts
"would be required to oversee far more of the day-today operations
of broadcasters' conduct, deciding such questions as whether a
particular individual or group has had sufficient opportunity to
present its viewpoint and whether a particular viewpoint has
already been sufficiently aired."
Columbia Broadcasting System,
Inc., supra, at 127. "The
675
result would be a further erosion of the journalistic discretion
of broadcasters," transferring "control over the treatment of
public issues from the licensees who are accountable for broadcast
performance to private individuals" who bring suit under our forum
precedents. 412 U. S., at 124. In effect, we would "exchange
'public trustee' broadcasting, with all its limitations, for a
system of self-appointed editorial commentators."
Id., at
125.
In the absence of any congressional command to "[r]egimen[t]
broadcasters" in this manner, id., at 127, we are disinclined to do
so through doctrines of our own design. This is not to say the
First Amendment would bar the legislative imposition of neutral
rules for access to public broadcasting. Instead, we say that, in
most cases, the First Amendment of its own force does not compel
public broadcasters to allow third parties access to their
programming.
Although public broadcasting as a general matter does not lend
itself to scrutiny under the forum doctrine, candidate debates
present the narrow exception to the rule. For two reasons, a
candidate debate like the one at issue here is different from other
programming. First, unlike AETC's other broadcasts, the debate was
by design a forum for political speech by the candidates.
Consistent with the long tradition of candidate debates, the
implicit representation of the broadcaster was that the views
expressed were those of the candidates, not its own. The very
purpose of the debate was to allow the candidates to express their
views with minimal intrusion by the broadcaster. In this respect
the debate differed even from a political talk show, whose host can
express partisan views and then limit the discussion to those
ideas.
Second, in our tradition, candidate debates are of exceptional
significance in the electoral process. "[I]t is of particular
importance that candidates have the ... opportunity to make their
views known so that the electorate may intelligently evaluate the
candidates' personal qualities and their
676
positions on vital public issues before choosing among them on
election day."
CBS, Inc. v.
FCC, 453 U. S. 367, 396 (1981)
(internal quotation marks omitted). Deliberation on the positions
and qualifications of candidates is integral to our system of
government, and electoral speech may have its most profound and
widespread impact when it is disseminated through televised
debates. A majority of the population cites television as its
primary source of election information, and debates are regarded as
the "only occasion during a campaign when the attention of a large
portion of the American public is focused on the election, as well
as the only campaign information format which potentially offers
sufficient time to explore issues and policies in depth in a
neutral forum." Congressional Research Service, Campaign Debates in
Presidential General Elections, summ. (June 15, 1993).
As we later discuss, in many cases it is not feasible for the
broadcaster to allow unlimited access to a candidate debate. Yet
the requirement of neutrality remains; a broadcaster cannot grant
or deny access to a candidate debate on the basis of whether it
agrees with a candidate's views. Viewpoint discrimination in this
context would present not a "[c]alculated ris[k],"
Columbia
Broadcasting System, Inc., supra, at 125, but an inevitability
of skewing the electoral dialogue.
The special characteristics of candidate debates support the
conclusion that the AETC debate was a forum of some type. The
question of what type must be answered by reference to our public
forum precedents, to which we now turn.
III
Forbes argues, and the Court of Appeals held, that the debate
was a public forum to which he had a First Amendment right of
access. Under our precedents, however, the debate was a nonpublic
forum, from which AETC could exclude Forbes in the reasonable,
viewpoint-neutral exercise of its journalistic discretion.
677
A
For our purposes, it will suffice to employ the categories of
speech fora already established and discussed in our cases. "[T]he
Court [has] identified three types of fora: the traditional public
forum, the public forum created by government designation, and the
nonpublic forum."
Cornelius v.
NAACP Legal Defense
&
Ed. Fund, Inc., 473 U. S. 788, 802
(1985). Traditional public fora are defined by the objective
characteristics of the property, such as whether, "by long
tradition or by government fiat," the property has been "devoted to
assembly and debate."
Perry Ed. Assn., 460 U. S., at 45. The
government can exclude a speaker from a traditional public forum
"only when the exclusion is necessary to serve a compelling state
interest and the exclusion is narrowly drawn to achieve that
interest."
Cornelius, supra, at 800.
Designated public fora, in contrast, are created by purposeful
governmental action. "The government does not create a [designated]
public forum by inaction or by permitting limited discourse, but
only by intentionally opening a nontraditional public forum for
public discourse." 473 U. S., at 802; accord,
International Soc.
for Krishna Consciousness, Inc. v.
Lee, 505 U. S. 672, 678 (1992)
(ISKCON) (designated public forum is "property that the
State has opened for expressive activity by part or all of the
public"). Hence "the Court has looked to the policy and practice of
the government to ascertain whether it intended to designate a
place not traditionally open to assembly and debate as a public
forum."
Cornelius, 473 U. S., at 802. If the government
excludes a speaker who falls within the class to which a designated
public forum is made generally available, its action is subject to
strict scrutiny.
Ibid.; United States v.
Kokinda,
497 U. S. 720,
726-727 (1990) (plurality opinion of O'CONNOR, J.).
Other government properties are either nonpublic fora or not
fora at all.
ISKCON, supra, at 678-679. The government can
restrict access to a nonpublic forum "as long
678
as the restrictions are reasonable and [are] not an effort to
suppress expression merely because public officials oppose the
speaker's view."
Cornelius, supra, at 800 (internal
quotation marks omitted).
In summary, traditional public fora are open for expressive
activity regardless of the government's intent. The objective
characteristics of these properties require the government to
accommodate private speakers. The government is free to open
additional properties for expressive use by the general public or
by a particular class of speakers, thereby creating designated
public fora. Where the property is not a traditional public forum
and the government has not chosen to create a designated public
forum, the property is either a nonpublic forum or not a forum at
all.
B
The parties agree the AETC debate was not a traditional public
forum. The Court has rejected the view that traditional public
forum status extends beyond its historic confines, see
ISKCON, 505 U. S., at 680-681; and even had a more expansive
conception of traditional public fora been adopted, see,
e.
g., id., at 698-699 (KENNEDY, J., concurring in judgments), the
almost unfettered access of a traditional public forum would be
incompatible with the programming dictates a television broadcaster
must follow. See
supra, at 673-675. The issue, then, is
whether the debate was a designated public forum or a nonpublic
forum.
Under our precedents, the AETC debate was not a designated
public forum. To create a forum of this type, the government must
intend to make the property "generally available,"
Widmar v.
Vincent, 454
U. S. 263, 264 (1981), to a class of speakers. Accord,
Cornelius, supra, at 802. In
Widmar, for example, a
state university created a public forum for registered student
groups by implementing a policy that expressly made its meeting
facilities "generally open" to such groups. 454 U. S., at 267;
accord,
Perry, supra, at 45 (desig-
679
nated public forum is "generally open"). A designated public
forum is not created when the government allows selective access
for individual speakers rather than general access for a class of
speakers. In
Perry, for example, the Court held a school
district's internal mail system was not a designated public forum
even though selected speakers were able to gain access to it. The
basis for the holding in
Perry was explained by the Court in
Cornel ius:
"In contrast to the general access policy in Widmar,
school board policy did not grant general access to the school mail
system. The practice was to require permission from the individual
school principal before access to the system to communicate with
teachers was granted." 473 U. S., at 803.
And in
Cornelius itself, the Court held the Combined
Federal Campaign (CFC) charity drive was not a designated public
forum because "[t]he Government's consistent policy ha[d] been to
limit participation in the CFC to 'appropriate' [i.
e.,
charitable rather than political] voluntary agencies and to require
agencies seeking admission to obtain permission from federal and
local Campaign officials."
Id., at 804.
These cases illustrate the distinction between "general access,"
id., at 803, which indicates the property is a designated public
forum, and "selective access," id., at 805, which indicates the
property is a nonpublic forum. On one hand, the government creates
a designated public forum when it makes its property generally
available to a certain class of speakers, as the university made
its facilities generally available to student groups in
Widmar. On the other hand, the government does not create a
designated public forum when it does no more than reserve
eligibility for access to the forum to a particular class of
speakers, whose members must then, as individuals, "obtain
permission," 473 U. S., at 804, to use it. For instance, the
Federal Government did not create a designated public forum in
Cornelius
680
when it reserved eligibility for participation in the CFC drive
to charitable agencies, and then made individual, nonministerial
judgments as to which of the eligible agencies would participate.
Ibid.
The
Cornelius distinction between general and selective
access furthers First Amendment interests. By recognizing the
distinction, we encourage the government to open its property to
some expressive activity in cases where, if faced with an
all-or-nothing choice, it might not open the property at all. That
this distinction turns on governmental intent does not render it
unprotective of speech. Rather, it reflects the reality that, with
the exception of traditional public fora, the government retains
the choice of whether to designate its property as a forum for
specified classes of speakers.
Here, the debate did not have an open-microphone format.
Contrary to the assertion of the Court of Appeals, AETC did not
make its debate generally available to candidates for Arkansas'
Third Congressional District seat. Instead, just as the Federal
Government in
Cornelius reserved eligibility for
participation in the CFC program to certain classes of voluntary
agencies, AETC reserved eligibility for participation in the debate
to candidates for the Third Congressional District seat (as opposed
to some other seat). At that point, just as the Government in
Cornelius made agency-by-agency determinations as to which
of the eligible agencies would participate in the CFC, AETC made
candidate-by-candidate determinations as to which of the eligible
candidates would participate in the debate. "Such selective access,
unsupported by evidence of a purposeful designation for public use,
does not create a public forum."
Id., at 805. Thus the
debate was a nonpublic forum.
In addition to being a misapplication of our precedents, the
Court of Appeals' holding would result in less speech, not more. In
ruling that the debate was a public forum open to all
ballot-qualified candidates, 93 F. 3d, at 504, the Court of Appeals
would place a severe burden upon public broadcast-
681
ers who air candidates' views. In each of the 1988, 1992, and
1996 Presidential elections, for example, no fewer than 19
candidates appeared on the ballot in at least one State. See
Twentieth Century Fund Task Force on Presidential Debates, Let
America Decide 148 (1995); Federal Election Commission, Federal
Elections 92, p. 9 (1993); Federal Election Commission, Federal
Elections 96, p. 11 (1997). In the 1996 congressional elections, it
was common for 6 to 11 candidates to qualify for the ballot for a
particular seat. See 1996 Election Results, 54 Congressional
Quarterly Weekly Report 3250-3257 (1996). In the 1993 New Jersey
gubernatorial election, to illustrate further, sample ballot
mailings included the written statements of 19 candidates. See N.
Y. Times, Sept. 11, 1993, section 1, p. 26, col. 5. On logistical
grounds alone, a public television editor might, with reason,
decide that the inclusion of all ballot-qualified candidates would
"actually undermine the educational value and quality of debates."
Let America Decide,
supra, at 148.
Were it faced 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 candidates' views at all. A
broadcaster might decide "'the safe course is to avoid
controversy,' ... and by so doing diminish the free flow of
information and ideas."
Turner Broadcasting System, Inc.,
512 U. S., at 656 (quoting
Miami Herald Publishing Co. v.
Tornillo, 418
U. S. 241, 257 (1974)). In this circumstance, a
"[g]overnment-enforced right of access inescapably 'dampens the
vigor and limits the variety of public debate.'"
Ibid.
(quoting
New York Times Co. v.
Sullivan, 376 U. S. 254, 279
(1964)).
These concerns are more than speculative. As a direct result of
the Court of Appeals' decision in this case, the Nebraska
Educational Television Network canceled a scheduled debate between
candidates in Nebraska's 1996 United States Senate race. See
Lincoln Journal Star, Aug. 24,1996,
682
p. lA, col. 6. A First Amendment jurisprudence yielding these
results does not promote speech but represses it.
C
The debate's status as a nonpublic forum, however, did not give
AETC unfettered power to exclude any candidate it wished. As
JUSTICE O'CONNOR has observed, nonpublic forum status "does not
mean that the government can restrict speech in whatever way it
likes."
ISKCON, 505 U. S., at 687. To be consistent with the
First Amendment, the exclusion of a speaker from a nonpublic forum
must not be based on the speaker's viewpoint and must otherwise be
reasonable in light of the purpose of the property.
Cornelius, 473 U. S., at 800.
In this case, the jury found Forbes' exclusion was not based on
"objections or opposition to his views." App. to Pet. for Cert.
23a. The record provides ample support for this finding,
demonstrating as well that AETC's decision to exclude him was
reasonable. AETC Executive Director Susan Howarth testified Forbes'
views had "absolutely" no role in the decision to exclude him from
the debate. App. 142. She further testified Forbes was excluded
because (1) "the Arkansas voters did not consider him a serious
candidate"; (2) "the news organizations also did not consider him a
serious candidate"; (3) "the Associated Press and a national
election result reporting service did not plan to run his name in
results on election night"; (4) Forbes "apparently had little, if
any, financial support, failing to report campaign finances to the
Secretary of State's office or to the Federal Election Commission";
and (5) "there [was] no 'Forbes for Congress' campaign headquarters
other than his house."
Id., at 126-127. Forbes himself
described his campaign organization as "bedlam" and the media
coverage of his campaign as "zilch."
Id., at 91, 96. It is,
in short, beyond dispute that Forbes was excluded not because of
his viewpoint but because he had generated no appreciable public
interest.
683
Cf.
Perry, 460 U. S., at 49 (exclusion from nonpublic
forum "based on the
status" rather than the views of the
speaker is permissible (emphasis in original)).
There is no substance to Forbes' suggestion that he was excluded
because his views were unpopular or out of the mainstream. His own
objective lack of support, not his platform, was the criterion.
Indeed, the very premise of Forbes' contention is mistaken. A
candidate with unconventional views might well enjoy broad support
by virtue of a compelling personality or an exemplary campaign
organization. By the same token, a candidate with a traditional
platform might enjoy little support due to an inept campaign or any
number of other reasons.
Nor did AETC exclude Forbes in an attempted manipulation of the
political process. The evidence provided powerful support for the
jury's express finding that AETC's exclusion of Forbes was not the
result of "political pressure from anyone inside or outside
[AETC]." App. to Pet. for Cert. 22a. There is no serious argument
that AETC did not act in good faith in this case. AETC excluded
Forbes because the voters lacked interest in his candidacy, not
because AETC itself did.
The broadcaster's decision to exclude Forbes was a reasonable,
viewpoint-neutral exercise of journalistic discretion consistent
with the First Amendment. The judgment of the Court of Appeals
is
Reversed.
JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG
join, dissenting.
The Court has decided that a state-owned television network has
no "constitutional obligation to allow every candidate access to"
political debates that it sponsors.
Ante, at 669. I do not
challenge that decision. The judgment of the Court of Appeals
should nevertheless be affirmed. The official action that led to
the exclusion of respondent Forbes
684
from a debate with the two major-party candidates for election
to one of Arkansas' four seats in Congress does not adhere to
well-settled constitutional principles. The ad hoc decision of the
staff of the Arkansas Educational Television Commission (AETC)
raises precisely the concerns addressed by "the many decisions of
this Court over the last 30 years, holding that a law subjecting
the exercise of First Amendment freedoms to the prior restraint of
a license, without narrow, objective, and definite standards to
guide the licensing authority, is unconstitutional."
Shuttlesworth v.
Birmingham,
394 U. S. 147, 150-151
(1969).
In its discussion of the facts, the Court barely mentions the
standardless character of the decision to exclude Forbes from the
debate. In its discussion of the law, the Court understates the
constitutional importance of the distinction between state
ownership and private ownership of broadcast facilities. I shall
therefore first add a few words about the record in this case and
the history of regulation of the broadcast media, before explaining
why I believe the judgment should be affirmed.
I
Two months before Forbes was officially certified as an
independent candidate qualified to appear on the ballot under
Arkansas law,l the AETC staff had already concluded that he "should
not be invited" to participate in the televised debates because he
was "not a serious candidate as determined by the voters of
Arkansas." 2 He had, however, been a serious contender for the
Republican nomination for Lieutenant Governor in 1986 and again in
1990. Although he was defeated in a runoff election, in the
three-way primary race conducted in 1990-just two years before the
AETC staff decision-he had received 46.88% of the statewide vote
and
1 See Ark. Code Ann. § 7-7-103(c)(1) (Supp. 1993).
2 Record, Letter to Carole Adornetto from Amy Oliver Barnes
dated June 19, 1992, attached as Exh. 2 to Mfidavit of Amy Oliver
Barnes.
685
had carried 15 of the 16 counties within the Third Congressional
District by absolute majorities. Nevertheless, the staff concluded
that Forbes did not have "strong popular support." Record,
Affidavit of Bill Simmons' 5.3
Given the fact that the Republican winner in the Third
Congressional District race in 1992 received only 50.22% of the
vote and the Democrat received 47.20%,4 it would have been
necessary for Forbes, who had made a strong showing in recent
Republican primaries, to divert only a handful of votes from the
Republican candidate to cause his defeat. Thus, even though the
AETC staff may have correctly concluded that Forbes was "not a
serious candidate," their decision to exclude him from the debate
may have determined the outcome of the election in the Third
District.
If a comparable decision were made today by a privately owned
network, it would be subject to scrutiny under the Federal Election
Campaign Act of 1971 5 unless the network used "pre-established
objective criteria to determine which candidates may participate in
[the] debate." 11 CFR § 110.13(c) (1997). No such criteria governed
AETC's refusal to permit Forbes to participate in the debate.
Indeed, whether that refusal was based on a judgment about
"newsworthiness"-as AETC has argued in this Court-or a judgment
about "political viability"-as it argued in the Court of
Appeals-the facts in the record presumably would have
3 Simmons, a journalist working with the AETC staff on the
debates, stated that "[a]t the time this decision [to invite only
candidates with strong popular support] was made ... , there were
no third party or non-party candidates to evaluate as to the likely
extent of their popular support." Record, Affidavit of Bill
Simmons' 5. Presumably Simmons meant that there was no other
ballot-qualified candidate, because an AETC staff member, Amy
Oliver, represented that there was consideration about whether to
invite Forbes before he qualified as a candidate. See text
accompanying n. 2, supra.
4 See App. 172.
5 See 2 U. S. C. § 441b(a); see also Perot v. FEC,
97 F.3d
553, 556 (CADC 1996), cert. denied sub nom. Hagelin v. FEC, 520
U. S. 1210 (1997).
686
provided an adequate basis either for a decision to include
Forbes in the Third District debate or a decision to exclude him,
and might even have required a cancellation of two of the other
debates.6
The apparent flexibility of AETC's purported standard suggests
the extent to which the staff had nearly limitless discretion to
exclude Forbes from the debate based on ad hoc justifications.
Thus, the Court of Appeals correctly concluded that the staff's
appraisal of "political viability" was "so subjective, so arguable,
so susceptible of variation in individual opinion, as to provide no
secure basis for the exercise of governmental power consistent with
the First Amendment."
Forbes v.
Arkansas Educational
Television Communication Network Foundation, 93 F.3d
497, 505 (CA81996).
II
AETC is a state agency whose actions "are fairlyattributable to
the State and subject to the Fourteenth Amendment, unlike the
actions of privately owned broadcast licensees."
Forbes v.
Arkansas Educational Television Communication Network
Foundation, 22 F.3d
1423, 1428 (CA8), cert. denied, 513 U. S. 995 (1994), 514 U. S.
1110 (1995). The AETC staff members therefore "were not ordinary
journalists: they
6 Although the contest between the major-party candidates in the
Third District was a relatively close one, in two of the other
three districts in which both major-party candidates had been
invited to debate, it was clear that one of them had virtually no
chance of winning the election. Democrat Blanche Lambert's
resounding victory over Republican Terry Hayes in the First
Congressional District illustrates this point: Lambert received
69.8% of the vote compared with Hays' 30.2%. R. Scammon & A.
McGillivray, America Votes 20: A Handbook of Contemporary American
Election Statistics 99 (1993). Similarly, in the Second District,
Democrat Ray Thornton, the incumbent, defeated Republican Dennis
Scott and won with 74.2% of the vote.
Ibid. Note that Scott
raised only $6,000, which was less than Forbes raised;
nevertheless, Scott was invited to participate in a debate while
Forbes was not. See App. 133-134, 175.
687
were employees of government." 93 F. 3d, at 505. The Court
implicitly acknowledges these facts by subjecting the decision to
exclude Forbes to constitutional analysis. Yet the Court seriously
underestimates the importance of the difference between private and
public ownership of broadcast facilities, despite the fact that
Congress and this Court have repeatedly recognized that
difference.
In
Columbia Broadcasting System, Inc. v.
Democratic
National Committee, 412 U. S. 94 (1973), the
Court held that a licensee is neither a common carrier, id., at
107-109, nor a public forum that must accommodate "'the right of
every individual to speak, write, or publish,'" id., at 101
(quoting
Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367, 388
(1969)). Speaking for a plurality, Chief Justice Burger expressed
the opinion that the First Amendment imposes no constraint on the
private network's journalistic freedom. He supported that view by
noting that when Congress confronted the advent of radio in the
1920's, it "was faced with a fundamental choice between total
Government ownership and control of the new medium-the choice of
most other countries-or some other alternative." 412 U. S., at
116.7
7 Interestingly, many countries that formerly relied upon state
control of broadcast entities appear to be moving in the direction
of deregulation and private ownership of such entities. See,
e. g., Bughin & Griekspoor, A New Era for European TV, 3
McKinsey Q. 90, 92-93 (1997) ("Most of Western Europe's public
television broadcasters began to lose their grip on the market in
the mid-1980s. Only Switzerland, Austria, and Ireland continue to
operate state television monopolies .... In Europe as a whole
(including Eastern Europe, where television remains largely state
controlled), the number of private broadcasters holding
market-leading positions nearly doubled in the first half of this
decade"); Rohwedder, Central Europe's Broadcasters Square Off, Wall
Street Journal Europe 4 (May 15, 1995) ("Central Europe's
government-run television channels, unchallenged media masters in
the days of communist control, are coming under increasingly
aggressive attack from upstart private broadcasters"); Lange &
Woldt, European Interest in the American Experience in
Self-Regulation, 13 Cardozo Arts & Ent. L. J. 657,658 (1995)
("Over the
688
Congress chose a system of private broadcasters licensed and
regulated by the Government, partly because of our traditional
respect for private enterprise, but more importantly because public
ownership created unacceptable risks of governmental censorship and
use of the media for propaganda. "Congress appears to have
concluded ... that of these two choices-private or official
censorship-Government censorship would be the most pervasive, the
most self-serving, the most difficult to restrain and hence the one
most to be avoided."
Id., at 105.8
While noncommercial, educational stations generally have
exercised the same journalistic independence as commercial
networks, in 1981 Congress enacted a statute forbidding stations
that received a federal subsidy to engage in "editorializing." 9
Relying primarily on cases involving the rights of commercial
entities, a bare majority of this Court held the restriction
invalid.
FCC v.
League of Women Voters of Cal.,
468 U. S. 364
(1984). Responding to the dissenting view that "the interest in
keeping the Federal Government out of the propaganda arena"
justified the restriction, id., at 415 (opinion of STEVENS, J.),
the majority emphasized the broad coverage of the statute and
concluded that it "impermissibly sweeps within its prohibition a
wide range
last ten years, in Germany and many other European countries,
public broadcasting has been weakened by competition from private
television channels").
8 The Court considered then-Secretary of Commerce Herbert
Hoover's statement to a House committee expressing concern about
government involvement in broadcasting:
"'We can not allow any single person or group to place
themselves in [a] position where they can censor the material which
shall be broadcasted to the public, nor do I believe that the
Government should ever be placed in the position of censoring this
material.'" 412 U. S., at 104 (quoting Hearings on H. R. 7357
before the House Committee on the Merchant Marine and Fisheries,
68th Cong., 1st Sess., 8 (1924)).
9Public Broadcasting Amendments of 1981, Pub. L. 97-35, 95 Stat.
730, amending § 399 of the Public Broadcasting Act of 1967, Pub. L.
90-129, 81 Stat. 365, 47 U. S. C. §390
et seq.
689
of speech by wholly private stations on topics that ... have
nothing whatever to do with federal, state, or local government."
Id., at 395. The Court noted that Congress had considered
and rejected a ban that would have applied only to stations
operated by state or local governmental entities, and reserved
decision on the constitutionality of such a limited ban. See id.,
at 394, n. 24.
The
League of Women Voters case implicated the right of
"wholly private stations" to express their own views on a wide
range of topics that "have nothing whatever to do with ...
government."
Id., at 395. The case before us today involves
only the right of a state-owned network to regulate speech that
plays a central role in democratic government. Because AETC is
owned by the State, deference to its interest in making ad hoc
decisions about the political content of its programs necessarily
increases the risk of government censorship and propaganda in a way
that protection of privately owned broadcasters does not.
III
The Court recognizes that the debates sponsored by AETC were "by
design a forum for political speech by the candidates."
Ante, at 675. The Court also acknowledges the central
importance of candidate debates in the electoral process. See ibid.
Thus, there is no need to review our cases expounding on the public
forum doctrine to conclude that the First Amendment will not
tolerate a state agency's arbitrary exclusion from a debate forum
based, for example, on an expectation that the speaker might be
critical of the Governor, or might hold unpopular views about
abortion or the death penalty. Indeed, the Court so holds
today.lO
10 The Court correctly rejects the extreme position that the
First Amendment simply has no application to a candidate's claim
that he or she should be permitted to participate in a televised
debate. See Brief for FCC et al. as
Amici Curiae 14 ("The
First Amendment does not constrain the editorial choices of
state-entity public broadcasters licensed
690
It seems equally clear, however, that the First Amendment will
not tolerate arbitrary definitions of the scope of the forum. We
have recognized that "[o]nce it has opened a limited forum, ... the
State must respect the lawful boundaries it has itself set."
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
829 (1995). It follows, of course, that a State's failure to set
any meaningful boundaries at all cannot insulate the State's action
from First Amendment challenge. The dispositive issue in this case,
then, is not whether AETC created a designated public forum or a
nonpublic forum, as the Court concludes, but whether AETC defined
the contours of the debate forum with sufficient specificity to
justify the exclusion of a ballotqualified candidate.
AETC asks that we reject Forbes' constitutional claim on the
basis of entirely subjective, ad hoc judgments about the dimensions
of its forum.ll The First Amendment demands more, however, when a
state government effectively wields the power to eliminate a
political candidate from all consideration by the voters. All
stations must act as editors, see
ante, at 673, and when
state-owned stations participate in the broadcasting arena, their
editorial decisions may impact the constitutional interests of
individual speakers.12 A state-owned broadcaster need not plan,
sponsor, and conduct political debates, however. When it chooses to
do so, the First Amendment imposes important limitations on its
control over access to the debate forum.
AETC's control was comparable to that of a local government
official authorized to issue permits to use public facilities for
expressive activities. In cases concerning ac-
to operate under the Communications Act"); see also Brief for
State of California et al. as
Amici Curiae 4 ("In its role
as speaker, rather than mere forum provider, the state actor is not
restricted by speaker-inclusive and viewpoint-neutral rules").
11 See
supra, at 685-686. 12 See n. 17,
infra.
691
cess to a traditional public forum, we have found an analogy
between the power to issue permits and the censorial power to
impose a prior restraint on speech. Thus, in our review of an
ordinance requiring a permit to participate in a parade on city
streets, we explained that the ordinance, as written, "fell
squarely within the ambit of the many decisions of this Court over
the last 30 years, holding that a law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional."
Shuttlesworth,
394 U. S., at 150-151.
We recently reaffirmed this approach when considering the
constitutionality of an assembly and parade ordinance that
authorized a county official to exercise discretion in setting the
amount of the permit fee. In
Forsyth County v.
Nationalist Movement, 505 U. S. 123 (1992),
relying on
Shuttlesworth and similar cases,13 we described
the breadth of the administrator's discretion thusly:
"There are no articulated standards either in the ordinance or
in the county's established practice. The administrator is not
required to rely on any objective factors. He need not provide any
explanation for his decision, and that decision is unreviewable.
Nothing in the law or its application prevents the official from
encouraging some views and discouraging others through the
arbitrary application of fees. The First Amendment prohibits the
vesting of such unbridled discretion in a government official." 505
U. S., at 133 (footnotes omitted).
13 After citing
Shuttlesworth, we explained: "The
reasoning is simple:
If the permit scheme 'involves appraisal of facts, the exercise
of judgment, and the formation of an opinion,'
Cantwell v.
Connecticut, 310 U. S. 296, 305
(1940), by the licensing authority, 'the danger of censorship and
of abridgment of our precious First Amendment freedoms is too
great' to be permitted,
Southeastern Promotions, Ltd. v.
Conrad, 420 U.
S. 546, 553 (1975)." 505 U. S., at 131.
692
Perhaps the discretion of the AETC staff in controlling access
to the 1992 candidate debates was not quite as unbridled as that of
the Forsyth County administrator. Nevertheless, it was surely broad
enough to raise the concerns that controlled our decision in that
case. No written criteria cabined the discretion of the AETC staff.
Their subjective judgment about a candidate's "viability" or
"newsworthiness" allowed them wide latitude either to permit or to
exclude a third participant in any debate.14 Moreover, in
exercising that judgment they were free to rely on factors that
arguably should favor inclusion as justifications for exclusion.
Thus, the fact that Forbes had little financial support was
considered as evidence of his lack of viability when that factor
might have provided an independent reason for allowing him to share
a free forum with wealthier candidates.15
The televised debate forum at issue in this case may not
squarely fit within our public forum analysis,16 but its importance
cannot be denied. Given the special character of political speech,
particularly during campaigns for elected office,
14 It is particularly troubling that AETC excluded the only
independent candidate but invited all the major-party candidates to
participate in the planned debates, regardless of their chances of
electoral success. See n. 6,
supra. As this Court has
recognized, "political figures outside the two major parties have
been fertile sources of new ideas and new programs; many of their
challenges to the status quo have in time made their way into the
political mainstream."
Anderson v.
Celebrezze, 460 U.
S. 780, 794 (1983) (citing
Illinois Ed. of Elections v.
Socialist Workers Party, 440 U. S. 173, 186
(1979)).
15 Lack of substantial financial support apparently was not a
factor in the decision to invite a major-party candidate with even
less financial support than Forbes. See n. 6,
supra.
16 Indeed, a plurality of the Court recently has expressed
reluctance about applying public forum analysis to new and changing
contexts. See
Denver Area Ed. Telecommunications Consortium,
Inc. v.
FCC, 518 U. S. 727, 741, 749 (1996) (plurality
opinion) ("[I]t is not at all clear that the public forum doctrine
should be imported wholesale into the area of common carriage
regulation").
693
the debate forum implicates constitutional concerns of the
highest order, as the majority acknowledges.
Ante, at 675.
Indeed, the planning and management of political debates by
state-owned broadcasters raise serious constitutional concerns that
are seldom replicated when state-owned television networks engage
in other types ofprogramming.17 We have recognized that "speech
concerning public affairs is ... the essence of self-government."
Garrison v.
Louisiana, 379 U. S. 64, 74-75 (1964).
The First Amendment therefore "has its fullest and most urgent
application precisely to the conduct of campaigns for political
office."
Monitor Patriot Co. v.
Roy, 401 U. S. 265, 272
(1971). Surely the Constitution demands at least as much from the
government when it takes action that necessarily impacts democratic
elections as when local officials issue parade permits.
The reasons that support the need for narrow, objective, and
definite standards to guide licensing decisions apply directly to
the wholly subjective access decisions made by the staff of AETC.18
The importance of avoiding arbitrary
17The Court observes that "in most cases, the First Amendment of
its own force does not compel public broadcasters to allow third
parties access to their programming."
Ante, at 675. A rule,
such as the one promulgated by the Federal Election Commission,
that requires the use of preestablished, objective criteria to
identify the candidates who may participate leaves all other
programming decisions unaffected. This is not to say that all other
programming decisions made by state-owned television networks are
immune from attack on constitutional grounds. As long as the State
is not itself a "speaker," its decisions, like employment decisions
by state agencies and unlike decisions by private actors, must
respect the commands of the First Amendment. It is decades of
settled jurisprudence that require judicial review of state action
that is challenged on First Amendment grounds. See,
e. g.,
Widmar v.
Vincent, 454 U. S. 263 (1981);
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819
(1995).
18 Ironically, it is the standardless character of the decision
to exclude Forbes that provides the basis for the Court's
conclusion that the debates were a nonpublic forum rather than a
limited public forum. The Court
694
or viewpoint-based exclusions from political debates militates
strongly in favor of requiring the controlling state agency to use
(and adhere to) preestablished, objective criteria to determine who
among qualified candidates may participate. When the demand for
speaking facilities exceeds supply, the State must "ration or
allocate the scarce resources on some acceptable neutral
principle."
Rosenberger, 515 U. S., at 835. A constitutional
duty to use objective standards-i.
e., "neutral principles"
-for determining whether and when to adjust a debate format would
impose only a modest requirement that would fall far short of a
duty to grant every multiple-party request.19 Such standards would
also have the benefit of providing the public with some assurance
that state-owned broadcasters cannot select debate participants on
arbitrary grounds.20
Like the Court, I do not endorse the view of the Court of
Appeals that all candidates who qualify for a position on the
ballot are necessarily entitled to access to any statesponsored
debate. I am convinced, however, that the constitutional
imperatives that motivated our decisions in cases like
Shuttlesworth command that access to political debates
explains that "[a] designated public forum is not created when
the government allows selective access for individual speakers
rather than general access for a class of speakers."
Ante,
at 679. If, as AETC claims, it did invite either the entire class
of "viable" candidates, or the entire class of "newsworthy"
candidates, under the Court's reasoning, it created a designated
public forum.
19 The Court expresses concern that as a direct result of the
Court of Appeals' holding that all ballot-qualified candidates have
a right to participate in every debate, a state-owned network
canceled a 1996 Nebraska debate.
Ante, at 681. If the
Nebraska station had realized that it could have satisfied its
First Amendment obligations simply by setting out participation
standards before the debate, however, it seems quite unlikely that
it would have chosen instead to cancel the debate.
20 The fact that AETC and other state-owned networks have
adopted policy statements emphasizing the importance of shielding
programming decisions from political influence, see
ante, at
670, confirms the significance of the risk that would be minimized
by the adoption of objective criteria.
695
planned and managed by state-owned entities be governed by
preestablished, objective criteria. Requiring government employees
to set out objective criteria by which they choose which candidates
will benefit from the significant media exposure that results from
state-sponsored political debates would alleviate some of the risk
inherent in allowing government agencies-rather than private
entities-to stage candidate debates.
Accordingly, I would affirm the judgment of the Court of
Appeals.
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