POLITICAL CANDIDATES' FIRST AMENDMENT
RIGHTS CAN BE TRUMPED BY JOURNALISTS'
EDITORIAL RIGHTS: CANDIDATES BARRED
FROM PUBLIC TELEVISION DEBATE IN
MARCUS v. IOWA PUBLIC TELEVISION
INTRODUCTION
An enduring principle of our American system of government is
that all people are allowed to speak freely and express their views
without fear of retribution.' In our nation's democracy, this freedom
was incorporated into the Constitution as the First Amendment in the
Bill of Rights. 2 This freedom to speak and express oneself is afforded
the greatest protection when the ideas expressed involve criticisms of
the government, discussion of current events, and candidates for political office whose identities may shape the course of our nation. 3 As
summed up by the Supreme Court:
The First Amendment symbolizes our "profound national
commitment to the principle that debate on public issues
should be uninhibited, robust and wide-open." Indubitably,
"[iln a republic where the people are sovereign, the ability of
the citizenry to make informed choices among candidates for
office is essential, for the identities of those who are elected
will inevitably shape the course that we are to follow as a nation." So "it can hardly be doubted that the constitutional
preguarantee has its fullest and most urgent application
4
cisely to the conduct of campaigns for political office."
In addition to protecting an individual's speech, the Constitution5
also protects the press and its ability to report what individuals say.
Freedom of individual speech and freedom of the press were both recognized by our government in 1791.6 However, with the advent of
broadcasting and the physical limitations inherent in that outlet of
1. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72
YALE L.J. 877, 878-80 (1963).
2. Emerson, 72 YALE L.J. at 886; U.S. CONST. amend. I.
3. Kennedy for President Comm. v. FCC, 636 F.2d 417, 430 (D.C. Cir. 1980).
4. Kennedy for President,636 F.2d at 430 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Buckley v. Valeo, 424 U.S. 1, 14-15 (1976); Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
5. Vincent Blasi, The Checking Value in the FirstAmendment Theory, 1977 AM. B.
FOUND. RES. J. 523 (1977); U.S. CONST. amend. I.
6. Blasi, 1977 Am.B. FOUND. RES. J. at 523; U.S. CONST. amend. I; GEOFFREY R.
STONE, Louis M. SEIDMAN, CASS R. SUNSTEIN & MARK V. TUSHNET, CONSTITUTIONAL
LAW
at lxix (3d ed. 1996).
CREIGHTON LAW REVIEW
[Vol. 31
expression, the government has balanced the right of all ideas to be
expressed against the necessity of restricting who has access to the
7
limited commodity of broadcast airwaves.
In Marcus v. Iowa Public Television,8 the United States Court of
Appeals for the Eighth Circuit held that a public television station
could exclude a third-party candidate from a debate the station sponsored if the candidate was deemed "not newsworthy" in accordance
with pre-determined editorial policies. 9 In Marcus, Jay B. Marcus, a
candidate for U.S. Representative in Iowa's Third Congressional District, believed his First Amendment rights were being infringed by the
government because the broadcaster, who would not allow his views to
be aired alongside the views of other political candidates, was a government entity. 10 At the same time, the broadcasters believed they
had a First Amendment editorial right to determine what was in the
best interests of the viewing audience, even when it came to selecting
participants for a debate they sponsored."
This Note will first review the facts and holding of Marcus v. Iowa
Public Television.12 This Note will then examine the history of broadcast regulation in the national arena, followed by an examination of
federal court decisions and the relevant factors within the Eighth Circuit that are pertinent to the discussion. 13 Next, this Note will criticize the Eighth Circuit's decision in Marcus because (1) the court was
incorrect in deeming public television-sponsored debates as limited
public forums, and (2) the court should have relied upon 47 U.S.C.
section 315 in making its decision regarding equal time requirements
for candidates in a public television-sponsored political debate. 14 Despite these criticisms, this Note will ultimately agree with the Eighth
Circuit's decision because: (1) the court was right in determining they
had jurisdiction to decide the case, and (2) the court correctly refused
injunctive relief for a candidate excluded from televised debates pend15
ing trial.
7. Broadcasters'Pub. Interest Obligationsand S. 217, the Fairnessin Broadcasting Act of 1991: Hearing Before the Subcomm. on Communications of the Comm. on
Commerce, Science, and Transp., 102d Cong. 1 (1991) (opening statement of Sen. Daniel
K. Inouye, Chairman, Subcomm. On Communications of the Comm. on Commerce, Science, and Transp.). See infra notes 84-165 and accompanying text.
8. 97 F.3d 1137 (8th Cir. 1996).
9. Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1144 (8th Cir. 1996).
10. Marcus, 97 F.3d at 1138-40 & n.1.
11. Id. at 1141.
12. See infra notes 16-83 and accompanying text.
13. See infra notes 84-387 and accompanying text.
14. See infra notes 399-499 and accompanying text.
15. See infra notes 500-525 and accompanying text.
1998]
THE FIRST AMENDMENT
FACTS AND HOLDING
On September 13, 1996, Jay B. Marcus and six other third-party
candidates (collectively "Marcus"), along with an Iowa registered voter
interested in those candidates, filed an action against Iowa Public Television ("IPTV") seeking to be included in IPTV programming scheduled to showcase Congressional and Senatorial candidates from the
Democratic and Republican parties.1 6 Marcus claimed that IPTV infringed upon his constitutional rights, as guaranteed by the First
17
Amendment, when IPTV excluded him from its program.
IPTV was a state agency governed by the dictates of the Iowa legislature, specifically Iowa Code section 256.80 through section
256.90.18 IPTV was created to function under the auspices of the Department of Education and oversight of the station is accomplished
through an advisory board.1 9 The board is responsible for, among
other things, appointing "an advisory committee on journalistic and
editorial integrity."20 The entire division has been directed by the legislature to operate using the "national principles of editorial integrity
21
developed by the editorial integrity project."
The editorial integrity project embraces five principles upon
which the IPTV board and advisory committee are to operate. 22 The
five principles broadly state: "(I) We are Trustees of a Public Service;
(II) Our Service is Programming; (III) Credibility is the Currency of
our Programming; (IV) Many of our Responsibilities are Grounded in
Constitutional or Statutory Law; and (V) We Have a Fiduciary Re16. Marcus v. Iowa Pub. Television, 24 Media L. Rep. (BNA) 2531, 2531-32 (S.D.
Iowa Oct. 9, 1996). The candidates, their party affiliations, and the office each sought
are as follows: 1) Jay B. Marcus, Natural Law Party, U.S. Representative in Iowa's
Third Congressional District; 2) Michael Cuddehe, Natural Law Party, U.S. Representative in Iowa's First Congressional District; 3) Peter Lamourex, Natural Law Party,
U.S. Representative in Iowa's Second Congressional District; 4) Rogers Badgett, Natural Law Party, U.S. Representative in Iowa's Fourth Congressional District; 5) Michael
Demick, Natural Law Party, U.S. Representative in Iowa's Fifth Congressional District;
6) Edward T. Rusk, Working Class Party, U.S. Representative in Iowa's Third Congressional District; and 7) Fred Gratzon, Natural Law Party, U.S. Senate in Iowa. Marcus,
24 Media L. Rep. (BNA) at 2531. Susan Marcus was described in the court record as "a
registered voter in Iowa who desires to hear the candidates who are parties to this action participate in the forums with the Republican and Democratic candidates and all
other legally qualified candidates on the Iowa Press show." Id. at 2532.
17. Marcus, 24 Media L. Rep. (BNA) at 2531.
18. Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1138 (8th Cir. 1996).
19. IOWA CODE ANN. § 256.81-82 (West 1996). The board consisted of nine members: four appointed by the governor (representing the business community, commercial
broadcast industry, fund-raising organization, and the general public), and five appointed by five different education agencies and organizations. IOWA CODE ANN.
§ 256.82 (West 1996).
20. IOWA CODE ANN. § 256.82(3) (West 1996).
21. Id.
22. Marcus, 97 F.3d at 1142.
478
CREIGHTON LAW REVIEW
[Vol. 31
sponsibility for Public Funds." 23 The guideline to Principle III further
instructs that:
"[t]he process of developing programs to meet the audience's
needs must function under clear policies adopted and regularly reviewed by the trustees. This process 'must be managed by the professional staff according to generally accepted
broadcasting industry standards, so that the programming
service is free from pressure from political or financial supporters. The Station's chief executive officer is responsible for
assuring that the program decisions are based on editorial
criteria, such as fairness, objectivity, balance and community
24
needs; not on funding considerations."
IPTV further defined the guidelines for its particular broadcasting station by developing a programming policy which stated that
"'[i]nthe presentation of public affairs programming, Iowa Public Television should maintain maximum objectivity and fairness. Iowa Public Television should strive for a better informed citizenry of the State
of Iowa, through the presentation of important and significant issues.'" 25 One way in which this policy was fulfilled was by restricting
the type of candidates who could appear on its Iowa Press program to
discuss issues relevant to ongoing political campaigns. 26 The candidates were selected based on their perceived "newsworthiness" value
to the viewers of IPTV, thus fulfilling the editorial integrity project's
27
requirement to "meet the audience's needs."
In 1996, IPTV had scheduled programs featuring "co-appearances
by the major candidates seeking to represent Iowa's five congressional
districts in the Iowa delegation in Washington D.C." 28 IPTV then determined that all of the major candidates were members of the Democratic or Republican parties, and allowed only those candidates onto
its program. 29 The program, Iowa Press, had aired weekly for over
twenty years and always featured public figures which were interviewed by IPTV journalists. 3 0 IPTV did not consider the upcoming
programs featuring the Democratic and Republican candidates for
Congress to be debates. 3 1 However, the programs were scheduled "to
23. Id.
24. Id. at 1142-43.
25. Id. at 1143.
26. Id.
27. Id. at 1142-43.
28. Id. at 1139.
29. Id.
30. Marcus, 24 Media L. Rep. (BNA) at 2532.
31. Marcus, 97 F.3d at 1139. Rather, IPTV referred to these programs- as "co-appearances" or "joint appearances" by major candidates. Id.
19981
THE FIRST AMENDMENT
be aired on the six weekends leading up to the November 1996 general
32
election."
Marcus sought injunctive relief which would require IPTV to "include all legally qualified candidates in the joint appearances." 3 3 Marcus also wanted IPTV "toretract or correct its statement in a program
guide referring to Republican and Democratic party candidates as 'the
major candidates." 34 Although IPTV refused to accede to Marcus' demands, IPTV did offer Marcus an opportunity "to present [his] views
on other programs presented by the network."3 5 Marcus rebuffed
36
IPTV's offer and sought injunctive relief by the court.
PROCEDURAL HISTORY
Because the election was less than seven weeks away, the United
States District Court for the Southern District of Iowa held a preliminary hearing to determine if Marcus should receive immediate injunctive relief.37 The district court held that Marcus "failed to
demonstrate irreparable harm and that [he] did not establish a likelihood of success on the merits;" thus, Marcus' request for a preliminary
injunction was denied. 38 The district court then scheduled a trial to
begin at the end of September and, at the request of Marcus, agreed to
39
impanel a jury.
At the conclusion of the trial, the district court "submitted eight
special verdict questions to the jury."40 The jury's findings of fact
were as follows: (1) Marcus proved that IPTV's programs were debates; (2) IPTV proved that its programs were "bona fide news interview programs;" (3) Marcus did not prove that IPTV "did not act in
accordance with a predetermined policy in deciding whom to invite" on
those programs; (4) Marcus failed to prove that IPTV chose to invite
the Democratic and Republican candidates based solely on their party
32. Marcus, 24 Media L. Rep. (BNA) at 2531.
33. Marcus, 97 F.3d at 1138 (quoting Complaint at 10). Marcus also filed an action
against IPTV and its director of programming and production, alleging that they infringed his First Amendment constitutional rights. Marcus, 24 Media L. Rep. (BNA) at
2531.
34. Marcus, 24 Media L. Rep. (BNA) at 2531.
35. Marcus, 97 F.3d at 1139.
36. Id.
37. Marcus v. Iowa Pub. Television, 24 Media L. Rep. (BNA) 2531 (S.D. Iowa Oct.
9, 1996).
38. Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1139 (8th Cir. 1996).
39. Marcus, 24 Media L. Rep. (BNA) at 2531. The court did not want to immediately address whether or not "the case presented issues properly triable to a jury." Id.
Thus the court impaneled a jury and "informed the parties that the jury's verdict would
at least be considered advisory and might be deemed binding on all fact issues if the
court concluded the Seventh Amendment gave the parties a right to trial by jury." Id.
40. Marcus, 24 Media L. Rep. (BNA) at 2532.
480
CREIGHTON LAW REVIEW
[Vol. 31
affiliation; (5) Marcus failed to prove that his appearance on IPTV's
program would be newsworthy; (6) Marcus failed to prove that he was
excluded from IPTV's program due to IPTV disagreeing with his opinions on political issues; (7) IPTV proved that it excluded Marcus from
its program based upon "independent journalistic and editorial judgments" dealing with newsworthiness; and (8) IPTV proved that it "intended to open the Iowa press programs only to those Congressional
41
candidates whom [it] invited to appear."
The district court accepted the jury's findings and made one additional finding.4 2 Although agreeing with the jury that Marcus proved
IPTV's scheduled Iowa Press programs were debates, the district court
found that IPTV "did not intend the programs to be debates."4 3 The
court recognized, however, that "reasonable persons viewing the programs would have found the joint appearances of candidates on the...
programs to be 'debates.' 4 4 With the facts thus accepted, the district
45
court made six conclusions of law.
First, the court held that "[t]he Iowa Press programs constituted
limited public forums, because they were political debates staged by a
public television network."46 Second, the court determined Marcus
failed to prove that his rights under the First Amendment were violated because "[plersons presenting political viewpoints on a public
television network may be excluded from staged debates if the exclu47
sion is narrowly tailored and will serve compelling state interests."
Third, IPTV proved that it excluded Marcus from its programs based
upon such compelling state interests, and in compliance with a narrowly tailored and pre-determined station policy dealing with newsworthiness. 48 Fourth, IPTV's station policies were created in
49
compliance with state and federal law "to serve the people of Iowa."
Fifth, IPTV did comply with federal rules requiring that candidates be
41. Id.
42. Id. The court noted: "With hindsight, the court would have asked the jury one
additional question concerning the defendants' intent in selecting persons for the Iowa
Press program. I believe that I should have asked the jury, as a follow-up question to
special verdict question No. 1: Have the plaintiffs proved that the defendants intended
the Iowa Press programs to be 'debates?'" Id.
43. Id.
44. Id.
45. Id. at 2532-33.
46. Id. at 2533.
47. Id.
48. Id. The court stressed that IPTV did not exclude Marcus arbitrarily and did
not base its selection of candidates to appear on its program due to party affiliation. Id.
The overriding factor for IPTV's choice of candidates to appear on Iowa Press was the
candidate's newsworthiness. Id. The court also expounded upon the importance of allowing journalists to have "editorial discretion in determining the contents of [their]
programs." Id.
49. Marcus, 24 Media L. Rep. (BNA) at 2533.
1998]
THE FIRST AMENDMENT
afforded an opportunity to present their views on IPTV. 50 Finally, the
court found that Marcus was wrong to rely upon a recent Arkansas
case, Forbes v. Arkansas EducationalTelevision Commission ("Forbes
I?),51 as dispositive of the outcome of this case. 5 2
With the findings of fact as presented, the district court held in
favor of IPTV and dismissed Marcus' complaint. 53 Marcus then filed
an emergency motion seeking injunctive relief in the United States
Court of Appeals for the Eighth Circuit, which already had an appeal
pending from Marcus due to the district court's denial of his initial
requests for preliminary injunctive relief.54 The Eighth Circuit decided that the outcome of both Marcus' appeal of the district court's
decision, as well as his motion for emergency injunctive relief, could be
handled in one proceeding, thus avoiding "duplicative effort" and saving the court from "expend[ing] additional resources." 55 The court
heard the case in October while there were still two remaining Iowa
56
Press programs scheduled for which Marcus wanted to be included.
THE EIGHTH CIRCUIT'S HOLDING
On appeal, the Eighth Circuit denied injunctive relief 5 7 In so doing, the court relied upon a 1981 case, DataphaseSystems, Inc. v. C. L.
Systems, Inc.,58 as its guide to determine whether or not injunctive
relief was a proper remedy in the Marcus case. 5 9 In Dataphase,the
Eighth Circuit spelled out four factors as relevant in determining
whether a preliminary injunction should be issued.6 0 Namely, a court
must give consideration to: "(1) the threat of irreparable harm to the
movant; (2) the state of the balance between this harm and the injury
that granting the injunction will inflict on other parties litigant; (3)
the probability that [the] movant will succeed on the merits; and (4)
50. Id. Third-party candidates were "scheduled to appear on an upcoming Iowa
Press program." Id.
51. 93 F.3d 497 (8th Cir. 1996), cert. granted,,117 S. Ct. 1243 (1997). See infra
notes 320-73 and accompanying text (discussing Forbes v. Arkansas Educ. Television
Comm'n).
52. Marcus, 24 Media L. Rep. (BNA) at 2533-34.
53. Id. at 2534.
54. Marcus, 97 F.3d at 1138.
55. Id. at 1140.
56. Id. "Marcus" is being used in this Note as representative of all seven thirdparty candidates suing for access to the Iowa Press programs. Id. at 1138 & n.1. The
district for which Marcus was running for office had already been featured on the Iowa
Press program, thus only candidates Cuddehe and Badgett were affected by the outcome
of the appeal. Id.
57. Marcus, 97 F.3d at 1144.
58. 640 F.2d 109 (8th Cir. 1981).
59. Marcus, 97 F.3d at 1140.
60. Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 112-13 (8th Cir. 1981)
(citing Minnesota Bearing Co. v. White Motor Corp., 470 F.2d 1323 (8th Cir. 1973)).
CREIGHTON LAW REVIEW
[Vol. 31
the public interest."6 1 The Marcus court then addressed each of those
62
factors in turn.
The Eighth Circuit disagreed with the district court's holding that
Marcus had failed to show irreparable harm. 6 3 The court found that
appearing on the IPTV programs would be of "significant value" to
Marcus and could have a "favorable impact" on the voters.6 4 Focusing
on Marcus' argument that he had a First Amendment right to speak
on IPTV's limited public forum, the court held that such a violation of
rights would "constitute[ ] an irreparable harm."65 The court noted,
however, that such a harm would only apply if Marcus could show
66
that his First Amendment rights were violated by IPTV.
When focusing on the balance of harm to both parties, the Eighth
Circuit held that an injunction would harm IPTV's editorial rights to a
greater degree than the harm imposed on Marcus by denying an injunction. 6 7 The court noted that IPTV, as a media organization, must
be allowed to "make editorial decisions regarding the content of [its]
programming."68 Additionally, the court recognized that IPTV would
cancel the remaining debates "rather than impair [its] journalistic integrity and [its] credibility with [its] viewers" if forced to accept Mar69
cus onto its programs.
In examining the likelihood of Marcus' success on the merits, the
court held that "IPTV's regulation of speaker access 'survive[s] only if
[it is] narrowly drawn to achieve a compelling state interest.' 70 The
court went on to analyze IPTV's decision making process and concluded that IPTV was acting within responsible journalistic bounds by
excluding Marcus from their Iowa Press programs. 7 1 The basis for
61. Marcus, 97 F.3d at 1140 (quoting Dataphase,640 F.2d at 113).
62. Marcus, 97 F.3d at 1140.
63. Id.
64. Id. A recent poll has indicated that debates are the number-one "TV information sources that voters say are most valuable in making their ballot choices." USA
Snapshots:A look at statistics that shape the nation, USA TODAY, July 30, 1997, at Al.
The respective categories and percentages received in the poll are as follows: Debates =
36%; Newscasts = 30%; Public affairs/interview programs = 17%; Paid political ads =
6%; and Don't know/none = 11%. Id.
65. Marcus, 97 F.3d at 1140.
66. Id.
67. Id. at 1141.
68. Id. The court continued, "[i]nterference with that editorial discretion constitutes a significant injury to the editorial integrity of IPTV, which interferes with their
primary mission of serving the public." Id. (quoting Appellees' Memorandum in Opposition to Emergency Motion at 3, Marcus v. Iowa Pub. Television, 97 F.3d at 1137 (8th
Cir. 1996)(No. 96-3645).
69. Marcus, 97 F.3d at 1141. See infra notes 374-87 and accompanying text for
discussion of NETV and the canceled Nelson-Hagel debate.
70. Marcus, 97 F.3d at 1141 (quoting International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)).
71. Id. at 1141-44.
1998]
THE FIRST AMENDMENT
483
this finding was that IPTV had a responsibility to provide "newsworthy programs" to its viewers, and IPTV had done so within the
confines of appropriate editorial criteria. 7 2 The court held that "IPTV
has a compelling interest, in meeting its public service goals, of limiting access to newsworthy candidates. [The court] further agree[d]
73
that its methods were narrowly suited to achieving this goal."
Finally, the Eighth Circuit held that it was inherent for IPTV to
consider the newsworthiness of its programs in order to fulfill its obligations to the public interest. 74 The court acknowledged IPTV's duty
to present the citizenry of Iowa with important and significant issues.7 5 The court concluded its opinion by stating that "IPTV's professional broadcasters [were] generally better aware of what constitutes
appropriate programming than a group of federal judges." 76 Having
questioned whether injunctive relief was a proper remedy in accordin Dataphase, the Eighth Circuit
ance with the four factors set out
77
denied Marcus' injunctive relief.
THE DISSENTING OPINION
Circuit Judge C. Arlen Beam dissented. 78 Judge Beam argued
that Marcus was right to rely on the Forbes II decision previously
handed down by the Eighth Circuit only months earlier. 7 9 The Forbes
II case also dealt with a third-party candidate seeking to join a public
television debate.8 0 In Forbes II, the Eighth Circuit stated that the
public television station was wrong to'exclude the candidate based on
the station's determination that the candidate was not "politically viable."8 1 Judge Beam asserted that the inquiry in Marcus regarding
"newsworthiness" was no different than the inquiry in Forbes II regarding "political viability."8 2 Hence, Judge Beam stated that "[tihe
court (and the district court as well) seeks to distinguish the
83
indistinguishable."
72.
73.
74.
75.
76.
77.
78.
I"), 93
79.
80.
81.
82.
83.
Id. at 1142-44.
Id. at 1144.
Id. at 1142.
Id. at 1143.
Id. at 1144.
Id.
Id. (Beam, J., dissenting) (citing Forbes v. Arkansas Educ. Comm'n ("Forbes
F.3d 497 (8th Cir. 1996), cert. granted, 117 S. Ct. 1243 (1997)).
Id. (Beam, J., dissenting).
Id. (Beam, J., dissenting).
Id. (Beam, J., dissenting) (quoting Forbes 11, 93 F.3d at 505).
Id. (Beam, J., dissenting).
Id. (Beam, J., dissenting).
CREIGHTON LAW REVIEW
[Vol. 31
BACKGROUND
AN HISTORICAL PERSPECTIVE OF FEDERAL COMMUNICATIONS LAW
The broadcast spectrum was first utilized in the late nineteenth
and early twentieth centuries with the advent of radio.8 4 Before long,
the number of broadcasters sending out signals far outnumbered the
limited frequencies of airwaves available, thus creating chaos due to
signal interference.8 5 The federal government began attempting to
regulate access to the limited broadcast airwaves with the passage of
the Radio Act of 1912.86 By 1922, over 500 broadcasting stations oper-
ated across the United States.8 7 However, there were growing
problems in this burgeoning industry.8 8 Congress responded by passing the Radio Act of 1927 and established the Federal Radio Commission ("FRC") to supervise the airwaves, which were declared to be a
"public resource." 89 The regulatory scheme addressed allocating the
use of broadcast signals by requiring broadcasters to be licensed by
the government before broadcasting. 90
The Radio Act of 1927 was preceded by what would come to be
known as "the fairness doctrine." 9 1 In general, this doctrine required
that broadcasters present coverage of public issues with fairness by
providing the presentation of contrasting viewpoints, thus allowing
the public to hear all sides of an issue. 92 In other words, "[a] station
must permit reasonable opportunity for the presentation of views
which contrast those of persons who originally presented a controversial issue of public importance." 9 3 The goal of the fairness doctrine
was to guarantee diversity in what was being broadcast, thus protecting the interests of the listeners and not the broadcasters. 94 The FRC
was given authority to regulate the programs presented by the broadcasters and was able to deny broadcast license renewals for broadcasters who defied the FRC guidelines. 9 5
84. Gayle S. Ecabert, Comment, The Demise of the Fairness Doctrine:A Constitutional Reevaluation of Content-Based BroadcastingRegulations, 56 U. CIN. L. REV. 999,
1003-04 (1988).
85. Adrian Cronauer, The FairnessDoctrine:A Solution in Search of a Problem, 47
FED. COMM. L.J. 51, 57 (1994).
86. Cronauer, 47 FED. COMM. L.J. at 57; Radio Act of 1912, ch. 287, 37 Stat. 302.
87. Cronauer, 47 FED. COMM. L.J. at 58.
88.
Ecabert, 56 U. CIN. L. REV. at 1004.
89. Id. at 1004-05; Radio Act of 1927, ch. 169, 44 Stat. 1162.
90.
Ecabert, 56 U. CIN. L. REV. at 1004.
91. Id. at 1005.
92. Id. at 1001.
93.
94.
PHILLIP KEIRSTEAD, MODERN PUBLIC AFFAIRS PROGRAMMING 167 (1979).
DOM CARISTI, EXPANDING FREE EXPRESSION IN THE MARKETPLACE: BROADCASTING AND THE PUBLIC FORUM 74-75 (1992).
95.
Cronauer, 47 FED. COMM. L.J. at 58-59.
1998]
THE FIRST AMENDMENT
485
The authority over broadcasters first given to the FRC was transferred in 1934 to its successor, the Federal Communications Commission ("FCC"). 96 The FCC published an official pronouncement of the
fairness doctrine policies in 1948, which was developed based upon
previous FRC and FCC decisions. 97 Congress codified these policies
into law in 1959 when they amended the Communications Act of
1934.98 In 1969, the United States Supreme Court recognized and upheld the constitutionality of the fairness doctrine in Red Lion Broadcasting Co. v. FCC.99
In Red Lion, a radio station carried a 15 minute program, one in a
series called the "Christian Crusade," where the host accused an author of being a Communist, a defender of Alger Hiss, and one who
100
When
attacked J. Edgar Hoover, the CIA, and Barry Goldwater.
the author heard about the attack made upon his character, he complained to the FCC and demanded that the radio station give him free
air time to reply. 10 1 The FCC reviewed the case and agreed with the
author, telling the radio station to provide him with reply time in ac0 2
The radio station challenged
cordance with the fairness doctrine.'
to enforce the fairness docability
FCC's
the
of
the constitutionality
03
States Court of Appeals
United
the
to
appealed
station
The
trine.'
the FCC's posiaffirmed
which
Circuit,
of
Columbia
for the District
10 4
United States
the
to
appealed
then
station
radio
The
tion.
05
Supreme Court and was granted certiorari.'
While the Red Lion litigation was working its way through the
courts, the case of Radio Television News Directors Association v.
07
In RTNDA, a group of
United States ("RTNDA") 10 6 also ensued.'
broadcasters sought review of new rules promulgated by the FCC in
08
The
the United States Court of Appeals for the Seventh Circuit.'
96. Id. at 58.
97. Ecabert, 56 U. CIN. L. REV. at 1006-07.
98. Cronauer, 47 FED. COMM. L.J. at 60; Communications Act of 1934, ch. 652, 48
Stat. 1064.
99. Cronauer, 47 FED. COMM. L.J. at 61; 395 U.S. 367 (1969).
100. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 371 (1969). The Reverend Billy
James Hargis hosted the program. Red Lion, 395 U.S. at 371.
101. Red Lion, 395 U.S. at 371-72.
102. Id. at 372.
103. Red Lion Broad. Co. v. FCC, 381 F.2d 908, 917 (D.C. Cir. 1967), affd, 395 U.S.
367 (1969).
104. Red Lion, 381 F.2d at 930.
105. Red Lion, 395 U.S. at 367.
106. 400 F.2d 1002 (7th Cir. 1968), rev'd, 395 U.S. 367 (1969).
107. Red Lion, 395 U.S. at 367.
108. Radio Television News Dirs. Ass'n ("RTNDA") v. United States, 400 F.2d 1002,
1004 (7th Cir. 1968), rev'd, 395 U.S. 367 (1969). The broadcasters seeking review were
"[a]n unincorporated association of radio and television journalists and eight companies
holding licenses for radio and television stations." RTNDA, 400 F.2d at 1004. Separate
CREIGHTON LAW REVIEW
[Vol. 31
new FCC rules supposedly clarified a broadcaster's obligations with
respect to providing equal time to persons attacked on a broadcast and
enabled the FCC to more readily revoke a station's license.' 0 9 The
broadcasters believed the new rules were an unconstitutional attempt
to infringe the press' First Amendment rights. 1 10 The FCC claimed
that its new rules were "'simply a particular aspect of the Fairness
Doctrine,' and did 'not alter or add to the substance of the Doctrine. ' ""'
Because Red Lion also involved a person seeking equal
time broadcast rights after being attacked on the air, the Supreme
Court postponed further action in Red Lion pending the outcome of
RTNDA.112
In RTNDA, the Seventh Circuit determined that the FCC's new
mandatory guidelines took away too much of the broadcaster's discretion to choose programming. 113 Additionally, the circuit court noted
that the FCC could revoke a station's license on the basis of just one
broadcast, where the FCC previously made such decisions based on a
broadcaster's overall performance in a three year period. 114 Therefore, the new FCC guidelines were set aside as unconstitutional. 115
The FCC appealed to the United States Supreme Court. 116 The
Supreme Court granted certiorari to RTNDA and combined that case
117
with Red Lion for review.
The Supreme Court affirmed the District of Columbia Circuit's decision in Red Lion, and reversed the Seventh Circuit's decision in
RTNDA. 1 18 In both cases, the Court noted that the FCC was acting
within the scope of its congressionally delegated authorities in upholding the fairness doctrine. 119 The Court held that the broadcast of a
personal attack which arises from the discussion of public issues or
political endorsements triggers the need to allow a response. 120 The
Court also stated, "[i]t is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount." 12 1 The radio stations
petitions for review were also filed by CBS and NBC in the United States Court of Appeals for the Second Circuit. Id. The Second Circuit petitions were transferred to the
Seventh Circuit and consolidated with the RTNDA action. Id.
109. RTNDA, 400 F.2d at 1006.
110. Id.
111. Id. at 1005.
112. Id. at 1006 & n.9.
113. Id. at 1013.
114. Id.
115. Id. at 1020-21.
116. Red Lion, 395 U.S. at 367.
117. Id. at 370-71.
118. Id. at 375.
119. Id. at 385-86.
120. Id. at 391.
121. Id. at 390.
19981 '
THE FIRST AMENDMENT
argued that such a policy would lead to self-censorship to the point of
broadcasters rendering ineffective coverage of controversial public issues. 122 The Court minimized such a hypothesis, noting that the fairness doctrine had no such effect thus far and that the "possibility
[was] at best' speculative."1 23 However, the Court also left open the
door for further consideration when it said, "if experience with the administration of those doctrines indicates that they have the net effect
of reducing rather than enhancing the volume and quality of coverage,
there will be time enough to reconsider the constitutional
12 4
implications."
The fairness doctrine was again called into question when the
FCC ruled that broadcasters did not have to accept paid political announcements in Columbia Broadcasting System, Inc. v. Democratic
National Committee. 125 In CBS v. DNC, two political groups cited the
fairness doctrine as requiring broadcasters to air their paid advertisements. 126 In one action, the Business Executives' Move for Vietnam
Peace ("BEM") filed a complaint with the FCC after a radio station
refused to sell BEM air time "to broadcast a series of one-minute spot
announcements expressing BEM views on Vietnam." 127 In another
action, the Democratic National Committee ("DNC") requested a declaratory ruling from the FCC saying that "a broadcaster may not, as
a general policy, refuse to sell [air] time to responsible entities ... for
the solicitation of funds and for comment on public issues." 128 In separate opinions, the FCC rebuked both the BEM and the DNC, stating
there is not "a right to purchase advertising time to comment on public issues without regard to whether the broadcaster has complied
with the Fairness Doctrine."1 2 9 BEM and the DNC both appealed to
the United States Court of Appeals for the District of Columbia
Circuit.130
13
On appeal, the circuit court reversed the FCC in both cases. 1
The circuit court held that "'a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other
sorts of paid announcements are accepted,"' because "a broadcaster's
policy of airing commercial advertisements but not editorial advertise122.
123.
124.
125.
126.
(1973).
127.
128.
129.
130.
131.
Id. at 392-93.
Id. at 393.
Id.
412 U.S. 94 (1973).
Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 97-98
CBS v. DNC, 412 U.S. at 98.
Id.
Id. at 99.
Id. at 97.
Id. at 100.
CREIGHTON LAW REVIEW
[Vol. 31
ments constitutes unconstitutional discrimination."1 32 The FCC appealed to the United States Supreme Court, which granted writs of
certiorari in both cases and combined them into one decision. 133
The Supreme Court reversed the circuit court's decision and noted
that under the fairness doctrine "no private individual or group has a
right to command the use of broadcast facilities." 134 The Court then
discussed the long history of broadcasting in the United States and
interpreted that history as consistently allowing broadcasters "a substantial measure of journalistic independence."' 3 5 The Court agreed
with FCC reasoning that "so long as a [broadcaster] meets its 'public
trustee' obligation to provide balanced coverage of issues and events,
it has broad discretion to decide how that obligation will be met."i3 6
The Court stated that by denying editorial discretion on the part of
the broadcasters, every decision made by a network would fall prey to
constitutional scrutiny. 13 7 The Court said it was appropriate to note
that "[w]hat is essential is not that everyone shall speak, but that
everything worth saying shall be said."138 In his concurring opinion,
Justice William 0. Douglas agreed that editorial autonomy was necessary, arguing that "the old-fashioned First Amendment that we have
132. Id. (quoting Business Executives' Move for Vietnam Peace v. FCC, 450 F.2d
642, 646 (D.C. Cir. 1971), rev'd by, Columbia Broad. Sys., Inc. v. Democratic Nat'l
Comm., 412 U.S. 94, 97-98 (1973)).
133. Id. at 97.
134. Id. at 113, 132.
135. Id. at 116. The Court recognized that the United States Government had faced
"a fundamental choice between total Government ownership and control of the new medium - the choice of most other countries - or ...
a system of private broadcasters
licensed and regulated by the Government." Id. In choosing the latter, the government
allowed broadcasters to become "'public trustee[s]' charged with the duty of fairly and
impartially informing the public audience." Id. at 117. The Government, by and
through the FCC, then became the "'overseer' and ultimate arbiter and guardian of the
public interest." Id.
136. CBS v. DNC, 412 U.S. at 118-19. Senator Daniel K. Inouye echoed this sentiment when he said: "The fairness doctrine did not require that broadcasters provide
every side of an issue with the exact amount of time in precisely the same time period.
Instead, broadcasters simply had to ensure that their programming, taken as a whole,
presented issues of public importance and did so in a balanced fashion." Broadcasters'
Pub. Interest Obligationsand S. 217, the Fairnessin BroadcastingAct of 1991: Hearing
Before the Subcomm. on Communications of the Comm. on Commerce, Science, and
Transp., 102d Cong. 2 (1991).
137. CBS v. DNC, 412 U.S. at 120. The Court continued, stating that "[M]ore profoundly, it would be anomalous for us to hold, in the name of promoting the constitutional guarantees of free expression, that the day-to-day editorial decisions of broadcast
licensees are subject to the kind of restraints urged by respondents. To do so in the
name of the First Amendment would be a contradiction. Journalistic discretion would
in many ways be lost to the rigid limitations that the First Amendment imposes on
Government." Id. at 120-21.
138. CBS v. DNC, 412 U.S. at 122 (citation omitted).
1998]
THE FIRST AMENDMENT
it
is the Court's only guideline; and one hard and fast principle which
139
announces is that government shall keep its hands off the press."
140
The fairness doctrine was further defined in CBS, Inc. v. FCC.
In CBS v. FCC, the reelection committee for President Carter requested that the three major television networks provide air time to
run a 30-minute documentary highlighting Carter's administration
"in conjunction with President Carter's formal announcement of his
candidacy." 14 1 All three networks declined, noting that there were 14
candidates running for office and "accommodating potential requests
for equal treatment from other candidates ... would involve massive
disruptions of the regular entertainment and information schedule." 142 Carter's reelection committee then filed a complaint with the
FCC, asserting that the networks violated their duties to provide candidates with reasonable access in accordance with 47 U.S.C. section
312(a)(7). 143 The FCC agreed with the reelection committee, stating
that the networks must fulfill their legal obligations because the net44
The networks' reasons for not airing the adds were "deficient."'
works asked the FCC to reconsider its opinion, to which the FCC
merely clarified its previous decision. 14 5 The networks then appealed
to the United States Court of Appeals for the District of Columbia
1
Circuit. 46
The D.C. Circuit affirmed the FCC's orders, "holding that [47
U.S.C. section 312(a)(7)] created a new, affirmative right of access to
the broadcast media for individual candidates for federal elective office," and the FCC properly concluded that "the networks failed to apply the proper standards." 14 7 The networks then appealed to the
148
On apUnited States Supreme Court, which granted certiorari.
requirements
peal, the Supreme Court upheld the reasonable access
imposed on broadcasters by the FCC. 149 Additionally, the Court noted
that "[47 U.S.C.] section 312(a)(7) assures a right of reasonable access
to individual candidates for federal elective office, and the [FCC's] re139. Id. at 160-61 (Douglas, J., concurring).
140. 453 U.S. 367 (1981).
141. CBS, Inc. v. FCC, 453 U.S. 367, 371-72 (1981).
142. CBS v. FCC, 453 U.S. at 372 n.2. (quoting Letter from Raymond E. Dillon,
Director of Political Sales at CBS, to Gerald F. Rafshoon, President of the CarterMondale Presidential Committee (Oct. 17, 1979) (published in part in CBS, Inc. v. FCC,
453 U.S. at 372 n.2.)).
143. Id. at 373-74.
144. Id. at 374.
145. Id. at 374.
146. Id. at 374.
147. Id. at 375-76 (quoting CBS, Inc. v. FCC, 629 F.2d 1, 21 (D.C. Cir. 1980), affd,
CBS, Inc. v. FCC, 453 U.S. 367 (1981)).
148. Id. at 371, 376.
149. Id. at 396-97.
CREIGHTON LAW REVIEW
[Vol. 31
quirement that their requests be considered on an individualizedbasis is consistent with that guarantee." 150 Finally, the Court also
verbalized the respect which it would accord to FCC decisions, stating
that the FCC's "construction of the statute is entitled to judicial deference 'unless there are compelling indications that it is wrong."' 15 1
THE DEMISE OF THE FAIRNESS DOCTRINE
By 1985, after 50 years of developing the fairness doctrine, the
FCC "made a one hundred and eighty degree change in its position. ' 152 After making an official inquiry into the effectiveness of the
fairness doctrine, the FCC concluded that the fairness doctrine actually inhibited the dissemination of varying viewpoints to the viewers. 153 The FCC believed that broadcasters intentionally avoided
reporting on certain issues because, if they were to do so, the broadcasters would open themselves up to great expenditures of money and
air time to present contrary viewpoints.' 5 4 Additionally, the FCC concluded that the fairness doctrine was no longer necessary because of
the development of new technologies and the vast amount of information available in the marketplace. 15 5 Viewers of television can now
tune into specialized "narrowcasting" that targets specific audiences
by providing specially tailored programs in news, sports, movies,
weather, religion, home shopping, erotic titillation, ethnic culture, and
a myriad of other programming.' 56 Similarly, listeners of radio can
now tune into formats for country, jazz, rock, talk, religion, weather,
or any other variety of radio specialty. 157 Thus, the increase in the
type and amount of information sources available obviated the need
58
for the fairness doctrine.'
Because restrictions on the First Amendment rights of broadcasters were approved in the name of providing the public interest with
varying viewpoints, and because it was determined that the public
had access to plenty of viewpoints in numerous media outlets, the constitutional bases for supporting the fairness doctrine no longer exist.159 However, having concluded that the fairness doctrine was no
150.
151.
Id. at 389 (emphasis in the original).
Id. at 390 (quoting Red Lion, 395 U.S. at 381).
152.
Ecabert, 56 U. CIN. L. REV. at 1009-10.
153. Id. at 1010.
154. Id.
155. Id. at 1012-15. "Since 1949, the number of radio stations serving the American
public has almost quadrupled, while the number of television stations has increased
from 51 to 1206." Id. at 1013.
156. Cronauer, 47 FED. COMM. L.J. at 72.
157. Id. at 72.
158. Ecabert, 56 U. CIN. L. REV. at 1010.
159. Id. at 1010-16.
19981
THE FIRST AMENDMENT
longer a valid policy, the FCC initially "refused to curtail its enforcement of the Doctrine without guidance from the Congress or the judino
ciary." 160 In 1987, however, the FCC tired of enforcing a doctrine it 16
1
longer believed in, and "formally renounced the Fairness Doctrine."
The ensuing growth of "opinion oriented programming" since the
FCC's renunciation of the fairness doctrine is viewed by many as evidence of the "inhibiting effect" that the doctrine had. 162 Today, the
free marketplace of ideas allows all viewpoints with a constituency to
be adequately heard.163
Since the FCC's 1987 decision, Congress has tried unsuccessfully
to reinstate the FCC's previously enforced interpretations of the fairness doctrine by enacting them into law.1 64 Such attempts were met
by opposition from Presidents Reagan and Bush, and attempts to enact such legislation have not been successful under President
Clinton.165
CODE SECTIONS INVOLVING ACCESS TO THE AIRWAVES
There are three particular code provisions relevant to a discussion
of whether political candidates seeking public federal office have a
right to demand air time from broadcasters to disseminate their views
to voters.16 6 First, 47 U.S.C. section 309(a) provides the requirements
for a broadcaster applying for a license to broadcast over United
States airwaves. 16 7 Second, 47 U.S.C. section 315 details the obligations required of broadcasters in presenting candidates for public office on the airwaves. 16 8 This is sometimes referred to as the "equal
160. Id. at 1016.
161. Cronauer, 47 FED. Comm. L.J. at 62.
162. Id. Between 1987 and 1994, "the number of radio talk shows jumped from 400
to more than 900." Id. An example of one of the more successful and widely discussed
talk radio shows would be the Rush Limbaugh show. Id. at 63 n. 71.
163. Cronauer, 47 FED. Comm.L. J. at 74. One commentator has noticed that "[ilf
there is, in fact, an audience for the message, one form of the media or another can be
counted on to exploit it. If there is no such audience, there is no need to compel one form
of the media to be a voice crying in the wilderness." GEORGE H. SHAPIRO, PHILIP KuRLAND & JAMES P. MERCURIO, 'CABLE SPEECH': THE CASE FOR FIRST AMENDMENT PROTECTION at xii (1983). After all, "isit really necessary to the proper functioning of a
democracy that the federal government assure platforms in every medium, in every
community, for the rantings of bizarre conspiracy theorists, paranoid delusionists, fiatearthers, anarchists, and others without any significant constituency?" Cronauer, 47
FED. Comm. L. J. at 74.
164. Cronauer, 47 FED. Comm. L.J. at 62.
165. Id. at 62-64, 75-76.
166. 47 U.S.C.A. § 309(a) (West 1991 & Supp. 1997); 47 U.S.C. § 315 (1994); 47
U.S.C.A. § 312 (West 1991 & Supp. 1997).
167. 47 U.S.C.A. § 309(a).
168. 47 U.S.C. § 315.
CREIGHTON LAW REVIEW
[Vol. 31
time doctrine.' 6 9 Third, 47 U.S.C. section 312(a)(7) outlines the administrative sanctions that can be brought against a broadcaster for
failing to allow reasonable access to candidates and for violating the
170
aforementioned laws.
In order to obtain a license from the FCC, prospective broadcast17 1
ers must first meet the requirements of 47 U.S.C. section 309(a).
One of the considerations made by the FCC in granting those licenses
is "whether the public interest, convenience, and necessity will be
served by the granting of such application." 17 2 Senator Daniel K. Inouye of Hawaii, Chairman of the Subcommittee on Communications,
has said that the reason for requiring broadcasters to act in the "pub173
lic interest" is because of the scarcity of the available frequencies.
Because broadcast frequencies are a limited commodity, "broadcasters
174
have special obligations and should operate as public trustees."
However, there is no precise definition outlining what it is that broad17 5
casters must do to fulfill their "public interest" obligations.
Congress has somewhat outlined public interest obligations with
respect to a broadcaster's responsibility to present federal candidates
for public office to the voters via the airwaves. 176 Equal opportunity
requirements are the focus of 47 U.S.C. section 315.177 The provision
specifically provides, "[i]f any licensee shall permit any person who is
a legally qualified candidate for any public office to use a broadcasting
station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting itation.' 7 s This
provision is sometimes referred to as the "equal time" doctrine,
although "equal opportunity" is a more accurate description because
there is no guarantee that any candidate will receive any air time at
79
all.1
Section 315 outlines various ways in which a candidate could appear on the news without triggering the equal time requirement.' 8 0
169. ANDREW 0. SHAPIRO, MEDIA ACCESS: YouR RIGHTS TO EXPRESS YOUR VIEWS ON
RADIO AND TELEVISION 50-51 (1976).
170. 47 U.S.C.A. § 312(a)(7).
171. 47 U.S.C.A. § 312(a)(7); 47 U.S.C.A. § 309(a).
172. 47 U.S.C.A. § 312(a)(7); 47 U.S.C.A. § 309(a).
173. Broadcasters'Pub. Interest Obligationsand S. 217, the Fairness in Broadcasting Act of 1991: Hearing Before the Subcomm. on Communications of the Comm. on
Commerce, Science, and Transp., 102d Cong. 1 (1991) (opening statement of Sen. Daniel
K. Inouye, Chairman, Subcomm. On Communications of the Comm. on Commerce, Science, and Transp.).
174. Id.
175. KEIRSTEAD, supra note 93, at 154.
176. 47 U.S.C. § 315.
177.
Id.
178. Id.
179.
SHAPIRO, supra note 169, at 50-51.
180.
47 U.S.C. § 315(a).
1998]
THE FIRST AMENDMENT
The law also provides that "[n]o obligation is imposed under this subsection upon any licensee to allow the use of its station by any such
candidate."181 Therefore:
[tihe equal-time rule remains legally inoperative until it is
triggered by a candidate's "use" of a broadcasting station.
Without such a use, the broadcaster has no equal-time obligations; he is not required to seek out candidates and give them
air time or offer it for sale. All the equal-time rule says is, if
the broadcaster does let one candidate use his station, then
he must afford equal opportunity to opposing candidates. But
if that first candidate never uses the station, the broadcaster's programming will remain totally unaffected by the
equal-time rule.182
Prior to 1987, the FCC policy in regard to this section had "generally been to defer to the reasonable, good faith judgment of licensees
as to what constitutes 'reasonable access' under all the circumstances
present in a particular case." 1 83 The FCC held a hearing in 1978 to
determine whether or not that policy was "manageable and equitable"
for both candidates and broadcasters. 1 84 There were advocates on all
sides of the issue. 18 5 Some organizations felt that no additional guidance was necessary, some believed any further guidance by the government would be improper or illegal, and still others wanted the FCC
to promulgate additional rules and guidelines to further clarify when
a station had to provide access to candidates.' 86 Ultimately, the FCC
decided to keep the policy as it stood, allowing broadcasters to judge
when they should grant candidates' requests for air time in compli187
ance with the "reasonable access" requirement of section 312(a)(7).
Section 312(a)(7) of Title 47 of the United States Code allows for
the revocation of station licenses or construction permits for, among
other things, "willful or repeated failure to allow reasonable access to
or to permit purchase of reasonable amounts of time for the use of a
broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy."' 8 8 One writer once described
this policy of the FCC "as a tool to threaten the broadcaster." 18 9 He
further compared the whole myriad of FCC regulations as "a forest
181. Id.
182. SHAPIRO, supra note 169, at 51.
183. In re Comm'n Policy in Enforcing § 312(a)(7) of the Communications Act, 68
F.C.C.2d 1079 (1978).
184. In re Comm'n Policy, 68 F.C.C.2d at 1079-80.
185. Id. at 1080-84.
186. Id. at 1080-81. These views were advanced by ABC, CBS, and Campaign Media Consultants, Inc., respectively. Id.
187. In re Comm'n Policy, 68 F.C.C.2d at 1079-80.
188. 47 U.S.C. § 312(a)(7).
189. KEISTEAD,supra note 93, at 155.
CREIGHTON LAW REVIEW
[Vol. 31
with a few tall trees and a great tangle of underbrush," with section
312(a)(7) serving as one of the "trees."190
Broadcasters have advocated that the threat of losing their license is enough to keep them accountable for their decisions, and
therefore the broad language of the federal laws will suffice. 191 However, the FCC has not revoked a license "for failure to provide public
interest programming" in 20 years.1 92 Thus, critics have said that the
broadcasters lack appropriate guidelines in deciding whose views get
heard, and more guidance should be promulgated to provide certainty. 19 3 The Public Broadcasting Service ("PBS") suggested that
only if the broadcaster "grossly abused" their discretion should the
penalty of license revocation be considered. 19 4 Therefore, an examination of First Amendment case law and how it impacts broadcasters is
19 5
now in order.
FIRST AMENDMENT LAW
Strict Scrutiny for Political Speech
The Supreme Court has held on a number of occasions that political beliefs deserve the utmost protection under the First Amendment. 196 In Elrod v. Burns,1 9 7 the Supreme Court held that employee
dismissals based on political party patronage constituted an infringement on the employees' First Amendment rights. 19s In Elrod, a group
of Republican non-civil-service employees claimed "that they were discharged or threatened with discharge solely for the reason that they
19 9
were not affiliated with or sponsored by the Democratic Party."
The employees sought declaratory and injunctive relief for violations
of their First and Fourteenth Amendment rights, suing the Sheriff of
190. Id.
191. In re Comm'n Policy, 68 F.C.C.2d at 1080-81. (Stating: "'[Tihe need to accord
great latitude to the judgment of the broadcaster as to what constitutes reasonable access is understood by the severity of the ultimate penalty for violation of § 312(a)(7)'revocation of license.") (quoting the -National Ass'n of Broad.).
192. Reed E. Hundt, The Public'sAirwaves: What Does the Public Interest Require of
Television Broadcasters?,45 DuKE L. J. 1089, 1094 (1996). Hundt states: "Starting in
the 1980's, the FCC ... began the practice of renewing all broadcast licenses without
ever finding a broadcaster to have failed to serve the public interest. In renewal proceedings every five years since the late 1970's, the FCC has renewed almost every single
" Hundt,
broadcast license at least three times, and has taken away not one license ....
45 DuKE L.J. at 1094.
193. In re Comm'n Policy, 68 F.C.C.2d at 1081.
194. Id.
195. See infra notes 198-373 and accompanying text.
196. See supra notes 3-4 and accompanying text; See infra notes 197-207 and accompanying notes.
197. 427 U.S. 347 (1976).
198. Elrod v. Bums, 427 U.S. 347, 372-73 (1976).
199. Elrod, 427 U.S. at 347, 350.
THE FIRST AMENDMENT
1998]
Cook County, and others, in the United States District Court for the
Northern District of Illinois. 20 0 The district court "ultimately dismissed their complaint for failure to state a claim upon which relief
could be granted," because the employees did not "make an adequate
showing of irreparable injury."20 1 The employees appealed, and the
United States Court of Appeals for the Seventh Circuit reversed and
remanded the district court's decision. 20 2 The Sheriff appealed to the
20 3
United States Supreme Court and certiorari was granted.
The Supreme Court stated that First Amendment rights are not
absolute; the right may be abridged where the interest advanced is
paramount, "and the burden is on the government to show the existence of such an interest."20 4 The Court noted that a person's political
beliefs and the right to express those beliefs are core activities guaranteed by the First Amendment. 20 5 Hence an "exacting scrutiny" must
be applied when such First Amendment rights are impaired, and if the
restriction is to survive it must advance an interest of paramount import. 20 6 The Court stated that the concept of First Amendment rights
is so important that "[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable
20 7
injury."
Public Forum
Part of the exacting scrutiny applied by the courts in First
Amendment analysis is to examine the type of forum involved where
First Amendment rights have been restricted. 2 08 In Perry Education
Association v. Perry Local Educators' Association,20 9 the United
States Supreme Court addressed the existence of a right to access
public property and the limitations on such a right. 2 10 In Perry, the
Supreme Court determined what type of forum was created by a
school district's inter-school mail system. 2 11 The issue of forum arose
because the union representing the teachers included, as part of its
agreement, that no other union could distribute material to the teach200. Id. at 350.
201.
202.
203.
Id.
Burns v. Elrod, 509 F.2d 1133, 1134 (7th Cir. 1975), affd, 427 U.S. 347 (1976).
Elrod, 427 U.S. at 350-51.
204.
205.
206.
207.
208.
209.
210.
211.
Id. at 362.
Id. at 356.
Id. at 362.
Id. at 373. (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).
See infra notes 209-30 and accompanying text.
460 U.S. 37 (1983).
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).
Perry, 460 U.S. at 39.
CREIGHTON LAW REVIEW
[Vol. 31
ers via the inter-school mail system. 2 12 A rival union then filed an
action in the United States District Court for the Southern District of
Indiana against the union representing the teachers and individual
members of the school board. 2 13 The rival union claimed that barring
access to the teachers' inter-school mail system violated its constitutional rights under the First and Fourteenth Amendments. 2 14 The
district court granted summary judgment for the defendants, and the
rival union appealed to the United States Court of Appeals for the
2 15
Seventh Circuit.
The circuit court reversed the district court's holding, stating that
the school board did not provide an independent reason why denying
access to other unions was desirable. 2 16 The teachers' union then appealed to the United States Supreme Court, which reversed the circuit
court decision. 2 17 On appeal, the Supreme Court held that "[tihe
existence of a right of access to public property and the standard by
which limitations upon such a right must be evaluated differ depending on the character of the property at issue."2 18 Based upon prior
holdings, three different types of public property were articulated to
be in existence, thus resulting in three different levels of First Amend2 19
ment analysis.
First, the Supreme Court addressed "traditional" public forums,
forums historically recognized as easily accessible places where people
traditionally gather to express their views. 2 20 Examples of such forums would include streets and parks. 2 2 1 The Court noted that the
government cannot restrict speech based on its content in such places
without demonstrating a compelling state interest, and that the restriction is narrowly drawn to serve that interest. 22 2 Further, the
Court stated that the government may restrict the time, place, and
manner of speech, based on content-neutral restrictions, only if the
restrictions are "narrowly tailored to serve a significant government
212. Id.
213. Id. at 41.
214. Id.
215. Perry Local Educators' Ass'n v. Hohlt, 652 F.2d 1286, 1289 (7th Cir. 1981),
rev'd, 460 U.S. 37 (1983).
216. Perry, 460 U.S. at 41.
217. Id. at 41, 55.
218. Id. at 44.
219. Id. at 45-46.
220. Id. at 45. In describing "these quintessential public forums," the Court did not
actually label them to be "traditional public forums." Id. However, these types of forums are commonly referred to as "traditional public forums." CARISTI, supra note 94, at
65.
221. Perry, 460 U.S. at 45.
222. Id.
19981
THE FIRST AMENDMENT
interest and leave open ample alternative channels of
22 3
communication."
The Court recognized a second category of forums as "public property which the state has opened for use by the public as a place for
expressive activity."2 24 Examples of such forums would include university meeting rooms and municipal theaters. 2 25 The Court noted
that states are not required to keep such forums open indefinitely, but
as long such facilities are open, then the states are "bound by the same
2 26
standards as apply in a traditional public forum."
The Court also recognized a third category of forum as those
places where people did not historically have a right to gather and
communicate because such places, although public property, were not7
22
traditionally used for free speech, nor designated for such activity.
Examples of such forums would include military bases and prison
grounds. 228 The Court emphasized "that the 'First Amendment does
not guarantee access to property simply because it is owned or controlled by the government.' 22 9 According to the Court, just as a private property owner can restrict the use of such property, so too can
23 0
the State.
When examining a place and trying to determine within which
forum it should be categorized, the Supreme Court has recognized additional elements to be taken into consideration. 2 3 ' In addition to examining the kind of property that is at issue in forum analysis, the
23 2
Court has also focused "on the access sought by the speaker."
In Cornelius v. NAACP Legal Defense and Education Fund,
2 33
the government was sued by several fundraising organizations
for not allowing them to take part in the Combined Federal Campaign
("CFC"), an annual charity drive allowed to take place in the federal
workplace. 23 4 The CFC, under new guidance provided by President
Inc.,
223.
224.
Id.
Id. This second category of public forums is known as "designated public fo-
rums." CAJwsTI, supra note 94, at 65.
225. Perry, 460 U.S. at 45 (citing Widmar v. Vincent, 454 U.S. 263 (1981); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)).
226. Id. at 46.
227. Id.
228. CAmusTi, supra note 94, at 66 (citations omitted).
229. Perry, 460 U.S. at 46 (quoting United States Postal Serv. v. Council of Greenburgh Civic Ass'n, 453 U.S. 114, 129 (1981)).
230. Id.
231.
232.
(1985).
233.
234.
donated
CARISTI, supra note 94, at 66.
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 801
473 U.S. 788 (1985).
Cornelius, 473 U.S. at 791, 793. The CFC results in over $100 million being
to charitable organizations each year. Id. at 791.
CREIGHTON LAW REVIEW
[Vol. 31
Reagan, limited participation to "voluntary, charitable, health and
welfare agencies that provide or support direct health and welfare
services to individuals or their families," and not "[a]gencies that seek
to influence the outcomes of elections or the determination of public
policy through political activity or advocacy, lobbying, or litigation on
behalf of parties other than themselves." 235 The fundraising organizations excluded from CFC participation filed an action against the
government, charging that restricting them from seeking charitable
contributions was a violation of their First Amendment and equal protection rights under the Fifth Amendment. 236 The United States District Court for the District of Columbia agreed with the petitioners,
granting them summary judgment and stating that such an exclusion
was unconstitutional as a content-based restriction. 2 37 The government appealed to the United States Court of Appeals for the District
of Columbia Circuit, where the decision was affirmed. 238 The government then appealed to the United States Supreme Court, which
23 9
granted certiorari and reversed.
The Court considered whether or not charities excluded from par240
ticipation in the CFC had a First Amendment right to participate.
The Court focused on the speakers, the property in question, and the
access being sought by the speaker in regards to the property. 24 1 The
Court held that the speakers were "seek[ing] access to a particular
means of communication." 24 2 Thus, it was the CFC program, and not
the actual workplace property, that was determined to be the proper
forum for analysis. 2 43 Therefore, the Court determined such a forum
24 4
was a non-public forum for purposes of First Amendment analysis.
24 5
In InternationalSociety for Krishna Consciousness,Inc., v. Lee,
the Supreme Court further clarified what kinds of First Amendment
restrictions on speech within a public forum would be constitutional. 24 6 In Krishna, a nonprofit religious group sought access to distribute literature in New York and New Jersey airport terminals, a
235. Cornelius, 473 U.S. at 794-95 (quoting Exec. Order No. 12,353, 3 C.F.R. 139
(1983)).
236. Id. at 795-96.
237. Id. at 796.
238. NAACP Legal Defense & Educ. Fund, Inc. v. Devine, 727 F.2d 1247, 1248-49
(D.C. Cir. 1984), rev'd, 473 U.S. 788 (1985).
239. Cornelius, 473 U.S. at 790.
240. Id. at 797.
241. Id. at 801.
242. Id.
243. Id.
244. Id. at 806.
245. 505 U.S. 672 (1992).
246. International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677-78
(1992).
19981
THE FIRST AMENDMENT
47
The Krishna socipractice forbidden by Port Authority regulations. 2
therefore,
property;
forum
public
were
airports
the
that
ety claimed
Authority
Port
the
when
violated
were
rights
their First Amendment
2 48
DisStates
United
The
literature.
did not allow them to distribute
the
with
agreed
York
New
trict Court for the Southern District of
249
disThe
favor.
Krishnas, and entered summary judgment in their
trict court held that the airport terminals constituted traditional public forums and that a restriction against literature distribution "could
be sustained only if it was narrowly tailored to support a compelling
2 50
state interest."
The Port Authority appealed to the United States Court of Appeals for the Second Circuit. 25 1 The Second Circuit affirmed in part,
holding that the Port Authority could not restrict distribution of liter25 2
However, the Secature by the Krishnas in the airport terminals.
ond Circuit reversed the district court's holding in regard to forum,
2 53
Both parties
stating that airport terminals are not public forums.
then petitioned the United States Supreme254Court for certiorari, and
the Supreme Court granted loth petitions.
In discussing forums where government property is often used by
people to speak out, the Supreme Court noted that restrictions against
speaking would "survive only if they are narrowly drawn to achieve a
compelling state interest."25 5 Furthermore, because the government
property was not a public forum, such restrictions "'need only be reasonable; [they] need not be the most reasonable or the only reasonable
limitation." 2 56 Recognizing that the Port Authority allowed distribution of materials and various solicitations to occur on the sidewalk areas outside of the terminals, the Court held that it was reasonable for
the Port Authority to restrict such activities inside the terminals due
25 7
Hence, the
to potential congestion and passenger inconvenience.
258
decision.
Circuit's
Second
the
Court affirmed
247.
248.
249.
250.
251.
(2d Cir.
252.
253.
254.
255.
256.
257.
258.
Krishna, 505 U.S. at 674-75.
Id. at 676-77.
Id.
Id. at 676.
International Soc'y for Krishna Consciousness, Inc. v. Lee, 925 F.2d 576, 579
1991), affd in part by, 505 U.S. 672 (1992).
Krishna, 925 F.2d at 582.
Krishna, 505 U.S. at 677.
Id.
Id. at 678.
Id. at 683 (quoting United States v. Kokinda, 497 U.S. 720, 730 (1990)).
Id. at 684-85.
Id. at 685.
500
CREIGHTON LAW REVIEW
[Vol. 31
Equal Time Access for Political Candidates
In the past, political candidates campaigned directly to the voters
whom they were seeking to influence. 2 59 A successful politician was
able to speak directly to his constituents and could often depend upon
party-controlled newspapers to bring the voters his message. 2 60 Thus,
the message given to voters was disseminated directly through the
candidate or through a medium controlled by the candidate's political
party. 26 1 In the age of television, candidates must depend upon a media "that they do not control."26 2 This gives the media a great deal of
power when deciding which candidates should receive coverage, what
parts of their message should be shown to the viewers, and which candidates should be ignored altogether. 26 3 Thus, in all parts of the country, "making the news" becomes critical to any candidacy, as
264
demonstrated by the following cases.
The Supreme Court has provided specific guidance regarding candidates' rights in accordance with the federal laws. 26 5 In Miami Herald Publishing Co. v. Tornillo,26 6 the United State Supreme Court
held a Florida law unconstitutional that required newspapers to give
equal space for political candidates to reply to editorial criticisms. 2 67
In Tornillo, a newspaper published editorials on two different occasions that were critical of state congressional candidate Pat L.
Tornillo, Jr.268 Tornillo demanded that the newspaper print his replies to their criticism, citing a Florida statute that provided for a
"right of reply." 269 When the newspaper refused to print Tornillo's reply, he sought relief in the Circuit Court of Dade County, Florida. 2 70
The circuit court denied the relief sought by Tornillo, finding that
the state statute was an unconstitutional infringement on freedoms
guaranteed to the press by the First and Fourteenth Amendments. 27 1
The Supreme Court of Florida reversed, holding that free speech was
actually enhanced by requiring newspapers to print contrary opinions,
259. STEPHEN ANSOLABEHERE, Roy BEHR & SHANTO IYENGAR, THE MEDIA GAME:
AMERICAN POLITICS IN THE TELEVISION AGE 1 (1993).
260.
261.
262.
263.
264.
1990).
265.
266.
267.
268.
269.
270.
actual
271.
Id.
Id.
Id. (emphasis in the original).
Id. at 1-3.
Id at 3; Chandler v. Georgia Pub. Telecomm. Comm'n, 917 F.2d 486 (11th Cir.
See infra notes 266-75 and accompanying text.
418 U.S. 241 (1974).
Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974).
Tornillo, 418 U.S. at 243.
Id. at 243-44.
Id. at 244. Tornillo was seeking declaratory and injunctive relief, along with
and punitive damages. Id.
Tornillo, 418 U.S. at 245.
19981
THE FIRST AMENDMENT
because doing so would further "'the free flow of information to the
public." 2 72 The newspaper sought review of the Supreme Court of
Florida's decision in the United States Supreme Court, which reversed. 2 73 The Supreme Court held that forcing a newspaper to print
certain material would be equivalent to restricting a newspaper from
printing certain material, a practice forbidden as a clear constitu274
The Court also noted
tional limitation imposed on the government.
goal, but press
desirable
undoubtedly
an
is
press
responsible
that "[a]
Constitution and like many
responsibility is not mandated by the
27 5
other virtues it cannot be legislated."
In addition to seeking access in the print media, candidates have
27 6
In Kennedy For Presialso sought access to the broadcast media.
2 77
dent Committee v. FCC, the United States Court of Appeals for the
District of Columbia Circuit held that the FCC was correct in relying
upon broadcasters' decisions as to whether or not a candidate appearing on the news triggered the need to give an equal opportunity to
other candidates. 278 In Kennedy, Senator Edward M. Kennedy petitioned the FCC to give him an opportunity to respond to comments
27 9
Both
made by President Carter in a presidential press conference.
Kennedy and Carter were vying for the presidential nomination of
their political party for president in 1980, so Kennedy asserted that
the networks carrying Carter's comments about the upcoming election
had to give Kennedy an equal airing of his views in accordance with 47
U.S.C. section 315(a). 28 0 The FCC denied Kennedy's request, holding
that President Carter's press conference fell within section 315(a)'s exemptions as "on-the-spot coverage of bona fide news events," and,
28 1
therefore, the equal opportunity requirement was not triggered.
The FCC also took notice of the fact that Kennedy "had presented no
evidence that the networks were not exercising good faith journalistic
judgment in appraising the President's press conference as news272. Id. (quoting Tornillo v. Miami Herald Publ'g Co., 287 So.2d 78, 82 (Fla. 1973),
rev'd 418 U.S. 241 (1974)).
273. Id. at 247-58.
274. Id. at 256, 258 (emphasis added). This logic was also evident in the Circuit
Court's decision, when it "concluded that dictating what a newspaper must print was no
different from dictating what it must not print." Id. at 245.
275. Tornillo, 418 U.S. at 256.
276. See infra notes 277 to 372 and accompanying text.
277. 636 F.2d 417 (D.C. Cir. 1980).
278. Kennedy for President Comm. v. FCC, 636 F.2d 417, 419-20 (D.C. Cir. 1980).
279. Kennedy, 636 F.2d at 419-20. The television networks that carried President
Carter's press conference live in prime time were ABC, CBS, NBC, and PBS. Id. at 420
n.1.
280. Kennedy, 636 F.2d at 419-20.
281. Id. at 420-21.
502
CREIGHTON LAW REVIEW
[Vol. 31
worthy." 28 2 Kennedy asked for a reconsideration by the FCC, but his
28 3
request was denied.
Kennedy then appealed the FCC's decision to the United States
Court of Appeals for the District of Columbia Circuit. 28 4 In affirming
the FCC's decision, the D.C. Circuit acknowledged that Congress did
not intend the equal opportunity provision of section 315(a) to be absolute. 285 Rather, the D.C. Circuit recognized that a candidate's right to
be heard must be balanced by: (1) the need to encourage networks to
cover political events, and (2) allowing broadcasters to maintain
"traditional independent journalistic judgment with respect to [the]
broadcasting of such events."28 6 Hence, the court recognized that the
legislative aim behind section 315(a) was to protect the media's right
to cover news events concerning political candidates. 28 7
In another media access case, Chandler v. Georgia Public Telecommunications Commission,28 8 Walker Chandler was a Libertarian
candidate seeking the office of lieutenant governor of Georgia. 28 9
When the Georgia Public Telecommunications Commission ("GPTC")
decided to host a debate among the lieutenant governor candidates,
they invited only the Democratic and Republican nominees to attend.2 90 Although refusing to allow Chandler into its debate, GPTC
did offer Chandler an opportunity to get on the air at another time. 2 9 1
Subsequently, Chandler filed a motion for a temporary restraining order to prevent the debate from occurring without him because he believed such an exclusion violated his First and Fourteenth
Amendment rights under the federal Constitution. 29 2
The United States District Court for the Northern District of
Georgia, Atlanta Division, agreed to hear Chandler's motion. 29 3
GPTC argued that the district court had no jurisdiction and the matter should be handled by the FCC in accordance with 47 U.S.C. section
315(a). 29 4 The court articulated that Chandler was not suing the
282. Id. at 422.
283. Id.
284. Id.
285. Id. at 423-24.
286. Id. at 424.
287. Id.
288. 917 F.2d 486 (11th Cir. 1990).
289. Chandler v. Georgia Pub. Telecomm. Comm'n, 749 F. Supp. 264, 265 (N.D. Ga.
1990), vacated, 917 F.2d 486 (11th Cir. 1990).
290. Chandler, 749 F. Supp. at 265.
291. Id.
292. Chandler,749 F. Supp. at 265-66. GPTC was also sponsoring a debate between
the Democratic and Republican nominees for governor, so Libertarian gubernatorial
candidate Carole Ann Rand joined Chandler's action to seek access for herself to that
debate. Id. at 265.
293. Chandler, 749 F. Supp. at 265.
294. Id. at 266 & n.3.
1998]
THE FIRST AMENDMENT
GPTC in its capacity as broadcasters, nor was Chandler seeking an
equal opportunity under section 315(a). 29 5 Rather, the court said
Chandler was suing GPTC "in their capacities as state officials for alleged constitutional violations." 2 96 The district court then held that
GPTC violated Chandler's freedom of speech and equal protection
2 97
rights under the First and Fourteenth Amendments, respectively.
The district court in Chandler found that GPTC's exclusion of
third-party candidates from the debate was a content-based exclusion. 298 By limiting the number of qualified candidates who could express their viewpoints, the court held that GPTC was guilty of "a
2 99
constitutionally impermissible prior restraint based upon content."
Also, in regards to the equal protection claim, the court found that
GPTC did not offer "any legitimate public purpose or rational purpose
for excluding the third-party candidates." 30 0 The court flatly rejected
GPTC's journalistic right to decide which candidates were news30 1
worthy and of interest to the public.
GPTC appealed to the United States Court of Appeals for the
Eleventh Circuit, which reviewed the decision of the district court for
abuse of discretion. 30 2 The Eleventh Circuit vacated the district
court's restraining order and instructed the district court to dismiss
the complaint. 30 3 The court found that GPTC had First Amendment
editorial rights and an obligation to use those rights in the best interest of the citizens of Georgia. 30 4 As for the equal protection claim, the
court found GPTC's reasons for excluding Chandler to be rational, and
30 5
therefore constitutional.
The Eighth Circuit has also seen several recent cases and events
30 6
In DeYoung v. Patten,30 7
related to political debate participants.
Garry DeYoung was a legally qualified candidate running for the office
of United States Senator from Iowa in -1984.308 DeYoung charged that
Iowa Public Television ("IPTV") violated his First Amendment rights
295. Id. at 266-67.
296. Id. at 266.
297. Id. at 268-69.
298. Id. at 268.
299. Id.
300. Id. at 269.
301. Id. at 268.
302. Chandler, 917 F.2d at 490.
303. Id.
304. Id. at 488-89.
305. Id. at 489.
306. See infra notes 307-511 and accompanying text.
307. 898 F.2d 628 (8th Cir. 1990), overruled by, Forbes v. Arkansas Educ. Television
Comm. Network Found., 22 F.3d 1423 (8th Cir. 1994).
308. DeYoung v. Patten, 898 F.2d 628, 630 (8th Cir. 1990), overruled by, Forbes v.
Arkansas Educ. Television Comm. Network Found., 22 F.3d 1423 (8th Cir. 1994).
504
CREIGHTON LAW REVIEW
[Vol. 31
when IPTV sponsored a debate between the two front-running candidates and chose to exclude him from the program. 30 9 As a whole, DeYoung charged that IPTV "improperly treated major party candidates
differently than minor party and independent candidates." 3 10 DeYoung also accused IPTV of violating federal law, arguing that IPTV
"denied his request for equal air time."3 1 1 DeYoung brought action
against IPTV and several members of its key staff in the United
States District Court for the Northern District of Iowa.312
The district court dismissed DeYoung's complaint for failing to
state a claim upon which relief could be granted. 3 13 The district court
held that DeYoung had no private right of action to sue under federal
law, and further dismissed all other claims.3 14 DeYoung appealed to
the United States Court of Appeals for the Eighth Circuit, alleging
that he did have a private right of action under 47 U.S.C. section
3 15
315(a).
The Eighth Circuit affirmed the district court's decision, noting
that "DeYoung has no [F]irst [A]mendment right to appear on television, at least to any extent greater than the limited right of access
granted by the equal time provision of the Federal Communications
Act." 316 Furthermore, the court ruled that IPTV could not be categorized as a public forum for First Amendment analysis. 3 17 Thus, IPTV
could restrict access to its broadcasts as long as it complied with federal guidelines. 3 15 Finally, the Eighth Circuit held that the FCC's administrative provisions provided for adequate FCC enforcement of any
violations of federal broadcasting laws, and, therefore, DeYoung had
3 19
no private right of action.
309. DeYoung, 898 F.2d at 630.
310. Id.
311. Id. The' federal law in question was 47 U.S.C. § 315(a) (1994). Id.
312. DeYoung, 898 F.2d at 630.
313. Id.
314. Id. DeYoung also sought to sue IPTV and its producers under 42 U.S.C.
§ 1983, claiming that IPTV, as a state entity, had violated his equal protection rights.
Id. The court held that "DeYoung's exclusion from the televised debate or debates could
not be 'fairly attributed' to the state," and "that the state had administratively distanced itself from the editorial and programming decisions made by [IPTV]." Id. at 631
(quoting DeYoung v. Patten, No. C-86-4163, slip op. at 2-3 (N.D. Iowa Dec 13, 1988)).
315. DeYoung, 898 F.2d at 630.
316. Id. at 632. This portion of DeYoung was overruled by the Eighth Circuit in
their later decision in Forbes I. Forbes v. Arkansas Educ. Television Communication
Network Found., 22 F.3d 1423, 1430 (8th Cir. 1994)).
317. DeYoung, 898 F.2d at 633.
318. Id. at 632-33.
319. Id. at 634. The court further noted that "DeYoung is not left without remedy;
he can vindicate his federal statutory right as a political candidate to equal time before
the FCC." Id. at 635.
19981
THE FIRST AMENDMENT
The Eighth Circuit reached a contrary decision in Forbes v. Arkansas Educational Television Commission ("Forbes I/")320 when it
held that public television stations could not exclude viable political
3 21
In
candidates from their limited public forum debate programs.
Forbes H, the plaintiff, Ralph P. Forbes, was a legally qualified independent candidate for the office of Congress in the Third District of
Arkansas. 32 2 When the Arkansas Educational Television Commission
sponsored a debate between the Democratic and Republican candidates for Congress from that district, Forbes asked to be included as
well. 3 23 When the Arkansas Educational Television Network
("AETV") refused to allow Forbes to appear on its program, Forbes
sought an injunction from the324United States District Court for the
Western District of Arkansas.
The district court held that Forbes failed to state a claim upon
which relief could be granted and dismissed the complaint in accord3 25
The district
ance with Federal Rule of Civil Procedure 12(b)(6).
court reached that decision even though the defendant, AETV, had yet
to file an answer. 3 26 Forbes appealed to the United States Court of
Appeals for the Eighth Circuit, which remanded the cause for further
the
proceedings because "there was no way of knowing, on the state of
327
record as it then existed, why AETV had excluded Mr. Forbes."
On remand, the district court "instructed the jury that the con328
The
gressional debate was a non-public forum as a matter of law."
due
debate
the
from
excluded
not
been
jury found that: (1) Forbes had
exclude
not
did
AETV
(2)
and
AETV;
on
to any political pressure
towards Forbes'
Forbes due to any opposition AETV may have 3 had
3 29 Therefore, the court found for AETV. 30
views.
Forbes again appealed the district court's decision to the Eighth
Circuit, arguing that "the debate was a limited public forum, and that
the reason given for excluding him, that he was not a 'viable' candi320.
93 F.3d 497 (8th Cir. 1996).
321. Forbes v. Arkansas Educ. Television Comm'n ("Forbes II"), 93 F.3d 497, 504-05
(8th Cir. 1996).
322. Forbes 11, 93 F.3d at 499. The congressional race in question took place in
1992. Id. at 499.
323. Forbes 11, 93 F.3d at 499.
324. Forbes v. Arkansas Educ. Television Communication Network Found. ("Forbes
I"), 22 F.3d 1423, 1426 (8th Cir. 1994).
325. Forbes 1, 22 F.3d at 1425, 1427.
326. Id. at 1430.
327. Forbes 11, 93 F.3d at 499.
328. Petition for Writ of Certiorari,Forbes v. Arkansas Educ. Television Comm'n, 93
F.3d 497 (8th Cir. 1996), (NO. 95-2722WA), cert. granted, (NO. 96-779), 117 S. Ct. 1243
(1997).
329. Forbes 11, 93 F.3d at 499.
330. Id.
CREIGHTON LAW REVIEW
[Vol. 31
date, even if it was the true reason, was not legally sufficient." 33 1 The
33 2
court agreed with Forbes and reversed the district court's decision.
In reaching this conclusion, the court relied upon Families Achieving
Independence and Respect v. Nebraska Departmentof Social Services
("FAIR").333 Because the FAIR court held that vague standards cannot be used to exclude persons from non-public forums, the Eighth
Circuit determined that AETV could not use the vague standard of
3 34
"viability" to exclude Forbes from its debate.
In FAIR, the United States Court of Appeals for the Eighth Circuit held that the Nebraska Department of Social Services ("DSS") violated the First Amendment when it restricted access to its lobby
using arbitrary standards too vague to define. 33 5 FAIR was an organization set up to provide "educational support for low-income persons." 33 6 FAIR asked the DSS director for permission to distribute
pamphlets in the DSS lobby.3 37 The DSS director refused to allow the
organization to hand out its pamphlets, and FAIR brought suit claiming constitutional violations of its First and Fourteenth Amendment
338
rights.
The United States District Court for the District of Nebraska
found for DSS, holding that the DSS lobby did not constitute a public
forum, and thus FAIR could be prohibited from handing out pamphlets in that location. 3 39 The district court determined that the DSS
director's reasons for keeping FAIR out of the lobby were reasonable.3 40 FAIR appealed to the Untied States Court of Appeals for the
Eighth Circuit. 34 1 The Eighth Circuit reversed, stating that the DSS
director's policy on whom to allow in the lobby and whom to exclude
from the lobby was "impermissibly vague."34 2 The court noted that,
"[ilf a governmental policy restricts protected expressive conduct, it
331. Id. at 499-500.
332. Id. at 500, 505.
333. Id. at 505 (citing Families Achieving Independence & Respect ("FAIR") v. Nebraska Dep't of Soc. Servs., 91 F.3d 1076 (1996), vacated, (Sep. 23, 1996), reh'g en banc,
111 F.3d 1408 (8th Cir. 1997)).
334. Id. at 504-05.
335. Families Achieving Independence & Respect ("FAIR") v. Nebraska Dep't of Soc.
Servs., 91 F.3d 1076, 1081 (1996), vacated, (Sep. 23, 1996), reh'g en banc, 111 F.3d 1408
(8th Cir. 1997).
336. FAIR, 91 F.3d at 1077.
337. Id. at 1078-79.
338. Id. at 1079.
339. Id.
340. Id. The DSS director was concerned with congestion in the lobby caused by
groups handing out material. Id. at 1078. He also wanted to "ensure that his clients
[were] treated with dignity and not forced to encounter individuals promoting a particular political agenda." Id.
341. FAIR, 91 F.3d at 1079.
342. Id. at 1080.
19981
THE FIRST AMENDMENT
will withstand constitutional scrutiny only if it is clear and consistently applied." 343 The DSS director's policy, although well-intended,
created "substantial potential for arbitrary and discriminatory application."3 44 This line of reasoning was also used by the Eighth Circuit
in Forbes /.345
In Forbes II, the Eighth Circuit held that AETV's basis for deciding which candidates had political viability was too subjective. 3 46 The
Eighth Circuit then discussed the district court's failure to address
whether or not the debate was a limited public forum. 34 7 The Eighth
Circuit stated that determining the type of forum had "emerged as the
main issue."348 In reviewing the district court's forum determination,
the Eighth Circuit was not convinced that "the issue of how to characterize the forum was properly decided by the judge" rather than the
jury. 34 9 The court further asserted that it had a constitutional responsibility to review the district court's forum determination because
First Amendment issues involving constitutional facts compel de novo
review. 350 In making this inquiry, the Eighth Circuit relied upon
what it felt was guidance given by the Supreme Court in Bose Corp. v.
35 1
a First Amendment rights
Consumers Union of United States, Inc.,
35 2
slander.
case dealing with libel and
343. Id.
344. Id. at 1081.
345. See infra notes 346-73 and accompanying text.
346. Forbes 11, 93 F.3d at 505.
347. Id. at 502-03.
348. Id. at 502.
349. Id.
350. Id. at 502-03.
351. 466 U.S. 485 (1984).
352. Forbes11, 93 F.3d at 502-03. In Bose, a manufacturer of speaker systems sued
a consumer magazine for rating its speakers in what the manufacturer considered to be
a disparaging manner. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S.
485, 487-88 (1984). The United States District Court for the District of Massachusetts
held that the speaker manufacturer sustained its burden of proof in showing the consumer magazine "published a false statement of material fact with the knowledge that
it was false or with reckless disregard of its truth or falsity." Bose Corp. v. Consumers
Union of United States, Inc., 508 F. Supp. 1249, 1277 (D. Mass. 1981), rev'd, 692 F.2d
189 (1st Cir. 1982), affd, 466 U.S. 485 (1984). The consumer magazine appealed to the
United States Court of Appeals for the First Circuit. Bose Corp. v. Consumers Union of
United States, Inc., 692 F.2d 189, 191 (1st Cir. 1982), affd, 466 U.S. 485 (1984). The
First Circuit reversed the district court's decision, finding no actual malice on the part
of the consumer magazine. Bose, 692 F.2d at 191, 197. The First Circuit justified its
ability to review the malice determination, stating it was not "limited to the clearly
erroneous standard of... Fed. R. Civ. P. 52(a); instead, [it] must perform a de novo
review, independently examining the record to ensure that the district court has applied
properly the governing constitutional law and that the plaintiff has indeed satisfied its
burden of proof." Id. at 195.
Rule 52(a) provided, in part, that "[flindings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to judge of
the credibility of the witnesses." Bose, 466 U.S at 498. Hence, the question arose as to
CREIGHTON LAW REVIEW
[Vol. 31
The district court in ForbesIf interpreted the Bose decision as allowing the judge to determine what kind of forum was present in
AETV's debate, as certain First Amendment issues were considered
questions of law and not fact. 3 53 However, the Eighth Circuit in
Forbes 11 was not sure that that was an accurate reading of Bose.3 54
The Eighth Circuit believed that a determination of forum was "a
mixed question of law and fact," and further noted it was "of no practical significance" whether such a decision was made by the trial judge,
the jury, or the appellate court. 3 55 Ultimately, the decision made by
the Eighth Circuit in Forbes II was that it had the right to review the
district court's determination of the type of forum at issue. 35 6
The Eighth Circuit in Forbes 11 then decided that it must first
address whether or not the forum at issue was the television station or
the debate itself.3 57 In order to define the forum, the court examined
exactly what access was being sought by Forbes. 3 58 The court concluded that "Forbes sought access to the debate alone," and was not
interested in general access to AETV broadcasts. 3 59 Thus, "the debate
- the means of communication to which Forbes [sought] access," was
3 60
the relevant forum to be examined.
The Eighth Circuit then turned to the question of whether that
forum was a "limited public forum" or a "non-public forum." 36 1 The
court examined case law handed down from the United States
Supreme Court and concluded that "[t]here is no bright line or objecwhether it was proper for the First Circuit to review the district court's findings of fact,
as those findings did not appear to be "clearly erroneous" in accordance with the requirements of Rule 52(a). Id. at 493.
On appeal, the United States Supreme Court granted certiorari to determine whether
the First Circuit was wrong in refusing to "apply the clearly-erroneous standard of Rule
52(a) to the District Court's 'finding' of actual malice." Id. The Court then noted that
there were two guidelines in conflict: (1) the fact that Rule 52(a) had previously been
upheld by the Court to the standard of its plain meaning, and (2) the Court also required appellate courts to "make an independent examination of the whole record" when
dealing with First Amendment issues. Id. at 498-99 (citing Inwood Lab., Inc. v. Ives
Lab., Inc., 456 U.S. 844, 855-56, (1982); New York Times Co. v. Sullivan, 376 U.S. 254,
284-86 (1964)).
The Court concluded that allowing appellate review is the stronger of the two guidelines
because "the rule of independent review assigns to judges a constitutional responsibility
that cannot be delegated to the trier of fact." Id. at 501. The Court further held that
"Rule 52(a) applied to findings of fact" and "[did] not inhibit an appellate court's power
to correct errors of law." Id.
353. Forbes 11, 93 F.3d at 502.
354. Id.; See supra note 352 and accompanying text.
355. Forbes II, 93 F.3d at 502.
356. Id. at 503.
357. Id.
358. Id. (citing Cornelius, 473 U.S. at 801).
359. Id.
360. Id.
361. Id.
19981
THE FIRST AMENDMENT
tive test for determining the character of the forum." 362 Thus stated,
the court went on to "say without reservation ... that the forum in
36 3
this case ... is a limited public forum."
Because the television debate at issue in Forbes II was organized
to allow legally qualified candidates to voice their campaign messages,
the Eighth Circuit determined that the exclusion of any qualified candidate could be construed as a prior restraint. 364 The court then addressed whether AETV could give a legally sufficient reason for
excluding Forbes from the debate. 3 65 The court found AETV excluded
Forbes because it decided he was not a viable political candidate for
the office. 3 66 The Eighth Circuit, focusing on Arkansas law, found
that Forbes was a viable candidate because he had collected the statutorily defined number of signatures necessary to appear on the ballet.36 7 The court stated, "[s]o far as the law was concerned, he had
equal status with the Republican nominee and the Democratic
nominee."368
Having determined that Forbes was a legally qualified, viable
candidate, the Eighth Circuit concluded that AETV journalists, as
government employees, had no business excluding Forbes from their
program. 36 9 The court conceded that "the decision as to political viability is exactly the kind of journalistic judgment routinely made by
newspeople." 370 However, the court felt that AETV's journalists were
not ordinary newspeople due to the fact that they were government
employees. 3 7 1 The court held that to allow governmental journalists
to make such subjective determinations regarding political viability
would be inconsistent with the Constitution because "[tihe First
Amendment exists to protect individuals, not government." 3 72 Therefore, AETV's reason for excluding Forbes from the debate was held to
3 73
be legally insufficient, and judgment was granted to Forbes.
362. Id. at 503-04 (citing Cornelius, 473 U.S. at 802; Perry, 460 U.S. at 46).
363. Id. at 504.
364. Id.
365. Id.
366. Id.
367. Id. Specifically, the court found that "[fln a sense, the State of Arkansas had
already, by statute, defined political viability. Mr. Forbes had gathered enough signatures to appear on the ballot. So far as the law was concerned, he had equal status with
the Republican nominee and the Democratic nominee." Id.
368. Forbes 11, 93 F.3d at 504.
369. Id. at 505.
370. Id.
371. Id. The court continued, stating that "[p]olitical viability is a tricky concept.
We should leave it to the voters at the polls, and to the professional judgment of nongovernmental journalists. A journalist employed by the government is still a government
employee." Id.
372. Forbes 11, 93 F.3d at 505.
373. Id.
CREIGHTON LAW REVIEW
[Vol. 31
After the decision in Forbes I was handed down from the Eighth
Circuit, Nebraska Education Television ("NETV") faced a similar situation. 3 74 Prior to the decision in Forbes 11, NETV made plans to sponsor a debate between the Democratic and Republican nominees for
U.S. Senate. 3 75 Upon hearing about the scheduled debate, two thirdparty candidates asked NETV.to include them in the program. 37 6
NETV told the candidates "that they could not participate unless they
could demonstrate widespread support, such as 10 percent standing in
a public opinion poll."3 77
When the Forbes I decision was announced just days before
NETV's scheduled debate, NETV decided to cancel its debate rather
than risk litigation with the third-party candidates. 3 78 Upon reading
the Forbes II decision, NETV felt that "public television stations could
not exclude minor-party candidates from debates they sponsor." 379
NETV's decision to cancel the debate was praised by other media
outlets because "reality would be distorted if the network allowed itself to be forced by the courts to imply that minor-party candidates
were no different from the nominees of the Republican and Democratic
Parties."38 0 It was also noted that the Republican nominee received
112,953 votes in the primary election, the Democratic nominee received 93,140 votes in the primary election, and one of the third-party
candidates had received only 11 write-in Libertarian votes. 38 1 Due to
the vast differences in the candidates' voter support as evidenced in
the primary election numbers, at least one commentator noted that
allowing "an 11-vote write-in nominee [to enter the debate] would
have made a mockery of a serious political event."38 2
NETV officials also felt threatened by the Eighth Circuit in Forbes
I when the court ruled that the subjective opinions of government
employed journalists were somehow tainted compared to journalists
not employed by the government. 38 3 Although the court in Forbes II
374. C. David Kotok, Nelson-Hagel Debate Canceled, But They Will Visit State Fair,
OMAHA WORLD-HERALD, August 24, 1996, at 17.
375. Id.
376. Id. The candidates were John DeCamp, the Libertarian Party candidate for
U.S. Senate, and Bill Dunn, the Natural Law Party candidate for U.S. Senate. Id.
377. Id. The quote is attributed to Bill Ganzel, NETV's senior producer for public
affairs. Id.
378. Id.
379. Id.
380. Editorial, Minor-PartyFarce Denied Voters A Debate, OMAHA WORLD-HERALD,
August 27, 1996, at 10.
381. Id.
382. Id.
383. Telephone Interview with Bill Ganzel, Senior Producer for Public Affairs, Nebraska Education Television (July 22 & Sept. 15, 1997) (regarding Forbes 11, 93 F.3d at
505).
19981
THE FIRST AMENDMENT
decided that the judgment of the journalists at AETV "was made in
good faith," the court found that the employment of those journalists
by the government was a "crucial fact" to be taken into consideration
in its ruling. 38 4 Contrary to such statements, public television broadcasters believe that they are journalists first and foremost, dutybound to uphold the standards expected of their profession in accord38 5
It is
ance with the editorial integrity project and localized rules.
by
compromised
be
not
would
standards
such
that
further asserted
air
to
politicians
non-incumbent
of
ability
the
intentionally limiting
their political views in order to conform with some kind of government
38 6
Thus,
conspiracy by incumbents to limit information to the public.
viewtheir
to
service
public
a
provide
public broadcasters believe they
fact
the
standards;
journalistic
ers in accordance with widely adopted
no
of
is
government
the
to be employed by
that they happen
38 7
consequence.
ANALYSIS
38 8
the United States Court of
In Marcus v. Iowa Public Television,
public television station
a
that
held
Circuit
Eighth
Appeals for the
allowed to debate on a
candidates
political
of
number
could limit the
38 9
Circuit accepted the
Eighth
The
station.
the
by
sponsored
program
was a limited
debate
political
the
that
district court's determination
390
Eighth Cirthe
by
reached
was
conclusion
similar
A
public forum.
Television
Educational
cuit months earlier in Forbes v. Arkansas
39 1
however,
decision,
II
Unlike the Forbes
Commission ("Forbes I').
had met
station
television
the
the Marcus court also determined that
showing
by
candidates
certain
of
its burden of justifying an exclusion 3 92
interest.
public
the
in
were
its actions
Although the Eighth Circuit's decision in Marcus is correct, it can
be criticized for two reasons. 39 3 First, the court incorrectly deemed
public television-sponsored debates as limited public forums because
the characteristics of the debate at issue in Marcus fit guidelines
384. Forbes 1I, 93 F.3d at 505.
385. Telephone Interview with Bill Ganzel, Senior Producer for Public Affairs, Nebraska Education Television (July 22 & Sept. 15, 1997) (regarding Forbes H, 93 F.3d at
505).
386. Id.
387. Id.
388. 97 F.3d 1137 (8th Cir. 1996).
389. Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1144 (8th Cir. 1996).
390. Marcus, 97 F.3d at 1141.
391. Forbes v. Arkansas Educ. Television Comm'n ("Forbes II"), 93 F.3d 497, 504
(8th Cir. 1996).
392. Marcus, 97 F.3d at 1144; Forbes 11, 93 F.3d at 504.
393. See infra notes 394-95 and accompanying text.
CREIGHTON LAW REVIEW
[Vol. 31
promulgated by the Supreme Court that reflect a non-public forum. 39 4
Second, the court should have relied upon 47 U.S.C. section 315 in
making its decision regarding equal time requirements for candidates
in a public television-sponsored political debate. 3 95
Despite these criticisms, the Eighth Circuit's decision in Marcus
was ultimately correct for two reasons. 396 First, the court was correct
in determining it had jurisdiction to decide such a case in spite of the
confusion associated with determining jurisdiction as indicated by
other courts. 39 7 Second, the court correctly refused injunctive relief
for a candidate excluded from televised debates pending trial because
such a candidate was not likely to ultimately succeed on the merits of
39 8
his or her case.
THE EIGHTH CIRCUIT INCORRECTLY DEEMED PUBLIC TELEVISIONSPONSORED DEBATES AS LIMITED PUBLIC FORUMS RATHER
THAN NON-PUBLIC FORUMS
In Marcus, the Eighth Circuit's characterization of a public television-sponsored political debate as a limited public forum was inconsistent with guidelines promulgated by the United States Supreme
Court. 39 9 In Perry Education Association v. Perry Local Educators'
Association,40 0 the Supreme Court said that when a government organization allows some use of government facilities by certain groups,
such "selective access does not transform government property into a
public forum." 40 1 In other words, a non-public forum can continue to
exist even though the State allows some groups to use their facilities. 40 2 In Marcus, Iowa Public Television ("IPTV") opened up their
Iowa Press program to "newsworthy" candidates for the purpose of
meeting the station's public service goals by presenting the public
with a political debate. 40 3 Thus, IPTV limited speakers who had access to the broadcast and, in accordance with the Perry decision, such
limited access should not have automatically transformed IPTV's
40 4
Iowa Press into a public forum.
The Eighth Circuit could have easily applied the forum parameters outlined by the Supreme Court in Perry to determine into which
394.
395.
396.
397.
398.
399.
400.
401.
402.
403.
404.
See infra notes 399-441 and accompanying text.
See infra notes 442-48 and accompanying text.
See infra notes 397-98 and accompanying text.
See infra notes 500-11 and accompanying text.
See infra notes 512-25 and accompanying text.
See infra notes 400-34 and accompanying text.
460 U.S. 37 (1983).
Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 47 (1983).
Perry, 460 U.S. at 47.
Marcus, 97 F.3d at 1144.
Id.; Perry, 460 U.S. at 47.
THE FIRST AMENDMENT
19981
40 5
Traditional public forums
category the Marcus situation would fit.
are gathering places open to the public for assembly and an exchange
40 7
of ideas. 40 6 Streets and parks are representative of such forums.
Public television stations are not representative of such forums because "no private individual or group has a right to command the use
of broadcast facilities." 40 8 Thus, the Iowa Press debate at issue40 in
9
Marcus could not be representative of a traditional public forum.
Limited (or designated) public forums are defined as "public property which the state has opened for use by the public as a place for
expressive activity."410 Examples of such forums would include uni41 1
IPTV opened their
versity meeting rooms and municipal theaters.
candidates political
newsworthy
Iowa Press debate for access to only
4 12
planned to
IPTV
Furthermore,
not for use by the general public.
the deduring
limit those who could ask questions of the candidates
4 13
audithe
Hence,
bate to only the host and some political reporters.
ence was not invited to participate in the "expressive activity" (as
issue in Marcus could
described by Perry), and therefore the debate at 41
4
not be representative of a limited public forum.
Non-public forums are defined as places where people do not normally have a right to gather and communicate because such places are
not traditionally used for free speech nor designated for such activity.41 5 ' Examples of such forums would include military bases and
prison grounds. 416 Just because property "is owned or controlled by
the government" does not mean that everyone has access to that property.4 1 7 Just as a private property owner can restrict the use of such
property, so too can the State.418 In Marcus, IPTV restricted the use
of its Iowa Press program to only those newsworthy political candi4 19
Such restriction, in acdates to whom IPTV would allow access.
candidates," and
"newsworthy
but
all
excluded
Perry,
with
cordance
405.
406.
See infra notes 406-20 and accompanying text.
Perry, 460 U.S. at 45; see supra notes 220-23 and accompanying text.
407. Id.
408.
(1973).
409.
410.
411.
412.
413.
414.
415.
Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 113
416.
DOM CARISTI, EXPANDING FREE EXPRESSION IN THE MARKETPLACE: BROADCAST-
See supra 405-08 and accompanying text.
Perry, 460 U.S. at 45; see supra notes 224-26 and accompanying text.
Id. at 45.
Marcus, 97 F.3d at 1141.
Id. at 1139.
Id.; Perry, 460 U.S. at 45.
Perry, 460 U.S. at 46.
FORUM 66 (1992).
417. Perry, 460 U.S. at 46 (citing United States Postal Serv. v. Greenburgh Civic
Ass'n, 453 U.S. 114, 129 (1981)).
418. Perry, 460 U.S. at 46 (citing Greenburgh Civic Ass'n, 453 U.S. at 129-30).
419. Marcus, 97 F.3d at 1141.
ING IN THE PUBLIC
CREIGHTON LAW REVIEW
[Vol. 31
consequently IPTV should have retained its status as a non-public
20
forum.
4
When Marcus' case was tried in the United States District Court
for the Southern District of Iowa, the district court found that the
Iowa Press programs featuring candidates for elective office constituted limited public forums because the programs were political debates hosted by a government broadcaster. 42 1 The district court
determined that opening up a studio in such a fashion served as governmental intent to create such a forum. 42 2 The United States Court
of Appeals for the Eighth Circuit agreed, without any discussion that
423
the forum could be otherwise.
In Forbes 11, however, decided just two months before Marcus, the
Eighth Circuit did discuss the attributes of a non-public forum, noting
that it is normally government property not traditionally used or designated for public communication. 4 24 In Forbes II, the Eighth Circuit
even cited the Supreme Court as ruling that a non-public "forum is not
necessarily transformed into a... limited public forum even though
the State engages in a practice of'selective access,' by 'allow [ing] some
organizations .
.
. to use the facilities.'
42 5
Without further distin-
guishing between a limited public forum and a non-public forum, the
Eighth Circuit then held "without reservation" that the AETV debate
at issue in ForbesII was a limited public forum. 4 26 The Eighth Circuit
was not specific in saying why such debates did not constitute nonpublic forums, stating instead that "[t]here is no bright line or objective test for determining the character of the forum." 4 27 Thus, in both
Forbes I and Marcus, the Eighth Circuit found that a public television station broadcasting a political debate was a "limited public forum;" however, in neither case did the court indicate why such a
broadcast would not represent a non-public forum. 428
Additionally, in Cornelius v. NAACP Legal Defense and Educational Fund, Inc.,429 the Supreme Court held that "a speaker may be
420.
421.
Oct. 9,
422.
See supra notes 415-19 and accompanying text.
Marcus v. Iowa Pub. Television, 24 Media L. Rep. (BNA) 2531, 2533 (S.D. Iowa
1996).
Marcus, 24 Media L. Rep. (BNA) at 2533 (citing Cornelius v. NAACP Legal
Defense & Educ. Fund, Inc., 473 U.S. 788, 804-06 (1985)).
423.
Marcus, 97 F.3d at 1141. The Eighth Circuit resolved the forum issue in Mar-
cus by "[aiccepting for the purposes of this motion that the joint appearances are debates and that IPTV has opened Iowa Press as a limited public forum to qualified
congressional candidates...." Id.
424. Forbes 11, 93 F.3d at 503 (quoting Perry, 460 U.S. at 46).
425. Id. at 503 (quoting Perry, 460 U.S. at 47).
426. Id. at 504.
427. Id.
428. See supra notes 421-27 and accompanying text.
429. 473 U.S. 788 (1985).
19981
THE FIRST AMENDMENT
excluded from a non-public forum if he wishes to address a topic not
encompassed within the purpose of the forum, . . . or if he is not a
member of the class of speakers for whose especial benefit the forum
was created."4 30 In Marcus, political candidates were excluded from
431
the Iowa Press debate if they were deemed to be non-newsworthy.
The Eighth Circuit found that IPTV properly determined that Marcus
was non-newsworthy. 4 32 Therefore, in accordance with Cornelius,
IPTV could rightfully exclude Marcus from the Iowa Press debate and
still retain the debate as a non-public forum.4 33 Consequently, the
that IPTV's Iowa Press proEighth Circuit should have determined
4 34
gram represented a non-public forum.
Because the debates could constitute a non-public forum, one can
speculate as to whether or not that determination would change the
Eighth Circuit's ruling in Marcus.43 5 Comments from the dissent in a
1994 case suggests that the determination in Marcus would not
change. 43 6 In Forbes v. Arkansas EducationalTelevision Communication Network Foundation("ForbesI'), 4 3 7 the Eighth Circuit remanded
the case to the district court and reasoned that the forum could be
determined to be a limited public forum or a non-public forum. 438 The
dissent disagreed, showing by a process of elimination that the debate
was compatible with only a non-public forum. 43 9 As for how such a
determination would affect the outcome of the Marcus case, the dissent in Forbes I is notable for their hypothesis of how a non-public
forum debate can be limited to only two candidates if the exclusion of
other candidates is done within the confines of narrowly defined First
Amendment restrictions. 4 40 Therefore, regardless of whether the
Eighth Circuit defined the debate as a limited public forum or a non430. Cornelius, 473 U.S. at 806 (emphasis added) (citing Lehman v. City of Shaker
Heights, 418 U.S. 298 (1974); Perry, 460 U.S. 37 (1983)).
431. Marcus, 97 F.3d at 1141.
432. Id. at 1144.
433. See supra notes 429-32 and accompanying text.
434. See supra notes 421-33 and accompanying text.
435. See infra notes 436-41 and accompanying text.
436. See infra notes 437-41 and accompanying text.
437. 22 F.3d 1423 (8th Cir. 1994).
438. Forbes v. Arkansas Educ. Television Communication Network Found. ("Forbes
I), 22 F.3d 1423, 1429 (8th Cir. 1994). The outcome of this case was determined in
Forbes II, where the district court found the forum to be non-public and the Eighth
Circuit reversed, ruling that it was a limited public forum. Forbes 11, 93 F.3d at 499500.
439. Forbes 1, 22 F.3d at 1431-32. The dissent went on to outline how a non-public
forum debate can be limited to only two candidates if the exclusion of other candidates
is done within the confines of narrowly defined First Amendment restrictions. Id. at
1432 (McMillian, J., dissenting). The Marcus court concluded similarly, except the Marcus court had defined the forum differently. Marcus, 97 F.3d at 1139, 1141, 1144.
440. Forbes I, 22 F.3d at 1432 (McMillian, J., dissenting).
CREIGHTON LAW REVIEW
[Vol. 31
public forum, the dissent in Forbes I suggests that the outcome of
Marcus should have been the same.4 4 1
THE EIGHTH CIRCUIT DISREGARDED MANDATORY FEDERAL LAW WHEN
IT IGNORED 47 U.S.C. SECTION 315 IN MAKING ITS DECISION
IN MARCUS
The Eighth Circuit disregarded mandatory federal law when deciding if Marcus was denied equal time to express his political
views. 44 2 Congress has mandated, and the FCC has upheld, that
broadcasters shall be licensed, in part, based on "whether the public
interest.., will be served by the granting of such" a license. 4 43 Echoing this sentiment, the United States Supreme Court has stated "[ilt
is the right of the viewers and listeners, not the right of the broadcasters, which is paramount" when examining who shall be allowed to
broadcast. 4 44 Having thus determined that broadcasters are licensed
as servants of the public, the Supreme Court further held that broadcasters should be given wide discretion in determining what to broadcast in the public's best interest. 44 5 Such discretion was bluntly
summed up by Justice Douglas when he said the "[g]overnment shall
446
keep its hands off the press."
However, allowing broadcasters the discretion to determine what
is in the "public interest" is not without controversy. 44 7 It is "difficult,
if not impossible" to define such a policy goal with precision. 4 48 Even
the Supreme Court has commented that broadcast legislation "is not
notable for the precision of its substantive standards."44 9 Despite
this, broadcasters are expected to be non-partisan. 450 Nevertheless,
"there is considerable controversy over the extent to which the news
media actually live up to this ideal."4 5 1
To prevent such bias, Congress mandated in 47 U.S.C. section 315
that "[i]f any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he
shall afford equal opportunities to all other such candidates for that
441.
442.
443.
444.
445.
446.
See supra notes 435-40 and accompanying text.
See infra notes 443-99 and accompanying text.
47 U.S.C.A. § 309(a) (West 1991 & Supp. 1997).
Red Lion Broad. Co., Inc., v. FCC, 395 U.S. 367, 390 (1969).
CBS, Inc. v. FCC, 453 U.S. 367, 390 (1981).
CBS v. DNC, 412 U.S. at 160-61.
447. STEPHEN ANSOLABEHERE, Roy BEHR & SHANTO IYENGAR, THE MEDIA GAME:
AMERICAN POLITICS IN THE TELEVISION AGE 56-57 (1993).
448. PHILLIP KEIRSTEAD, MODERN PUBLIC AFFAIRS PROGRAMMING 154 (1979) (referring to language in the Communications Act of 1934).
449.
450.
451.
Red Lion, 395 U.S. at 385.
ANSOLABEHERE, supra note 447, at 56.
Id. at 57.
1998]
THE FIRST AMENDMENT
office in the use of such broadcasting station."4 52 This equal time protection guarantees that all candidates will have an opportunity to be
heard via the airwaves if any other candidate is allowed such an
45 3
opportunity.
In Marcus, IPTV gave access to the airwaves to Democratic and
Republican political nominees on its Iowa Press program. 4 54 In accordance with 47 U.S.C. section 315, allowing some candidates for a
particular office to appear on IPTV triggered a requirement for IPTV
to give Marcus an opportunity to air his views as well. 4 5 5 IPTV ful-
filled this requirement by offering to allow Marcus "to present [his]
views on other programs presented by the network." 4 56 Such programming would allow IPTV to fulfill its public trust responsibility in
presenting all views to its audience, and at the same time allow IPTV
to specifically tailor the debate to only the front-running candidates. 45 7 Consequently, IPTV satisfied 47 U.S.C. section 315 as mandated by Congress, and the Eighth Circuit should have recognized this
4 58
by basing its decision in Marcus upon those grounds.
Conversely, the Eighth Circuit ignored 47 U.S.C. section 315 in
its holding and determined the propriety of injunctive relief on other
grounds instead. 4 59 In Marcus, the Eighth Circuit focused much of its
analysis on whether or not Marcus would suffer an irreparable harm if
excluded from the IPTV debate. 460 Additionally, the court weighed
the balance of harms in denying Marcus' right to speak against IPTV's
right to exercise their editorial prerogatives.4 6 1 Finally, in evaluating
the likelihood of Marcus' success on the merits, the court detailed how
speaker access can be limited if "'narrowly drawn to achieve a compelling state interest.' 4 62 Thus, the Eighth Circuit grounded all of its
452. 47 U.S.C. § 315 (1994).
453. ANDREW 0. SHAPIRO, MEDIA ACCESS: YOUR RIGHTS TO EXPRESS YOUR VIEWS ON
RADIO AND TELEVISION 51 (1976). If a broadcaster provides coverage of political candidates as part of the news, the equal time provision is not triggered. Id. However,
merely covering a political event, like a debate, is much different than when the broadcaster is actively sponsoring such an event. 47 U.S.C. § 315(a). Sponsorship goes beyond mere coverage and triggers the requirement for equal time to candidates not
allowed to participate in the media-sponsored debate. DeYoung v. Patten, 898 F.2d 628,
633 (8th Cir. 1990).
454. Marcus, 97 F.3d at 1138.
455. See supra notes 176-82 and accompanying text.
456. Marcus, 97 F.3d at 1139.
457. Id. at 1144.
458. See supra notes 454-57 and the accompanying text.
459. See generally Marcus, 97 F.3d at 1140-44. Section 315 is not mentioned anywhere in Marcus. Id.
460. Id. at 1140-41.
461. Id. at 1141.
462. Id. at 1141 (quoting International Soc'y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 678 (1992)).
CREIGHTON LAW REVIEW
[Vol. 31
analysis with respect to Marcus' likelihood of success in First Amendment issues and completely ignored 47 U.S.C. section 315: the one law
that is clearly on point and easily applied in the Marcus case. 4 63 If the
Eighth Circuit had relied upon 47 U.S.C. section 315 in making its
ruling, there would have been no need for the First Amendment analy4 4
sis because 47 U.S.C. section 315 does not require it. 6
In fact, the Eighth Circuit narrowly focused its First Amendment
analysis by justifying IPTV's exclusion of Marcus from the debate due
to Marcus' lack of "newsworthiness." 46 5 The court went to great
lengths to establish that IPTV had the right to make subjective decisions in regard to the newsworthiness of candidates who could appear
on its broadcasts. 4 66 Such a ruling is problematic because just two
months earlier, in Forbes II, the Eighth Circuit held that subjective
decisions by a broadcaster regarding the "viability" of a candidate was
not legally sufficient. 46 7 Hence, the Eighth Circuit has concluded that
government employed broadcasters serve no compelling state interest
in judging the "viability" of candidates, but government employed
broadcasters do serve a compelling state interest in judging the "newsworthiness" of candidates. 468 Such logic "seeks to distinguish the indistinguishable." 4 69 The confusion could have been easily averted if
the Eighth Circuit had ruled in accordance with 47 U.S.C. section
315.470
If the Eighth Circuit had ruled in accordance with 47 U.S.C. section 315 in Forbes II, recent events surrounding the cancellation of a
Nebraska debate could have been avoided. 47 1 Prior to the Eighth Circuit's decision in Forbes 11, Nebraska Education Television ("NETV")
planned to sponsor a debate between the Democratic and Republican
nominees for U.S. Senate. 4 72 Upon hearing about the scheduled debate, two third-party candidates asked NETV to include them in the
program. 47 3 NETV told the candidates "that they could not participate unless they could demonstrate widespread support, such as 10
463.
464.
See supra notes 442-58 and accompanying text.
See generally 47 U.S.C. § 315 (1994); see supra notes 176-82 and accompanying
text.
465.
466.
467.
468.
469.
470.
471.
472.
Marcus, 97 F.3d at 1142-44.
Id. at 1143.
Forbes 11, 93 F.3d at 504-05.
Id.; Marcus, 97 F.3d at 1144.
Marcus, 97 F.3d at 1144 (Beam, J., dissenting).
See supra notes 459-69 and accompanying text.
See infra notes 472-77 and accompanying text.
C. David Kotok, Nelson-Hagel Debate Canceled,But They Will Visit State Fair,
OMAHA WORLD-HERALD, Aug. 24, 1996, at 17.
473. Id. The candidates were John DeCamp, the Libertarian Party candidate for
U.S. Senate, and Bill Dunn, the Natural Law Party candidate for U.S. Senate. Id.
19981
THE FIRST AMENDMENT
percent standing in a public opinion poll." 474 When the ForbesII decision was announced just days before NETV's scheduled debate, NETV
decided to cancel its debate rather than risk litigation with the thirdparty candidates.4 75 Upon reading the Forbes II decision, NETV recognized that "public television stations could not exclude minor-party
candidates from debates they sponsor."4 76 However, if the Forbes II
court had ruled in accordance with 47 U.S.C. section 315, NETV would
have realized that it could still sponsor a debate featuring only the
Democratic and Republican candidates as long as NETV also provided
4 77
other air time for the two third-party candidates.
The Eighth Circuit has utilized 47 U.S.C. section 315 on other occasions. 4 78 For example, in DeYoung v. Patten,4 7 9 the Eighth Circuit
considered the provisions of section 315 when determining whether or
not third-party candidate DeYoung deserved an opportunity to participate in an IPTV sponsored debate. 48 0 However, the court concluded
that such questions were matters for the FCC to decide and held that
DeYoung had no private right of action. 48 1 Thus, the case was dismissed without ever determining the applicability of the equal time
48 2
provision.
When looking closely at the three Eighth Circuit decisions dealing
with third-party candidates trying to gain access to public television
airwaves, it becomes evident that 47 U.S.C. section 315's equal time
48 3
provision would simplify the court's decision process in such cases.
In accordance with section 315, only two things must be determined. 48 4 First, did a broadcaster "permit any person who is a legally
qualified candidate for any public office to use a broadcasting station?" 48 5 Second, did the broadcaster then "afford equal opportunities
to all other such candidates for that office in the use of such broadcasting station?"48 6 If the broadcaster permits a legally qualified candi474. Id. The quote is attributed to Bill Ganzel, NETV's senior producer for public
affairs. Id.
475. Id.
476. Id.
477. See supra notes 176-82 and accompanying text.
478. DeYoung v. Patten, 898 F.2d 628, 633 (8th Cir. 1990).
479. 898 F.2d 628 (8th Cir. 1990).
480. DeYoung, 898 F.2d at 633.
481. Id. at 633-34.
482. Id. at 633-35.
483. See infra notes 484-92 and accompanying text.
484. 47 U.S.C. § 315 (1994). There are four exceptions, however, whereby a political
candidate could appear on a broadcast without triggering the equal time provision: (1)
bona fide newscasts; (2) bona fide news interviews (3) bona fide news documentaries; or
(4) on-the-spot news coverage of bona fide news events. 47 U.S.C. § 315(a). See supra
notes 176-82 and accompanying text.
485. 47 U.S.C. § 315.
486. Id.
CREIGHTON LAW REVIEW
[Vol. 31
date to use a broadcasting station and offers similar opportunities to
other candidates to use the station, then candidates have no legal recourse under section 315. 4 87 However, if the broadcaster permits any
legally qualified candidate to use a broadcasting station but does not
afford similar opportunities to other candidates to use the station,
then the broadcaster has failed to meet the requirement of section 315
and could have its license revoked in accordance with 47 U.S.C. section 312.488 Finally, if the broadcaster does not permit any candidate
the opportunity to use their station, the provisions of section 315 are
4 89
never triggered.
Applying section 315, and looking at the Eighth Circuit's cases in
chronological order, they could be summed as follows: In DeYoung,
ForbesI and Forbes 11, a broadcaster permitted legally qualified candidates to use its station but did not afford similar opportunities to other
candidates, and therefore the stations violated section 315.490 In
Marcus, the broadcaster afforded similar opportunities to all candidates to access its airwaves; consequently the station had not violated
section 315. 49 1 By applying section 315 in this manner, the Eighth
Circuit's decisions would have been simpler, and would have obviated
492
the need to "distinguish the indistinguishable."
For guidance in this arena, the Eighth Circuit could look to the
Eleventh Circuit and its comments in Chandlerv. GeorgiaPublic Telecommunications Commission.49 3 In that case, a public television station refused to allow third-party candidate Chandler onto the debate it
4 94
sponsored but did offer him air time separate from the debate.
Chandler sought relief based on alleged constitutional violations of his
First and Fourteenth Amendment rights - but not in accordance with
the equal time provisions of section 315. 49 5 Despite that, the Eleventh
Circuit embraced the statutory law and concluded that "public television stations must.., abide by the dictates of 47 U.S.C. section 315
regarding fairness and balance or lose their licenses." 49 6 The Elev487. ANDREW 0. SHAPIRO, MEDIA AcCESS: YOUR RIGHTS TO EXPRESS YOUR VIEWS ON
RADIO AND TELEVISION 51 (1976).
488. Id. See also 47 U.S.C. §§ 312(a)(7), 315 (1994).
489. SHAPIRO, supra note 486, at 51.
490. DeYoung, 898 F.2d at 630; Forbes 1, 22 F.3d at 1426; Forbes11, 93 F.3d at 499.
491. Marcus, 97 F.3d at 1139. Specifically, the Eighth Circuit noted that "IPTV did
offer to allow Movants and other candidates to present their views on other programs
presented by the network." Id.
492. Marcus, 97 F.3d at 1144 (Beam, J., dissenting).
493. 917 F.2d 486 (11th Cir. 1990).
494. Chandler v. Georgia Pub. Telecomm. Comm'n, 749 F. Supp. 264, 265 (N.D. Ga.
1990), vacated, 917 F.2d 486 (11th Cir. 1990).
495. Chandler, 749 F. Supp. at 266.
496. Chandler v. Georgia Pub. Telecomm. Comm'n, 917 F.2d 486, 489 (lth Cir.
1990).
1998]
THE FIRST AMENDMENT
enth Circuit emphasized that public television stations should not be
"harnesse[d]" as to which candidates they choose to present on a debate. 4 97 Because stations must abide by section 315 under threat of
losing their licenses, the Eleventh Circuit predicted that allowing
broadcasters to determine which candidates gain access to the debate
would not result in "Orwellian state thought control." 498 Similarly,
considering that section 315 is mandated by Congress and utilized in
other circuit courts, the Eighth Circuit should not have ignored the
law by refusing to abide by the dictates of 47 U.S.C. section 315 re49 9
garding equal time for candidates on the networks.
THE EIGHTH CIRCUIT WAS RIGHT IN DETERMINING IT HAD
JURISDICTION TO DECIDE MARCUS IN SPITE OF CONFUSION
ASSOCIATED WITH DETERMINING JURISDICTION
There is some underlying confusion in the courts regarding who
has jurisdiction to hear the case of a candidate seeking injunctive relief to be included in a public television-sponsored debate. 50 0 In DeYoung, the Eighth Circuit received a complaint filed by a third-party
candidate who was refused access on a public television-sponsored debate. 50 1 In DeYoung, the Eighth Circuit focused on whether or not the
candidate had a private right of action to enforce 47 U.S.C. section
315's equal time provision. 50 2 The court determined that the FCC
50 3
was the proper venue for a remedy and dismissed the complaint.
Just four years later, the Eighth Circuit heard Forbes I, a case involving issues very similar to DeYoung. 50 4 However, the dissent in Forbes
I continued to assert that the court should not hear such a case because "the FCC has exclusive jurisdiction of this litigation."50 5 The
Eighth Circuit faced similar issues again in Marcus, just two years
after Forbes I, and this time the court accepted the case without any
discussion as to whether or not the FCC might be the proper agency to
adjudicate the claim. 50 6 Thus, the Eighth Circuit has come full circle
on whether or not they can hear claims from aggrieved political candi497. Chandler,917 F.2d at 489-90.
498. Id. at 489.
499. See supra notes 442-98 and accompanying text.
500. See infra notes 501-07 and accompanying text.
501. DeYoung, 898 F.2d at 630.
502. Id. at 633-34.
503. Id. at 635.
504. Forbes I, 22 F.3d at 1425-26.
505. Id. at 1430 (McMillian, J., dissenting).
506. See generally Marcus, 97 F.3d at 1137 (in deciding the DeYoung and Forbes I
cases, the Eighth Circuit addressed whether the FCC might be the proper venue for a
remedy, whereas in Marcus the court never addressed it).
[Vol. 31
CREIGHTON LAW REVIEW
dates seeking injunctive relief from broadcasters, and the position ad50 7
vanced in Marcus is correct.
The Eleventh Circuit has also faced this issue. 50 8 In Chandler,
the public television station ("GPTC"), upon an action by a third-party
candidate seeking access to a political debate, argued that the FCC
had exclusive jurisdiction over broadcast disputes. 50 9 The district
court dismissed the argument by holding that GPTC was being sued
"in their capacities as state officials" and not in their capacity as
broadcasters, thus the FCC had no bearing on non-broadcast issues. 5 10 Hence, considering that both the Eighth Circuit and the
Eleventh Circuit have permitted jurisdiction in the lower federal
courts, absent exhaustion of a candidate's administrative remedies,
and the United States Supreme Court has yet to hold to the contrary,
the Eighth Circuit in Marcus was correct in determining that the jurisdiction in the federal courts was proper. 51 1
THE EIGHTH CIRCUIT CORRECTLY REFUSED INJUNCTIVE RELIEF FOR A
CANDIDATE
EXCLUDED
FROM
BECAUSE SUCH A CANDIDATE
MERITS OF His OR HER CASE
TELEVISED
is
DEBATES
PENDING
TRIAL
NOT LIKELY TO SUCCEED ON THE
Simply because a candidate's petition for inclusion in an upcoming political debate is idly awaiting adjudication, it does not automatically imply that a court should grant injunctive relief 5 12 In Marcus,
the court began its opinion by noting it was not "unmindful of the time
constraints faced by the [candidate]," but it also recognized a need to
balance that with other considerations. 5 13 In DataphaseSystems, Inc.
v. C.L. Systems, Inc., 514 the Eighth Circuit explained that four factors
must be considered collectively when determining whether or not injunctive relief is appropriate. 5 15 These four factors are: "(1) the threat
of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will in507. See supra notes 500-05 and accompanying text.
508. Chandler, 749 F. Supp. at 266.
509. Id.
510. Id. at 266-67. In Marcus, IPTV was sued as a state agency and the individually
named defendants were sued in their official capacities as state employees. Marcus,
Media L. Rep. (BNA) at 2532.
511. See supra notes 500-10 and accompanying text.
512. See infra notes 513-25 and accompanying text.
513. Marcus, 97 F.3d at 1140. The other considerations included "principles of judicial economy, equity, and respect for the judgment of the district court," as well as
IPTV's right to reflect on the record and not force IPTV into preparing a hasty response.
Id.
514.
515.
640 F.2d 109 (8th Cir. 1981).
Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981).
19981
THE FIRST AMENDMENT
[the] movant will
flict on other parties litigant; (3) the probability that5 16
interest."
public
the
(4)
and
merits;
the
on
succeed
It is rational to conclude that almost every candidate seeking injunctive relief from a court can prove that he or she will suffer some
form of irreparable harm if excluded from a televised political debate. 5 17 However, in CBS v. DNC, the Supreme Court determined
that "no private individual or group has a right to command the use of
broadcast facilities."5 1 8 Additionally, the Supreme Court has emphasized that "[ilt is the right of the viewers and listeners . . .which is
paramount."5 1 9 Hence, to grant an individual an absolute right to im5 20
pel the use of broadcast facilities is contrary to the public interest.
Furthermore, such an absolute right would impose severe hardship
upon the broadcaster. 52 1 Thus, the harm associated with allowing
outweighs
every candidate access to the broadcast airwaves5 generally
22
any harm inflicted upon the excluded candidate.
Moreover, candidates seeking an injunction may experience difficulty showing the likelihood of their success on the merits in pursuing
a lawsuit. 5 23 If a legally qualified candidate is excluded from a political debate, the candidate must demonstrate an insufficient basis for
the broadcasting decision. 524 Therefore, a court decision which denies
a candidate access to a televised debate via preliminary injunctive reis most likely not going
lief will likely be upheld because the candidate
52 5
to succeed on the merits of his or her claim.
CONCLUSION
In Marcus v. Iowa Public Television,52 6 the United States Court of
Appeals for the Eighth Circuit held that a public television station
could exclude a third-party candidate from a debate the station sponsored if the candidate was deemed "not newsworthy" in accordance
516. Dataphase,640 F.2d at 113.
517. Elrod v. Burns, 427 U.S. 347, 373 (1976) (stating that "[tihe loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").
518. CBS v. DNC, 412 U.S. at 113.
519. Red Lion, 395 U.S. at 390.
520. See supra notes 84-151 and accompanying text.
521. CBS, Inc. v. FCC, 453 U.S. at 372 n.2 (quoting Letter from Raymond E. Dillon,
Director of Political Sales at CBS, to Gerald F. Rafshoon, President of the CarterMondale Presidential Committee (Oct. 17, 1979) (published in part in CBS, Inc. v. FCC,
453 U.S. at 372 n.2).
522. See supra notes 516-20 and accompanying text.
523. See generally Marcus, 97 F.3d at 1141 (holding that the candidate could not
demonstrate "a likelihood of success on the merits").
524. Id. at 1142.
525. See supra notes 512-24 and accompanying text.
526. 97 F.3d 1137 (8th Cir. 1996).
524
CREIGHTON LAW REVIEW
[Vol. 31
with pre-determined editorial policies. 52 7 By doing so, the Eighth Circuit seemingly contradicted the guidance it set forth only months
before in Forbes v. Arkansas Educational Television Commission
("Forbes II").528 In Forbes H, the court held that a public television
station could not exclude a candidate from a debate the station sponsored based on a subjective decision that the candidate was not "viable." 529 Thus, the Eighth Circuit decided two cases containing very
similar issues in a short span of time with seemingly contrary re-
sults. 5 30 However, the problem that arises is not so much in distin-
guishing between Marcus and Forbes II, but rather in the
deliberations made by the court in coming to its conclusions.
The Marcus court was incorrect in saying a debate sponsored by
public television, where the candidates allowed to speak were limited
based on subjective criteria, represents a limited public forum.5 3 1
That makes no sense in light of the Eighth Circuit's recognition of
what constitutes a non-public forum. Rather, in accordance with the
guidelines handed down by the Supreme Court, the debates should
have been labeled as non-public forums. 53 2 Determining the type of
forum necessarily impacts the First Amendment analysis on the debate issue. 53 3 This could have far-reaching implications for broadcast53 4
ers and candidates all over the country.
One can argue that the analysis presented by the court, while certainly valuable, credible, and worthy of discussion, proved to be an
inefficient means of arriving at what could have been a much shorter
and easier route. 53 5 The Eighth Circuit has been wrong to avoid ruling on cases like DeYoung v. Patten,53 6 Forbes v. Arkansas Educa5 37
tional Television CommunicationNetwork Foundation ("ForbesI'9,
Forbes11, and Marcus in accordance with the 47 U.S.C. section 315.538
Basing its rulings in these cases on section 315, the court would have
clarified the issues and allowed broadcasters and candidates to better
predict what behavior is expected from them when the issue of candidates getting excluded from debates arises again. Ruling as it did, the
527.
528.
Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1144 (8th Cir. 1996).
93 F.3d 497 (8th Cir. 1996).
529. Forbes v. Arkansas Educ. Television Comm'n ("Forbes II"), 93 F.3d 497, 504-05
(8th Cir. 1996).
530.
Marcus, 97 F.3d at 144-45 (Beam, J., dissenting).
531. See supra notes 399-441 and accompanying text.
532. See supra notes 399-404 and accompanying text.
533. Perry Educ. Ass'n v. Perry Educs. Ass'n, 460 U.S. 37, 44 (1983).
534. Petition for Writ of Certiorari,Forbes v. Arkansas Educ. Television Comm'n, 93
F.3d 497 (1996), (NO. 95-2722WA), cert. granted, (NO. 96-779), 117 S. Ct. 1243 (1997).
535. See supra notes 442-98 and accompanying text.
536. 898 F.2d 628 (8th Cir. 1990).
537. 22 F.3d 1423 (8th Cir. 1994).
538. See supra notes 483-92 and accompanying text.
19981
THE FIRST AMENDMENT
Eighth Circuit has caused uncertainty in the broadcast community. 53 9
This is evidenced by Nebraska Education Television's decision to cancel a public television-sponsored debate only days after the Forbes II
decision was announced. 5 40 Subsequently, the Eighth Circuit, while
not wanting to overturn the Forbes II decision, was also desirous to
rule on Marcus in a manner that would not scare journalists away
from hosting debates for the benefit of their constituent viewers. 54 1 In
doing so, the court tried to clarify the two decisions by focusing on the
logic of distinguishing who qualifies for a debate based on "viability"
versus "newsworthiness." 54 2 Such a muddled attempt to show differences between Forbes II and Marcus only compounded the problem by
"seek[ing] to distinguish the indistinguishable." 54 3 This is particularly exasperating when one considers how precise the court could
have been if ruling in accordance with the language of 47 U.S.C. sec54 4
tion 315 instead.
Having made the foregoing criticisms of the court, I agree with
the outcome of Marcus. The court applied the test of whether First
Amendment restrictions were proper and correctly concluded that
they were in accordance with Marcus' message content, the significant
interest of the government in excluding that message, and the fact
that Marcus had alternative channels of communication. 5 45 For what
its worth, I also agree that the court came to the proper conclusion in
Forbes II and DeYoung as well, although the Forbes II decision would
be much easier to understand if the Eighth Circuit had ruled under
the guise of 47 U.S.C. section 315 rather than determining if "Viability" was a proper subjective standard for government decision5 46
making.
Finally, the Eighth Circuit - or any court for that matter - is correct in determining it has jurisdiction to decide cases containing issues like those presented in Marcus.5 47 The Supreme Court has not
539. See supra notes 471-77 and accompanying text.
540. Id.
541. Marcus, 97 F.3d at 1140-44.
542. Id. at 1142.
543. Id. at 1144-45 (Beam, J. dissenting).
544. See supra notes 442-99 and accompanying text.
545. See supra notes 176-82 and accompanying text.
546. It should again be noted that Forbes II is awaiting a review by the Supreme
Court. I respect the views of Mr. Richard D. Marks, the Counsel of Record for AETV,
who believes it can be shown that AETV did offer Forbes other air time. If that is true,
then I think Forbes could have been legally excluded from the debate just like Marcus.
However, as the record currently shows, it was asserted and not proven otherwise that
Forbes was not given an opportunity at other AETV venues. That clearly violates 47
U.S.C. § 315, which is the basis upon which I advocate the case should have been
decided.
547. See supra notes 500-11 and accompanying text.
CREIGHTON LAW REVIEW
[Vol. 31
indicated that such jurisdiction would be improper, and the FCC's
stance since 1987 does not give a candidate any chance of winning if
he or she pursues the action there. 5 48 Of course, the candidate's
chances of winning in federal court are not much better, but there is at
least some chance. The courts should not grant a candidate's request
for preliminary injunctive relief when the candidate is excluded from a
debate unless it can be shown that the broadcaster abused its discretion in making such an exclusion. A candidate will have great difficulty in proving the merits of his or her case once it goes to trial, and
thus the balance of harm is best weighted in favor of the broadcasters
54 9
when ruling on an injunctive motion.
The issues presented by a discussion of a candidate's First
Amendment rights versus a broadcaster's First Amendment rights is
certainly not filled with easy answers. On the one hand, courts must
demand that broadcasters allow political candidates to air their views
in accordance with the federal laws established by Congress. 5 50 On
the other hand, courts must also allow broadcasters wide editorial discretion to accomplish balanced programming that proves beneficial to
its viewers in pursuit of the public interest. 55 1 Courts also face the
dynamic of wanting to encourage broadcasters to host valuable programs, such as candidate debates, without taking away the broadcaster's ability to control the content of those programs. 552 As we
continue in our present era of election-time candidate offerings, where
third-party candidates have seen an exponential growth rate, the issues presented in Marcus will become increasingly noticeable as the
courts struggle to map a course in these new waters. Since the FCC
abandoned the fairness doctrine in 1987 and Congress has been unable to re-instate it as law, perhaps it is time for the Supreme Court to
re-evaluate exactly what the law is today and set everyone on a clear
course before the next federal election cycle begins.
Thomas F. Ackley - '99
548.
549.
550.
551.
552.
See supra notes 152-65 and accompanying
See supra notes 512-25 and accompanying
See supra notes 166-95 and accompanying
See supra notes 183-87 and accompanying
Marcus, 97 F.3d at 1141-44.
text.
text.
text.
text.