Case Overview

Legal Principle at Issue

Whether a public television station sponsoring a candidates debate may exclude a legally qualified candidate who the station does not believe can win the election.


Reversed. Petitioning party received a favorable disposition.


The Arkansas Educational Television Commission, a state agency, sponsored a debate between the Democratic and Republican candidates for a U.S. House of Representatives seat in Arkansas' Third Congressional District. The Commission only invited the two major party candidates and excluded Ralph Forbes, a legally qualified independent candidate. AETC determined Forbes did not have sufficient "political viability" for inclusion. Forbes sued the agency.

After a federal district court dismissed the claim, the U.S. Court of Appeals for the 8th Circuit reversed, finding that AETC had created a limited public forum to which Forbes had a presumptive right of access. Forbes v. Arkansas Educational Television Commission, 93 F.3d 497 (8th Cir. 1996). The appeals court determined that AETC's assessment of "political viability" was not a compelling enough interest nor narrowly tailored enough reason to pass constitutional review.

The Court analyzes right of access cases using the public forum doctrine. There are three types of fora: traditional public fora, limited or designated public fora and nonpublic fora. Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983). Even in a nonpublic forum, government officials cannot, consistent with the First Amendment, discriminate based on viewpoint. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). However, television broadcasters enjoy &"the widest possible journalistic freedom" consistent with their public responsibilities. FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984).

Importance of Case

The case shows the continued viability of the public forum doctrine. The Court's decision also establishes that television broadcasters enjoy wide latitude in the exercise of editorial discretion. Even in the case of sponsored political debates, television broadcasters can exclude candidates of limited appeal as long as the reasons for the exclusion are reasonable and viewpoint neutral.

The Court first noted that public television broadcasters must enjoy wide latitude when making editorial judgments without being subjected to claims of viewpoint discrimination. Next, the Court determined that AETC did not create a limited, or designated, public forum when it sponsored the debate. Distinguishing between "general access" and "selective access", the Court wrote that "a designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers." Because of the Court's finding that the AETC-sponsored debate was a nonpublic forum, AETC complies with First Amendment guarantees as long as it did not discriminate based on political viewpoint. At an earlier stage of the complex procedural history, a jury found that AETC did not deny access to Forbes based on viewpoint. The U.S. Supreme Court found there was ample support for this finding.

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