Friday, May 14, 2010

Federal Court Says Candidate Properly Excluded from TV Debate

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The U. S. District Court for the District of Hawaii this past week refused to grant a temporary injunction to a Congressional candidate to prevent the airing of a televised political debate from which he was excluded.

In C. Kaui Jochanan Amsterdam v. KITV 4 Television Station; Mike Rosenberg, General Mgr. (Case No. 10-00253), the Court rejected the plaintiff's claim that his First Amendment and Fourteenth Amendment rights were violated by his not being included in a televised debate among three candidates for the U.S. House of Representatives seat. In all, 14 candidates are seeking the vacant Congressional seat. KITV 4 and the League of Women Voters are co-sponsoring the debate.

The Communications Act of 1934 and FCC regulations control tv debates among candidates for public office. Specifically, Section 315 of the Act precludes a private right of action by an individual against a broadcast entity concerning political debates.

The Court cited Arkansas Television Commission v. Forbes, 523 U.S. 666, 682-83 (1998), writing that the defendant's exclusion of the plaintiff from the tv debate was a "reasonable viewpoint-neutral exercise of journalistic discretion." The plaintiff's failure to generate "appreciable public interest," and not his political viewpoint, was the basis for his absence from the stage with some of his fellow candidates, the Court held. A televised candidate debate is a nonpublic forum, and no First Amendment issue is raised, because the tv station is a privately owned business, not a government entity; thus, no state action is presented.

"TUOL" agrees with the Court's ruling, which is consistent with well-established legal precedent. Still, there is a chicken-and-egg aspect to the lawsuit, in that the broadcaster tells the candidate: "You're not a major candidate with sufficient voter support to merit your participation in the debate," and the candidate responds: "I'm lacking in public support because I can't get media exposure with networks not allowing me to participate in debates."

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