Who Decides Who'll Be Allowed on TV Debates?
The Nevada Supreme Court's ruling allowing a cable network to exclude Rep. Dennis Kucinich from a Democratic presidential debate was barely a blip on the media radar screen, quickly forgotten in the reporting of the caucus victories by Sen. Hillary Rodham Clinton and former Gov. Mitt Romney and the squabble over voting in casinos.
But in the long term, the court decision might prove to be as significant as any of the political events in the Nevada campaign. It constituted the strongest judicial statement yet of news organizations' near-absolute power to control participation in pre-election forums - including the debates scheduled in California next week in advance of the state's Feb. 5 primary.
Broadcasters' right to exclude candidates they consider marginal has been established at least since a U.S. Supreme Court ruling in a 1998 case involving a state-owned television station in Arkansas that had excluded a congressional candidate from a debate.
The court said the public station couldn't factor candidates' viewpoints into its decisions - a constitutional restriction on government conduct that probably wouldn't apply to a private broadcaster - but could bar a candidate with little public support on journalistic grounds.
Kucinich, the Ohio congressman who polls in the low single digits but has a fervent following among his party's anti-war base, presented a different argument to challenge his exclusion from MSNBC's Jan. 15 debate in Nevada: that the cable channel had promised to let him in when he met its standards, then abruptly changed those standards to keep him out.
MSNBC said initially that the debate was open to Democrats who placed in the top four in a national poll. It invited Kucinich on Jan. 9 after a Gallup Poll a few days earlier ranked him fourth. But two days later, after New Mexico Gov. Bill Richardson dropped out of the race, the channel narrowed its criteria to the top three candidates and withdrew Kucinich's invitation.
The day before the debate, a Nevada judge ordered MSNBC to let Kucinich participate, saying the cable operator had entered into a binding contract that it couldn't rescind once the candidate accepted. The state's high court quickly granted review and, an hour before the debate, ruled 7-0 in the cable channel's favor.
In a terse, five-page decision, the court said MSBNC hadn't made a contractual promise to Kucinich, just an invitation that it was free to withdraw. It said that courts have no power to require broadcasters to grant equal access to diverse viewpoints and that the judge's threat to cancel the debate if Kucinich were excluded would amount to an unconstitutional prior restraint on freedom of the press.
The bottom line: Debates, the public's sole opportunity to see competing candidates in a neutral setting, are the prerogative of the sponsoring organizations - typically, these days, the news media - which set the criteria and have free rein to alter them.
In California, where debates are scheduled next Wednesday for Republicans and Jan. 31 for Democrats, the sponsors - the Los Angeles Times, CNN and Politico.com - have said they will invite any candidate who has finished in the top four in another state and draws at least 5 percent support in a January poll.
Those standards appear to be within reach for Kucinich's Republican counterpart, Rep. Ron Paul, the Texas libertarian and anti-war candidate who has been excluded from several Republican debates but finished second in Nevada.
Kucinich hasn't been allowed into a debate in any state since Christmas, and it's unclear whether he can meet the 5 percent threshold. Campaign spokesman Tom Staudter said he's confident Kucinich will be allowed to debate unless the sponsors change the rules.
Staudter was equally optimistic that the Nevada ruling, and the system it ratified, would be undone by the court of public opinion. "There'll be legislation by 2012 ending big-media control" of campaign debates, he predicted.
The Nevada ruling drew varying assessments from legal analysts contacted by The Chronicle.
Richard Hasen, a professor at Loyola Law School in Los Angeles who runs a widely viewed Web site on election law, electionlawblog.org, said the decision made sense both legally and as public policy.
MSNBC's invitation to Kucinich wasn't binding, Hasen said, because the candidate hadn't left for Nevada before the cable channel pulled the offer. He also said sponsors can reasonably decide to include less-prominent candidates in early debates, then winnow the field in later events so voters won't be "distracted by those who may have interesting viewpoints but little chance."
But Eric Talley, a law professor who teaches contracts at UC Berkeley, said MSNBC's offer may have become legally binding when Kucinich started making arrangements to come to Nevada, telling his staff and posting information about the debate on his campaign Web site. Talley also said the timing of MSNBC's decision was suspicious and suggested political motivation.
"If there's any point in the life of a democracy where (diversity of) viewpoints matters, it's in the run-up to a national election," Talley said. "You'd think you'd want to put a thumb on the scale in favor of inclusion."
In court papers, Donald Campbell, lawyer for the cable operator's parent company, NBC, said MSNBC had narrowed its criteria for debate participation "in light of the dwindling number of candidates" and not because of Kucinich's views.
Legally, "the selection of debate participants is entirely within the reasonable journalistic judgment of the presenter," Campbell said. If the station was bound by its initial invitation to Kucinich, he said, "news organizations would be forbidden from making timely decisions about who or what to feature in their programming based on daily developments in news."
Kucinich, for his part, drew a connection between his political views and his exclusion by an affiliate of NBC, whose chief owner, General Electric, is one of the nation's largest weapons manufacturers.
During the debate, for example, the three Democratic candidates - Sens. Clinton and Barack Obama and former Sen. John Edwards - all pledged vigorous enforcement of a law cutting off federal funds to any university that denied full access to military recruiters. Kucinich, asked the same question a day later in a simulated debate on Pacifica Radio's "Democracy Now," denounced the law, saying that "our society is being militarized" and that "NBC is really promoting war here."
But most legal analysts said they thought the Nevada court's conclusion - that it couldn't dictate the terms of a televised debate - would be shared by other courts, though the ruling is not binding in other states.
"I understand the frustration of less-known candidates who can't get attention," said William McGeveran, a University of Minnesota professor of information law, said in a posting on the info/law blog (blogs.law.harvard.edu/infolaw). "Nonetheless, we need to let news organizations make their own decisions about what information deserves our attention."
"It's possible that (Kucinich) has a decent claim for breach of contract," said Jesse Choper, a constitutional law professor at UC Berkeley. But a court order to a network to let a candidate debate would be "the government telling them who they have to put on TV," which would raise constitutional problems, he said.
Media lawyer Terry Francke, founder of an open-government organization called Californians Aware, said other courts may well treat decisions like MSNBC's as "a legitimate exercise of editorial discretion" and refrain from ordering changes in debates.
But he said media organizations are doing themselves no favors with an already skeptical public when they announce pre-debate criteria and then reshuffle them at the last minute.
"My guess is, even most people who really don't miss Kucinich's voice that much are going to be inclined to be more cynical than they are now about the media in seeing how easily they're willing to change the rules," Francke said.
To read the Nevada Supreme Court ruling and related documents, go to:
A transcript of the simulated debate that includes Kucinich is available at:
The Republican presidential candidates will debate from 5 to 7 p.m. Wednesday at the Reagan Library in Simi Valley.
The Democratic presidential debate will be held from 5 to 7 p.m. Jan. 31 at the Kodak Theater in Hollywood. Both debates will be carried live on CNN.
E-mail Bob Egelko at email@example.com.
© 2008 The San Francisco Chronicle