Arkansas Educational Television Commission v. Forbes

In 1992, when the Arkansas Educational Television Commission (AETC) sponsored a debate for candidates in the Third Congressional District, it rejected a request by Ralph Forbes to be included. Forbes was an activist who had qualified for a place on the ballot as in independent candidate by securing the required number of signatures. In response, Forbes, whose candidacy had little apparent public support, challenged the denial in federal district court, claiming that he had a First Amendment right to participate. When his request was denied, he appealed to the Court of Appeals for the Eighth Circuit, where the decision was reversed. The AETC then appealed to the U.S. Supreme Court, which granted certiorari (an order by which a higher court reviews a lower court’s decision), putting it on it calendar to be argued in October 1997. In agreeing to hear the case, the Court sought to determine, as Justice Anthony Kennedy later wrote, “whether, by reason of its state ownership, the station had a constitutional obligation to allow every candidate access to the debate.”

Given its distinctive position as a state agency that owns and operates a network of six noncommercial television stations, Arkansas Educational Television Network (AETN), which was renamed Arkansas PBS in 2020, has systems in place to help it project impartiality and fairness. The AETC consists of eight members, each appointed by the governor to an eight-year term. They are prohibited from holding any other state or federal public office with the exception of teaching positions. As part of the effort to shield the commission from political pressure, it employs an executive director and professional staff who have great influence in the planning of the network’s programming. Too, the AETC has also adopted the “Statement of Principles of Editorial Integrity in Public Broadcasting,” which commits the organization to industry standards in an effort to keep the network’s programming “free from pressure from political or financial supporters.”

In the spring of 1992, after deciding to hold a series of five debates between candidates for federal office—one for the Senate election and one for each of the four congressional contests in Arkansas—the AETC worked closely with Bill Simmons, the state bureau chief for the Associated Press, to develop a format for the debates. After deciding on one-hour debates that would include fifty-three minutes for questions and answers, the AETC and Simmons, acknowledging the obvious time constraints, decided, in Simmons’s words, “to limit participation in the debates to the major party candidates or any other candidate who had strong popular support.”

With those guidelines established, following the May 27 state primaries, on June 17, 1992, the AETC invited the Republican and Democratic nominees for Arkansas’s Third Congressional District—Tim Hutchinson and John VanWinkle, respectively—to participate in the AETC debate for that seat. A little over two months later, after obtaining the required number of signatures, Ralph Forbes was certified as an independent candidate qualified to appear on the ballot for the Third District seat. With his certification in hand, on August 24, 1992, Forbes, a perennial and controversial candidate who had regularly but unsuccessfully sought election to a range of offices in Arkansas, wrote to the AETC requesting that he be included in the debate scheduled for October 22, 1992. His request was denied on September 4, with AETC executive director Susan Howarth explaining that the AETC had “made a bona fide journalistic judgement that our viewers would be best served by limiting the debate” to the previously invited candidates.

Just days before the debate, on October 19, 1992, Forbes filed suit against the AETC. Seeking an injunction that would mandate his inclusion in the event, he based his claim in both the First Amendment and 47 U.S.C. § 315, a law that, as Justice Anthony Kennedy later wrote, “affords political candidates a limited right of access to television air time.” The district court denied the request and ruled for the AETC, given that the jury, as the U.S. Supreme Court later noted, had found no evidence that the decision to exclude him had been “influenced by political pressure or disagreement with his views.” The district court entered judgment for the AETC. However, the Eighth Circuit reversed, ruling that “the debate was a public forum to which all ballot qualified candidates had a presumptive right of access. Applying strict scrutiny, the court determined that the AETC’s assessment of Forbes’ ‘political viability’ was neither a compelling nor a narrowly tailored reason for excluding him.” The AETC appealed the Eighth Circuit’s decision, and with the U.S. Supreme Court noting that Eighth Circuit’s ruling presented a conflict with a 1990 decision by Eleventh Circuit on March 17, 1997, the Court granted certiorari, scheduling arguments for October 8, 1997.

At the outset of its deliberations, the Court had to recognize that “unlike most other public television programs[,] candidate debates” are treated differently, subject instead to “scrutiny under this Court’s public forum doctrine.” In applying that scrutiny, the Court began by recognizing that it had previously “identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.” It added that all the parties to the case agreed that the AETC-sponsored debate was a non-public forum, and thus under the Court’s previous rulings, access could be restricted “if the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s views.”

That being said, after reviewing the manner in which the debate was organized, the Court overturned the Appeals Court’s ruling. In its opinion by Justice Kennedy, writing for a six-member majority, the Court determined that “Forbes’ lack of support, not his platform, was the criterion” used to decide on his exclusion. As Kennedy noted, “The very premise of Forbes’ contention is mistaken. A candidate with unconventional views might well enjoy broad support by virtue of a compelling personality or an exemplary campaign organization. By the same token, a candidate with a traditional platform might enjoy little support due to an inept campaign or any number of other reasons.” He added that there was no evidence that, in excluding Forbes, the AETC had “attempted manipulation of the political process.” Rather, the Court observed that the “evidence provided powerful support for the jury’s express finding that AETC’s exclusion of Forbes was not the result of ‘political pressure from anyone inside or outside [the AETC].’” Kennedy added, “There is no serious argument that AETC did not act in good faith in this case. AETC excluded Forbes because the voters lacked interest in his candidacy, not because AETC itself did,” before concluding that the “broadcaster’s decision to exclude Forbes was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.”

In his dissent, Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsburg, noted that while he did “not endorse the view of the Court of Appeals that all candidates who qualify for a position on the ballot are necessarily entitled to access to any state sponsored debate,” he was “convinced…that the constitutional imperatives that motivated our decisions in…[civil rights cases]” were endangered “when the government allows selective access for individual speakers rather than general access for a class of speakers.” He called instead for “the adoption of objective criteria” for making such determinations.

The case has been studied and scrutinized in a number of law review articles, with legal commentators expressing a general concern about the limitation on free speech and debate they believed the decision allowed. But those views notwithstanding, the ruling has remained settled law.

For additional information:
Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).

Greenfield, Daniel B. “Arkansas Educational Television Commission v. Forbes: Ending Debate on Political Debates.” Mercer Law Review 50, no. 2 (1999).

Ortman, Francis J., III. “Silencing the Minority: The Practical Effects of Arkansas Educational Television Commission v. Forbes.” Catholic University Law Review 49 (Winter 2000).

Toohey, James B. “A Standard with No Moxie: The Supreme Court in Arkansas Educational Television Commission v. Forbes: Allows Government Actors to Choose Candidate for Television Debate with Little Restriction.” Loyola University Chicago Law Journal 30 (Summer 1999).

Vile, John R. “Arkansas Educational Television Commission v. Forbes (1998).” Free Speech Center at Middle Tennessee State University, July 2, 2024. https://firstamendment.mtsu.edu/article/arkansas-educational-television-commission-v-forbes/ (accessed February 28, 2025).

William H. Pruden III
Ravenscroft School