I am back from my blogging hiatus, during which I have been celebrating Christmas, grading, writing, and attending the annual schmooze-a-thon known as the American Association of Law School Annual Meeting.
And what better point of re-entry than a post combining my love of info/law with my love of politics?
Late yesterday evening, a Nevada trial judge ordered MSNBC to include Dennis Kucinich in tonight’s televised debate from Las Vegas. The network had planned to host only the top three Democratic candidates. MSNBC lawyers filed an appeal with the Nevada Supreme Court (the state has no intermediate appeals court) but it is not clear if the temporary restraining order will be reviewed before show time tonight.
[UPDATE: The New York Times now reports that the Nevada Supreme Court will hear oral arguments at 4:30 ET, four and a half hours before air time.]
The principal legal basis for Kucinich’s complaint was nothing to do with free speech law or even election law, however. It was a contract claim. According to Kucinich, MSNBC originally promised to include him in the debate, and then changed the parameters for participation. Having once promised to have him, Kucinich argues, the sponsors cannot retract the offer.
I have not seen the judge’s ruling, but this certainly strikes me as a troubling interference with a news network’s ability to structure its coverage as it sees fit. The debates are not official components of the election, they are just a different form of news interview. It may well be that we should also have more officially sponsored debates with neutral rules that admit more candidates, but letting judges issue injunctions to set the rules of a privately-organized debate seems unwise. Note too that MSNBC is a cable channel, not a broadcast channel, and so arguments about using public airwaves or FCC licenses pretty much miss the point.
And why are debates special? It’s hard to distinguish this “debate” from any other cable-news interview show. Does every guest whose scheduled interview has ever been “bumped” when the broadcaster changes its plans have a breach of contract claim? A guest can be sitting in the chair, made up and ready to go, when suddenly Britney is holed up in her bathroom or something and the interview never occurs. If the guest was going to talk about subprime mortgages or global warming, we may decry the host’s news judgment, but sometimes that’s the way the First Amendment cookie crumbles.
The Nation is totally sympathetic to Kucinich’s position. (Their article’s characteristically acerbic lead: “Some principles are worth fighting for: like the cherished right of television networks to decide who is and who is not a legitimate candidate for president.”) But they report that the judge relied on the contract claim and, at least officially, not on any broader principles of free speech or access to the airwaves:
“Had it been established at the beginning that they’ll only take the top three for the debates, I wouldn’t have any problem enforcing it,” the judge explained to NBC’s lawyers. “I’m somewhat offended that a legitimate candidate was invited to a debate and then uninvited under circumstances that appear to be that they just decided to exclude him.”
I checked with my friend and colleague Dan Schwarcz, who teaches contracts here at the University of Minnesota. He said the claim is not necessarily loony. As you learn the first semester of law school, a contract requires and offer and an acceptance (check, check) and then some “consideration” by both sides — essentially an exchange for value. But Dan points out that under a “unilateral contract,” the network can offer value in exchange for Kucinich doing something. Dan’s example: if I offer you $500 to walk across the Brooklyn Bridge, and you do it, then I owe you.
The complication here is that the promise seems to have been withdrawn before Kucinich began to fulfill his part of the bargain. (Indeed, Kucinich learned of the judge’s decision when an aide passed him a note while he was appearing on Fox Business Network and the candidate said, “Holy smokes! I just found out. I have to get off the phone now. I have to make plans to go to Nevada.” Sounds like a law school exam question about whether Kucinich had begun performance…).
I guess the moral of the story is: when inviting guests for your news show, always tell them that the invitation is subject to change. Either that or: don’t mess with Dennis Kucinich.