Info/Law

In part for reasons I discussed yesterday, the Nevada Supreme Court issued an emergency decision vacating a lower court injunction — “less than an hour before showtime” — that would have forced MSNBC to include Dennis Kucinich in last night’s Democratic primary presidential debate. A few additional comments:

1. Kucinich and some media outlets are wrongly painting this as a decision about whether media entities can exclude particular candidates from debates. But that issue is slam-dunk settled law, and Kucinich is on the losing end. In Arkansas Educational Television Comm’n v. Forbes, the Supreme Court held that even a public broadcaster could exclude candidates based upon “a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.” The standard would be even less stringent for a private cable broadcaster like MSNBC. Even the lower-court judge who entered the original order had said, “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.” Going forward, there really is no legal basis to require that any debate organizer include Kucinich.

2. In a puzzling wrinkle, the local NBC affiliate scrapped its plans to simulcast the Kucinich-free debate because of unexplained legal problems. On the air one anchor explained, with the articulateness of local TV news journalists everywhere, that “because of legal ramifications, we’re not allowed to show the debate” and “as a result of that [Supreme Court] decision, we, according to legal rules here and there, are not allowed to show the debate.” I have no idea what they are talking about. The Nevada Supreme Court vacated the injunction in toto, using very strong language. There was nothing left to obey. Am I missing something? Or did Channel 3 just have an overly timid lawyer?

3. The contract claim on which the decision below relied was pretty weak. Essentially, Kucinich said that MSNBC’s original invitation to him constituted a contract which it could not revoke unilaterally. Election law guru Rick Hasen, who also happens to be a remedies prof and a contracts prof too, thought that if Kucinich had actually shown up at the debate, that might have constituted performance and created a binding contract. (My friend Dan Schwarcz said much the same yesterday.) In this case that wasn’t so: at the time of the lower-court order Kucinich wasn’t even in Nevada yet and he only changed his plans and flew out after the decision. Beyond the particulars of this case, I imagine these disputes usually would emerge before air time. But more broadly, any interpretation that could bar a broadcaster from withdrawing interview requests based on its evolving news judgment is pretty troubling.

4. I understand the frustration of less-known candidates who can’t get attention (not just Kucinich but Ron Paul on the GOP side and many others who have already dropped out). Nonetheless, we need to let news organizations make their own decisions about what information deserves our attention. If you surge from the back of the pack like Mike Huckabee, then you will get covered. Otherwise, you won’t. Early in the race, even Mike Gravel got to be in the debates. Now, the media is focusing more than ever on the front of the pack. But we shouldn’t compel mainstream media to force-feed us with every minor candidate who has 2% support, or who filed papers with the FEC. Not only would that be unconstitutional, but it would just take away valuable air time from the people who actually might be our next President. The answer must lie elsewhere: in campaign finance rules such as public financing, in organizing other debates with broader rules, in electoral reform. But courts taking over editorial control of content certainly is not the way.

Filed under: Court Decisions, Intermediaries, Media, Voting