Electoral Exceptionalism
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Description
In Arkansas Educational Television Commission v. Forbes, the Supreme Court held that candidate debates are special for First Amendment purposes. Because “candidate debates are of exceptional significance in the electoral process,” the Court concluded that the First Amendment principles that apply to state-sponsored candidate debates are different from those that apply to any other form of broadcasting. The case involved a state-owned television station which decided to exclude a ballot-qualified independent candidate for Congress from a candidate debate it was sponsoring. The public television station allowed two other candidates—a Democrat and a Republican—to participate. But the station concluded that this particular candidate should not appear in the debate, offering as a justification the assertion that the candidate was not sufficiently likely to win the election. The candidate, however, insisted that this was tantamount to being excluded because the station disapproved of his unpopular political viewpoint. At the heart of the case was the difficult question whether state journalism was best seen as the state or as journalism, or some hybrid of the two. The excluded candidate insisted that the public television station was an arm of the state, and hence subject to stringent First Amendment rules prohibiting “viewpoint discrimination”—the purposeful exclusion of certain ideas solely because the excluder disapproves of the message conveyed by those ideas. In contrast, the public station insisted its activities should be treated as journalism, the consequence being that its editorial judgment—including the right to favor some viewpoints over others—was fully protected by the First Amendment. The Court concluded that the state-owned television station should be treated like a private station engaged in journalism, with essentially the same editorial latitude and the same immunity from the First Amendment demands of viewpoint neutrality. But the Court then went on to add an intriguing qualification, holding that candidate debates, because of the special role they serve in democratic politics, were to be treated as an exception to the Court’s newly announced principle. “Deliberation on the positions and qualifications of candidates is integral to our system of government,” the Court observed, “and electoral speech may have its most profound and widespread impact when it is disseminated through televised debates.” In the end, the Court articulated a general rule and an exception. In general, a public television station, like other branches of the press, is permitted to prefer certain viewpoints over others, even when it is engaged in political programming. When the station runs a candidate debate, however, it may not discriminate on the basis of viewpoint. Our goal in this chapter is not to deal with the question of state journalism, not even with the surprising claim, which ultimately determined the result in Forbes, that excluding a candidate from the debate based on judgments about the likelihood of his winning the election was not a form of viewpoint-discrimination. Rather, we want to explore the implications of the Court’s holding that candidate debates are special for First Amendment purposes, and that the First Amendment principles that might apply to candidate debates are different from the First Amendment principles that would otherwise have been applied. More broadly, we want to explore a possible extension of this principle. If candidate debates, because of the special role they serve in democratic politics might be subject to special First Amendment principles, then it is possible that the Supreme Court, or at least the six members of the Court who constituted the Forbes majority, might also believe that elections themselves—because of the special role that elections serve in a democracy—should also be the subject of special First Amendment principles?
Source Publication
If Buckley Fell: A First Amendment Blueprint for Regulating Money in Politics
Source Editors/Authors
E. Joshua Rosenkranz
Publication Date
1999
Recommended Citation
Schauer, Frederick and Pildes, Richard H., "Electoral Exceptionalism" (1999). Faculty Chapters. 1965.
https://gretchen.law.nyu.edu/fac-chapt/1965
