http://www.digitaljournal.com/article/249313

Op-Ed: Do All Candidates Have a Right to Participate in Debates?

Posted Jan 24, 2008 by Dave Giza
The Nevada Supreme Court's decision to exclude Rep. Dennis Kucinich from an MSNBC televised presidential candidate debate has far reaching implications regarding the power of networks deciding on who or who shouldn't be allowed to participate.
The recent Nevada Supreme Court decision excluding Ohio Rep. Dennis Kucinich has a precedent. The U.S. Supreme Court ruled in a 1998 decision that a public television station in Arkansas could exclude a congressional candidate from a debate because he had little public support. ''The court said the public station coudn'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 said that he was excluded from the January 15 debate in Nevada when MSNBC abruptly changed its admission standards after he initially met them.
According to MSNBC, the debate was open to the top four Democratic presidential candidates. A Gallup Poll placed Kucinich in the top four a few days prior to MSNBC's invitation on January 9. However, on January 11, New Mexico Governor Bill Richardson dropped out of the race and the network informed Kucinich that it was changing its ruling to only allowing the top three candidates.
On January 14, a Nevada judge ordered that Kucinich be allowed to participate in the debate because MSNBC had entered into a binding contract with him. The Nevada Supreme Court reviewed the case and an hour before the debate, ruled 7-0 in the network's favor for the exclusion of Kucinich.
It should be mentioned that the judge who ruled in favor of Kucinich to participate also threatened the station to cancel the debate if the candidate were excluded. The high court ruled in a five-page decision that MSNBC didn't enter into any type of binding contractual agreement with Kucinich. It was only an invitation and they had the right to withdraw it. Courts don't have any power requiring broadcasters to convey different perspectives to viewers and canceling the debate if Kucinich wasn't allowed to participate meant a restraint on freedom of the press.
It means that the news media has the prerogative to control who participates in the debates. The Los Angeles Times, CNN and Politico.com are sponsoring the January 30 Republican and January 31 Democratic presidential debates in California. Their criteria for candidate inclusion is finishing in the top four in another state as well as posting at least 5 percent in a January poll.
It's unclear whether Kucinich can make the 5 percent threshold but it appears that Ron Paul will qualify since he finished second in Nevada's Republican caucus.
Kucinich campaign spokesman Tom Staudter predicted that his candidate would be allowed to participate in the California debate unless the sponsors changed their rules. He also said that the weight of public opinion would force Congress to remove big-media's control of the debates by 2012.
Various legal analysts had different views regarding the Court's decision: Richard Hasen, a professor at Loyola Law School in Los Angeles, said that the network's invitation to Kucinich wasn't binding because he hadn't left for Nevada before MSNBC rescinded its offer. He also said that sponsors can include all candidates in early debates but exclude ones who have minimal support later because it detracts from voters making informed decisions.
However, Eric Talley, a professor at UC Berkeley who teaches contractual law, said that the invitation may be legally binding since Kucinich was making arrangements with his staff to come to Nevada and was making postings on his website advertising his appearance at the debate. Talley criticized the Nevada Supreme Court's decision: ''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. You'd think you'd want to put a thumb on the scale in favor of inclusion.''
Donald Campbell, a lawyer for NBC, MSNBC's parent company, said that Kucinich was excluded because there aren't too many candidates left in the race and not because of his views. If the contract were legally binding, news organizations couldn't make decisions on what to include or exclude on their night-time evening news broadcasts.
During the debate, Sens. Hillary Clinton and Barack Obama as well as former Sen. John Edwards strongly supported a law denying federal funds to any university that prevented full access to military recruiters. A day after the debate, Kucinich said that he opposed that law. General Electric is one of the nation's largest weapons manufacturers and has stock ownership in NBC.
William McGeveran is a University of Minnesota information law professor who agrees with the Court's decision. He doesn't have any problem with letting news organizations decide which information the public will view.
Jesse Choper is a constitutional law professor at UC Berkeley. He believes that it's unconstitutional for a court to force a network who to put on TV.
''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.''
What do you think? Do you agree or disagree with the Nevada Supreme Court's decision excluding Kucinich from the debate? I believe that it's a horrible decision. Just as long as a candidate is on the ballot means that he or she should participate in any debate. It doesn't matter where they are currently languishing in the polls. The media's primary responsibility is informing the public and letting the viewer make an informed decision. Excluding any candidate from a debate removes that opportunity from the viewer. It's blatantly unfair and wrong not to mention narrow-minded.
Source: Who decides who'll be allowed on TV debates? by Bob Egelko from www.sfgate.com