Forbes v. Arkansas Educational Television Commission

_____________

No. 95-2722WA
_____________

Ralph P. Forbes, and *
The People, *
*
Appellant, *
*
v. *
*
*
The Arkansas Educational *
Television Commission, and its *
Board of Directors in their *
Official Capacities; The *
Arkansas Educational *
Telecommunications Network *
Foundation, and its Members and *
Officers Susan J. Howarth, in * On Appeal from the United
her Official Capacity as * States District Court
Executive Director; Victor * for the Western District
Fleming, in his Official * of Arkansas.
Capacity as Chairman; G. E. *
Campbell, in his Official *
Capacity as Vice-Chairman; *
Dr. Caroline Whitson, in her *
Official Capacity as Secretary; *
Diane Blair, in her Official *
Capacity as Commissioner; *
S. McAdams, in his Official *
Capacity as Commissioner; *
James Ross, in his Official *
Capacity as Commissioner; *
Jerry McIntosh, in his Official *
Capacity as Commissioner; *
Lillian Springer, in her *
Official Capacity as *
Commissioner; Amy L. Oliver, in *
her Official Capacity as *
Production Manager; Bill *
Clinton, his Official Capacity *
as Governor of the State of *
Arkansas; John Does, Sued as *
certain "John Doe" crooked, *
lying politicians and *
political "dirty tricks" *
operatives and special *
interests, etc.; KHBS *
TV/Channel 40 UHF; KHOG *
TV/Channel 29 UHF; American *
Broadcasting Company, Agent *
Darrel Cunningham; *
Steve Barnes, KARK TV, *
4 Eye-Witness News and AETN *
Producer; Oscar Eugene Goss, *
Arkansas Educational Television *
Network; Carol Adornetto; *
Larry Foley; Lavenia Craig, *
in her Official Capacity as *
Commissioner; Robert Doubleday, *
in his Official Capacity as *
Commissioner, *
*
Appellees. *

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Submitted: April 11, 1996

Filed: August 21, 1996
___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and JOHN R.
GIBSON, Circuit Judges.
___________

RICHARD S. ARNOLD, Chief Judge.

This case is before us for the second time. On the prior
appeal, this Court, sitting en banc, held that the plaintiff, Ralph
P. Forbes, had stated a claim. Forbes v. Arkansas Educational
Television Network, 22 F.3d 1423 (8th Cir.) (en banc), cert.
denied, 115 S. Ct. 500 (1994) (petition of AETN), 115 S. Ct. 1962
(1995) (petition of Mr. Forbes). The case arises out of a debate
staged by the defendant Arkansas Educational Television Commission,
an agency of the State of Arkansas, between the Democratic and
Republican candidates for Congress in the Third District of
Arkansas in 1992. Mr. Forbes, who was also a legally qualified
candidate in that race, asked to be included in the debate but was

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refused. He claimed, among other things, that his exclusion
violated the First Amendment, as made applicable to the states
through the Due Process Clause of the Fourteenth Amendment. We
held that the First Amendment applied fully to the Arkansas
Educational Television Network (AETN), and that the defendants were
not free to exclude Mr. Forbes without a reason good enough to pass
muster under that Amendment. The case had not progressed far
enough for defendants to file an answer. Hence, there was no way
of knowing, on the state of the record as it then existed, why AETN
had excluded Mr. Forbes. The case was remanded for further
proceedings.

On remand, the plaintiff's First Amendment claim was tried to
a jury. By special verdicts, the jury found that the decision to
exclude the plaintiff from the debate was not the result of
political pressure, and that it was not based on opposition towards
plaintiff's political opinions. In addition, the District Court
instructed the jury that the congressional debate, as set up by the
defendant network, was a non-public forum. Judgment was entered
for defendants.

Mr. Forbes now appeals. He argues that the debate was a
limited public forum, and that the reason given for excluding him,
that he was not a "viable" candidate, even if it was the true
reason, was not legally sufficient. We agree. We hold that a
governmentally owned and controlled television station may not
exclude a candidate, legally qualified under state law, from a
debate organized by it on such a subjective ground. To uphold such
a defense would, in our view, place too much faith in government.

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 I.

We briefly restate enough of the facts and proceedings below
to place the present issue in context. In October 1992, the
Arkansas Educational Television Commission decided to conduct and
broadcast a debate between the Republican and Democratic candidates
for Congress in the Third District of Arkansas. The plaintiff,
Ralph P. Forbes, then became a duly qualified independent candidate
under state law. He was certified as an independent candidate
because he had gathered enough signatures on petitions. Under
state law, a candidate must file petitions signed by at least three
per cent. of the qualified electors in the district in which he is
seeking office, provided, however, that no more than 2,000
signatures are required. Ark. Code Ann. § 7-7-103(c)(1). Mr.
Forbes heard about the debate and asked to be included. AETN
refused, and the debate took place on October 22, 1992, without Mr.
Forbes's participation. In the meantime, the plaintiff had filed
suit in the District Court, seeking a preliminary injunction, but
this relief was denied. Thereafter, the District Court granted
AETN's motion to dismiss the complaint under Fed. R. Civ. P.
12(b)(6) for failure to state a claim.

The plaintiff appealed, and this Court, sitting en banc,
affirmed in part and reversed in part. We rejected Mr. Forbes's
claim under the Federal Communications Act, holding that § 315 of
that Act, 47 U.S.C. § 315, does not create a private cause of
action. As to the First Amendment claim, however, we held that
Forbes's pleading was sufficient to survive a motion under Rule
12(b)(6). The defendants argued that the case should be governed
by public-forum analysis. In response to this position, we held
that governmentally owned television stations are not traditional
public fora, but that they might, under the particular
circumstances of any given case, create a limited public forum, "a
place that generally is not open for public expression, but that

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the government has opened for use for free speech for only a
limited period of time, a limited topic, or a limited class of
speakers." Forbes, 22 F.3d at 1429 (citations omitted). We added:

Since the key determination of whether a forum
is a limited public one is the government's
acquiescence in its use for expressive
purposes, it is certainly possible that AETN
created a limited public forum when it chose
to sponsor a debate among the candidates for
the Third Congressional seat. This is a
determination the factfinder would have to
make after carefully looking at the nature of
the debate forum. If it were determined that
AETN had created a limited public forum, then
Forbes would have a First Amendment right to
participate in the debate and could be
excluded only if AETN had a sufficient
government interest.

Ibid. Observing that "AETN . . . has not yet articulated any
principled reason for excluding Forbes," id. at 1430, we remanded
for further proceedings.

On remand, as we have previously noted, the District Court
tried the case to a jury. In accordance with our en banc opinion,
the Court correctly refused to submit to the jury any claim under
the Communications Act itself. Only the First Amendment claim was
submitted. But before the case went to the jury, the District
Court held, as a matter of law, that the debate in question was a
non-public forum. The District Court said: ". . . the Court has
ruled that the type of forum we are talking about in this case is
a non-public forum." Thus, the question whether the debate was a
non-public forum or a limited public forum was not submitted to the
factfinder. It was taken from the jury and decided by the Court.
The issue whether defendants' proffered justification -- that
Forbes was not a viable candidate -- would be legally sufficient if
the debate were a limited public forum was not reached. Instead,

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the District Court submitted to the jury only those discrete issues
of fact that it deemed relevant under its holding that the debate
was a non-public forum.

On special verdicts, the jury found, first, that the decision
to exclude Mr. Forbes was not the result of any political pressure
coming from outside the professional staff of AETN. (Under the
theory presented by defendants at the trial, this would have been
the only basis for a recovery by the plaintiff.) The jury found,
in addition, that the defendants did not exclude Mr. Forbes from
the debate because of disagreement with his opinions. In
accordance with these findings of fact and the Court's holding on
the public-forum issue, judgment was then entered for defendants.

II.

We first discuss three procedural arguments made by Mr. Forbes
as part of his attempt to upset the judgment of the District Court.
The first argument has to do with the special interrogatories put
to the jury. The first of these interrogatories read as follows:

Do you find from a preponderance of the
evidence that the defendants' decision to
exclude Mr. Forbes from the debate was
influenced in any way by political pressure
from anyone inside or outside of the Arkansas
Educational Television Network?

Trial transcript (Tr.) 475. The jury answered no to this question.
Id. at 502. Mr. Forbes's argument is that this interrogatory was
unnecessary to a finding that AETN violated his First Amendment
rights, and that submitting it to the jury was confusing. We do
not agree that use of the interrogatory was reversible error.

Whether to submit a case on special interrogatories, and, if

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so, how to phrase them, are matters committed, within broad limits,
to the discretion of the district courts. We have no reason to
believe that this jury was confused. We have great faith in
juries, and their desire and ability to follow instructions and
make distinctions among the various issues put before them. It may
be true that submission of this special interrogatory, strictly
speaking, was unnecessary. The First Amendment can be violated
even if no political pressure is exerted. For example, officials
of AETN, entirely apart from political pressure, might have decided
to exclude Mr. Forbes because of disagreement with his political
opinions. (As we have seen, the jury found that this did not
occur, but, at the time the case was submitted to the jury, this
was still a live issue.) It is very likely that the exertion of
political pressure, if it had occurred, would have been a good
theory of First Amendment violation, because such pressure, in all
probability, would have proceeded out of someone's disagreement
with or prejudice against Mr. Forbes's political positions. The
jury's negative answer to the interrogatory did not mean that the
case was over; it meant only that one possible theory of liability
had been rejected. The jury remained free to consider the other
interrogatories submitted to it, and we believe it did so
conscientiously.

The jury then went on to answer the second interrogatory,
asking whether the decision to exclude Mr. Forbes was based on
disagreement with his political viewpoint. The answer to this
question was no. We do not know what our answer would have been if
we had been sitting on the jury, but that is not important. There
was conflicting evidence on this issue, and it could have gone
either way. Making decisions of this kind is exactly what juries
are for. It was within the discretion of the District Court to
submit the issue to the jury in this form, and the evidence is
sufficient to support its negative answer.

Mr. Forbes also argues that it was prejudicial error to

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exclude evidence which, he contends, would have shown that the
husband of the producer of the debate for AETN was prejudiced
against him. We cannot agree that any error was committed in this
regard. If we assume that the husband did not like Mr. Forbes's
opinions, and if we further assume, and this would be something of
a stretch on the present record, that his wife knew this, it by no
means follows that the wife was in agreement. Spouses' political
opinions sometimes agree. They sometimes disagree. We do not
think any general inference can be drawn from the opinion of one
spouse to that of the other. The District Court did not abuse its
discretion in rejecting this evidence.1

III.

It remains to discuss what has emerged as the main issue --
whether the congressional debate staged by AETN was a limited-
purpose public forum, or a non-public forum, and, if it was the
former, whether AETN's reason for excluding Mr. Forbes can survive
scrutiny under the First Amendment. (We agree with the District
Court that the jury's finding that the exclusion was not viewpoint-
based is fatal to Mr. Forbes's case if the debate was a non-public
forum.) That this is the major issue in the case became clear at
oral argument. Counsel for defendants, citing Bose Corp. v.
Consumer's Union, 466 U.S. 485 (1984), argued that the issue of how
to characterize the forum was properly decided by the judge.
Certain First Amendment issues, he asserted, are for the Court, not
the jury, and are then subject to de novo review on appeal.

1
Mr. Forbes also argues that the District Court erred in
refusing to submit the issue of punitive damages to the jury. We
believe the District Court acted correctly in this regard. There
was no substantial evidence of malice or other outrageous conduct
on the part of these defendants. Therefore, there would have been
no basis for an award of punitive damages, and such an award, if
returned by the jury, would have to be set aside for lack of
sufficient evidence.

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 We are not sure that Bose holds that all First Amendment
issues of fact are to be decided by the court instead of the jury
in cases otherwise triable to a jury under the Seventh Amendment.
This is an action at law for damages, a timely demand for jury
trial was made, and a jury was properly empaneled. Certain issues
of historical fact -- for example, whether Forbes was excluded from
the debate because of hostility to his opinions -- are certainly
for the jury, assuming that the evidence was in sufficient conflict
to allow reasonable jurors to go either way. Thus, the issues
covered by the special interrogatories put to the jury in this case
were correctly treated as jury issues, and we do not understand
defendants to argue otherwise.

By contrast, the question of what exactly the forum was in
this case, whether it was a non-public forum or a limited public
forum, is a different sort of issue. It is a mixed question of law
and fact, as to which the answer is obtained by applying legal
principles to facts. We do not understand the historical facts --
for example, who set up the debate, who was invited to attend, who
was excluded, and the like -- to be in dispute. If defendants, by
citing Bose, are asserting that such issues are never to be
submitted to juries, we are not convinced. Bose has to do with the
reviewing or appellate function in First Amendment cases. It does
not, at least not in so many words, address the division of
functions between judge and jury at the trial level.

In the present case, this distinction, between the division of
functions at the trial level and the standard of review at the
appellate level, seems to us of no practical significance. Suppose
the district court had allowed the issue of how to characterize the
forum to go to the jury, and suppose the jury had decided it one
way or the other. The party losing this issue would surely have
filed a motion for judgment notwithstanding the verdict, now called
a motion for judgment as a matter of law, and the district court
would have ruled on the motion. In doing so, the district court

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would have gone through the same mental process engaged in by
appellate courts. It would have been exercising essentially a
reviewing function. And this Court, in turn, would have been bound
to apply the Bose approach on appeal.

The Supreme Court's opinion in Bose holds that appellate
courts must "conduct an independent review of the evidence on . . .
dispositive constitutional issue[s]" in First Amendment cases. 466
U.S. at 508. Bose was a bench-tried case, but the opinion clearly
indicates that the same appellate standard applies in cases tried
to juries:

. . . The rule of independent review assigns
to judges a constitutional responsibility that
cannot be delegated to the trier of fact,
whether the factfinding function be performed
in the particular case by a jury or by a trial
judge.

Id. at 501. In short, "First Amendment questions of
'constitutional fact' compel this Court's de novo review." Id. at
508-09 n.27. Our recent opinion in Families Achieving Independence
and Respect v. Nebraska Department of Social Services, _____ F.3d
_____, _____, 1996 WL 426147 *3 (8th Cir., July 31, 1996), reaches
the same conclusion: "[W]here . . . constitutional issues [in
First Amendment cases] present mixed questions of law and fact, our
review is de novo."

We have a complete record before us on the public-forum
question, and we have the holding of the District Court on that
issue. We now proceed to exercise our constitutional duty to
conduct an independent review.

As an initial matter, we must determine whether the forum at
issue is the television station, AETN, or the Third District
congressional debate. At oral argument and throughout its brief,

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AETN contends that the station is the relevant forum. Forbes, on
the other hand, contends that our analysis should focus on the
debate.

The choice between the two forums suggested is not a difficult
one. "In defining the forum we [] focus[] on the access sought by
the speaker." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S.
788, 801 (1985). If the speaker seeks general access to public
property, the forum encompasses that property. But if only limited
access is sought, we must take a "more tailored approach to
ascertain[] the perimeters of a forum within the confines of the
government property." Ibid.

Forbes sought access to the debate alone. The debate is a
particular program among the numerous programs broadcast by AETN
each day. Traditionally, when a speaker "seek[s] access to a
particular means of communication," it is that particularized forum
which becomes the focus of analysis. Ibid. In keeping with that
tradition, we conclude that the debate - the means of communication
to which Forbes seeks access - is the relevant forum in this case.

Having identified the forum, we now turn to the more difficult
question of determining its character. Forbes maintains that by
staging the debate, AETN created a limited public forum. This type
of forum has been defined as a forum "created by government
designation of a place or channel of communication for use by the
public at large for assembly and speech, for use by certain
speakers, or for the discussion of certain subjects." Id. at 802.
The Supreme Court has recognized the existence of a limited public
forum in a number of instances where the State "does not itself
speak or subsidize transmittal of a message it favors but instead
. . . encourage[s] a diversity of views from private speakers."
Rosenberger v. Rector & Visitors of Univ. of Va., 115 S. Ct. 2510,
2519 (1995). Examples of limited public forums include university
meeting facilities opened for use by registered student groups,

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Widmar v. Vincent, 454 U.S. 263 (1981), and municipal theaters
open to theater productions, Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546 (1975). See also Lehman v. City of Shaker
Heights, 418 U.S. 298 (1974) (advertising space on public bus held
to be a limited public forum for commercial advertising); Healy v.
James, 408 U.S. 169 (1972) (public college's recognition of student
political groups created a limited public forum).

A non-public forum, by contrast, is "[p]ublic property which
is not by tradition or designation a forum for public communication
. . .." Perry Educ. Assn. v. Perry Local Educators' Assn., 460
U.S. 37, 46 (1983). A non-public forum is not necessarily
transformed into a public or limited public forum even though the
State engages in a practice of "selective access," by "allow[ing]
some organizations . . . to use the facilities." Id. at 47.
Capitol Square Review and Advisory Bd. v. Pinette, 115 S. Ct. 2440,
2446 (1995) (forum is nonpublic when "reserved for specific
official uses"). In Perry, the Supreme Court held that a public
school's internal mail system was a non-public forum even though
officials had allowed some community organizations to use the
system. Perry, 460 U.S. at 47 (finding no evidence that "permission
ha[d] been granted as a matter of course to all," the Court
concluded that "selective access does not transform government
property into a public forum."). Similarly, in Cornelius, the
Supreme Court held that the Combined Federal Campaign (CFC), an
annual charitable-fundraising drive administered by the Office of
Personnel Management, was a non-public forum. As it did in Perry,
the Court reasoned that "selective access [to charities],
unsupported by evidence of a purposeful designation for public use,
[did] not create a public forum." Cornelius, 473 U.S. at 805.

There is no bright line or objective test for determining the
character of the forum. We can say without reservation, however,
that the forum in this case, the debate, is a limited public forum.
Just as the university in Widmar created a limited public forum by

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opening its facilities to registered student groups for expressive
speech, AETN, by staging the debate, opened its facilities to a
particular group -- candidates running for the Third District
Congressional seat. The debate may be readily distinguished from
the forums at issue in Cornelius and Perry. In Cornelius, it was
clear that the CFC was not created "for purposes of providing a
forum for expressive activity." Ibid. The expression made by
giving money to charity was merely incidental to the purpose for
which the forum was opened -- "to minimize the disruption to the
workplace that had resulted from unlimited ad hoc solicitation
activities by lessening the amount of expressive activity occurring
on federal property." Ibid. Likewise, the forum in Perry, the
school's internal mail system, was designed solely for expression
relating to school business. Access to the system was granted to
groups on an individual basis and was not "granted as a matter of
course" to any particular group. The debate staged by AETN, on the
other hand, was staged in order for the candidates to express their
views on campaign issues.

The debate was surely a place opened by the government for a
limited class of speakers. What was that class? Was it all
candidates for Congress legally qualified to appear on the ballot,
or was it simply the Republican and Democratic candidates? The
latter answer, which essentially is the position espoused by
defendants, is not supportable either as a matter of law or logic.
Surely government cannot, simply by its own ipse dixit, define a
class of speakers so as to exclude a person who would naturally be
expected to be a member of the class on no basis other than party
affiliation. It must be emphasized that we are dealing here with
political speech by legally qualified candidates, a subject matter
at the very core of the First Amendment, and that exclusion of one
such speaker has the effect of a prior restraint - it keeps his
views from the public on the occasion in question.

The real issue, we think, is the legal sufficiency of the

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reason given for the exclusion. If AETN had considered Mr. Forbes
a viable candidate, it would, by its own account, have included him
in the debate. There is nothing about being a Democrat or a
Republican, a priori, that is relevant here. Rather, AETN's point
is that Mr. Forbes, in the opinion of the network, had no chance to
win. It therefore decided that its viewers should not hear Mr.
Forbes's opinions as part of the debate involving the other
candidates qualified to appear on the ballot.

We do not think that AETN's opinion on such a debatable matter
as the political viability of a candidate for Congress more than
two months in advance of the election can be a sufficient basis for
narrowing the channels of public discourse. AETN itself
characterizes the criteria it used as follows: "While these
criteria can to some extent be considered as objective, ultimately
their use is essentially subjective." Brief for Appellees 30. In
a sense, the State of Arkansas had already, by statute, defined
political viability. Mr. Forbes had gathered enough signatures to
appear on the ballot. So far as the law was concerned, he had
equal status with the Republican nominee and the Democratic
nominee. Whether he was viable was, ultimately, a judgment to be
made by the people of the Third Congressional District, not by
officials of the government in charge of channels of communication.

We have no doubt that the decision as to political viability
is exactly the kind of journalistic judgment routinely made by
newspeople. We also believe that the judgment in this case was
made in good faith. But a crucial fact here is that the people
making this judgment were not ordinary journalists: they were
employees of government. The First Amendment exists to protect
individuals, not government. The question of political viability
is, indeed, so subjective, so arguable, so susceptible of variation
in individual opinion, as to provide no secure basis for the
exercise of governmental power consistent with the First Amendment.
Compare Families Achieving Independence and Respect v. Nebraska

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Department of Social Services, supra, _____ F.3d at _____, 1996 WL
426147 *3-4 (vague standard cannot justify exclusion even from a
non-public forum). If Mr. Forbes can be excluded today, a
Republican or a Democrat who is believed to have no chance of
success could be excluded tomorrow. It is worth noting that Mr.
Forbes himself received the most votes in the preferential primary
for the Republican nomination for Lieutenant Governor in 1990. (He
was defeated in a run-off primary.) To give just one more example,
in 1958, in the Second Congressional District, a write-in candidate
who equipped his supporters with stickers that could readily be
applied to the ballot defeated the incumbent Democratic Member of
Congress, despite the fact that he began his campaign very shortly
before the election. Political viability is a tricky concept. We
should leave it to the voters at the polls, and to the professional
judgment of nongovernmental journalists. A journalist employed by
the government is still a government employee.

In short, we hold that the reason given for excluding Mr.
Forbes (and we accept at face value defendants' proffered reason)
was not legally sufficient under the First Amendment. It was
neither compelling nor narrowly tailored. Mr. Forbes is entitled
to a judgment in his favor so declaring. The only issue remaining
to be decided is that of damages, whether nominal or compensatory.

The judgment of the District Court is reversed, and the cause
remanded for further proceedings consistent with this opinion. The
District Court is instructed to enter judgment for the plaintiff
Forbes and against the defendant Arkansas Educational Television
Commission, and, thereafter, to empanel a jury for the sole purpose
of determining the amount of actual damages sustained.

It is so ordered.

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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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