Joseph F. Cavanaugh III, Esq.

... The Supreme Court of the United States, however, has held that the scope of an individual's right of access to government property for speech activity depends on the nature of the forum in which the activity occurs. ... Concluding that the public broadcast of a political debate by a stateowned television broadcaster created a nonpublic forum, the Court held that station employees could exercise reasonable journalistic discretion to deny public access in a viewpoint-neutral manner. ... Forbes filed suit in the United States District Court for the Western District of Arkansas, asserting that AETC's rejection of his request to participate in the debate was a violation of his First Amendment right to free speech. ... In Arkansas Educational Television Commission v. Forbes, the Supreme Court of United States announced that governmental restrictions on a candidate's right of access to state-broadcast political debates are subject to the lower level of scrutiny applicable to nonpublic fora. ... The Court also reaffirmed the principle that government creates nonpublic fora when it grants selective access to public property, implicitly authorizing government to engage in viewpoint-neutral content discrimination to advance the property's intended use. The Court reasoned that the AETC debate constituted a nonpublic forum because AETC granted selective access to candidates meeting its criteria.

TEXT:

The First Amendment to the Constitution of the United States guarantees freedom of speech to the public. ¹ The Supreme Court of the United States, however, has held that the scope of an individual's right of access to government property for speech activity depends on the nature of the forum in which the activity occurs. ² In Arkansas Educational Television Commission v. Forbes, ³ the Supreme Court considered whether state sponsorship of a political debate broadcasted on public television created a type of forum that mandated equal access for all ballot-certified political candidates seeking participation in the debate. ⁴ Concluding that the public broadcast of a political debate by a state-owned television broadcaster created a nonpublic forum, the Court held that station employees could exercise reasonable journalistic discretion to deny public access in a viewpoint-neutral manner. ⁵

Arkansas Educational Television Commission (AETC), is a state agency that owns and operates five public television stations in the State of Arkansas. ⁶ In 1992, AETC invited two major party election candidates for Arkansas' Third Congressional District to participate in a planned state-broadcast political debate. ⁷ Based on programming time constraints, AETC limited participation in the debate to major party candidates or candidates who enjoyed "strong popular support." ⁸ After AETC sent invitations to candidates who met its criteria, Ralph Forbes, a newly certified candidate for the Congressional seat, requested that AETC include him in the planned debate. ⁹ AETC denied Forbes' request to participate, deeming him an independent candidate who failed to generate the required level of public support. ¹⁰

Forbes filed suit in the United States District Court for the Western District of Arkansas, asserting that AETC's rejection of his request to participate in the debate was a violation of his First Amendment right to free speech. ¹¹ The district court held that the debate was a nonpublic forum and, applying a reasonableness standard, ruled in favor of AETC. ¹² On appeal, the United States Court of Appeals for the Eighth Circuit reversed the trial court, holding that state sponsorship of a televised political debate creates a limited public forum and, therefore, decisions to deny access must survive analysis under strict scrutiny. ¹³ Under this heightened standard, the appellate court found that AETC's rationale for excluding Forbes from the debate was not sufficient to meet the dual requirements of strict scrutiny analysis: a compelling governmental interest and narrowly tailored means. ¹⁴ The Supreme Court reversed the Eighth Circuit, holding that AETC's exclusion of Forbes was subject to the lower level of scrutiny applicable to nonpublic fora. ¹⁵ Under this level of review, the Court held that AETC's decision was constitutional because it was a reasonable, viewpoint-neutral exercise of journalistic discretion. ¹⁶

The First Amendment to the Constitution prohibits the government from abridging the fundamental right to free speech. ¹⁷ Free speech jurisprudence has vigorously affirmed the belief that freedom of expression, most notably on political matters, is the essence of democratic government. ¹⁸ To protect this fundamental freedom, courts engage in "close judicial scrutiny" of governmental restrictions abridging First Amendment rights. ¹⁹ Nevertheless, the Supreme Court has upheld a framework of permissible limitations on an individual's right of access to public property for expressive purposes. ²⁰ Under the public fora doctrine, the existence of a First Amendment right of access to government-owned property and the standard of review applicable to governmental limits on such right hinge on the public or nonpublic character of the property. ²¹

The public fora doctrine recognizes three general categories of government-owned property. ²² Traditional public fora exist where, through government acquiescence or long standing tradition, government property is dedicated to free speech. ²³ In contrast, government creates a dedicated or limited public forum when it purposely opens government-owned property for speech activity. ²⁴ Finally, non-public fora arise when government grants specific groups or individuals selective access to government-owned property. ²⁵

The Court's public fora precedent establishes that affirmative governmental action that opens nonpublic property to all or a defined part of the public for expressive purposes alters the character of the property, creating limited rights of public access. ²⁶ When governmental action creates a First Amendment right of access that would otherwise not flow from the nature of the property, however, the government may define the purpose of the forum and limit access accordingly. ²⁷ When governmental action creates a limited or dedicated public forum, the Court will uphold content-based access barriers erected to preserve the intended purpose of the forum, provided the barriers do not discriminate solely on an individual's viewpoint. ²⁸ Strict scrutiny, however, is applicable when the government denies access to individuals who qualify as members of the articulated class. ²⁹ In contrast, when selective governmental action creates a nonpublic forum, the Court will uphold governmental access restrictions if the restrictions are reasonable considering the forum's purpose, and are not a governmental attempt to suppress disfavored viewpoints. ³⁰

Despite the public character of our nation's broadcast frequencies, the Supreme Court has declined to establish broad rights of public access to federally licensed broadcast facilities. ³¹ Instead, the Court has reasoned that inherent limitations of the medium as well as the imposition of certain affirmative duties on the industry, support providing broadcasters with broad journalistic discretion. ³² Notwithstanding the governmental action involved in public broadcasting, public broadcasters have historically enjoyed the same level of journalistic discretion afforded to private broadcasters. ³³ In numerous First Amendment cases involving governmental actors, however, censorship concerns have led the Court to strike down governmental discretion exercised in a manner that restricts access to public property absent clearly defined objective criteria for exercising that discretion, particularly where political speech was at issue. ³⁴

In Arkansas Educational Television Commission v. Forbes, the Supreme Court of United States announced that governmental restrictions on a candidate's right of access to state-broadcast political debates are subject to the lower level of scrutiny applicable to nonpublic fora. ³⁵ Acknowledging that state sponsorship of a televised political debate mandates application of public fora doctrine, the Court reasoned that "mechanical" application of the doctrine would inappropriately limit the journalistic discretion state broadcasters need to accomplish their mission and fulfill their public duties. ³⁶ Moreover, the Court reasoned that broadcasters are particularly susceptible to censorship claims because of the nature of discretionary power and should, therefore, retain broad discretionary authority in selecting broadcast programming. ³⁷

The Court also reaffirmed the principle that government creates nonpublic fora when it grants selective access to public property, implicitly authorizing government to engage in viewpoint-neutral content discrimination to advance the property's intended use. ³⁸ The Court reasoned that the AETC debate constituted a nonpublic forum because AETC granted selective access to candidates meeting its criteria. ³⁹ In addition, the Court found the criteria viewpoint-neutral because they were based on the level of public support for the candidate, party affiliation, or both, but not the candidate's viewpoint. ⁴⁰ The Court reasoned that affirming the government's right to selectively grant access to public property actually encourages First Amendment Speech that might otherwise be foreclosed under broad access requirements. ⁴¹

The failure of the Forbes court to require objective standards for governmental actions regulating candidate access to publicly televised debates will likely increase the potential for state censorship of political expression. ⁴² By focusing on the discretion all broadcasters require, the Court failed to adequately consider the fundamental distinction between government and private actors. ⁴³ The Court, instead, relied on precedent addressing private broadcasting issues and then misapplied it in the context of public broadcasting. ⁴⁴ Moreover, the Court seemed to forget the fundamental role political debate plays in ensuring that democratic government will survive and flourish. ⁴⁵ Ironically, the Court's failure to demand clearly articulated standards to support governmental interference with free political debate undermines the very freedom the First Amendment is most directed towards preserving. ⁴⁶

The Court could have provided public broadcasters with needed discretion while maintaining the integrity of First Amendment jurisprudence. ⁴⁷ Requiring clearly articulated standards for the exercise of governmental discretion would not impose a crippling burden on public broadcasters. ⁴⁸ Such requirements would impose only a slight burden on public broadcasters, but would provide significant assurance that the right to free speech is free from government censorship. ⁴⁹ The Court, unfortunately, sanctions the type of whimsical government discretion that historically has raised censorship concerns in numerous First Amendment cases. ⁵⁰

In addition, the Court should have declared the state-sponsored debate a limited public forum under the public fora doctrine. ⁵¹ Logic dictates that the natural class of individuals for whom a political debate is orchestrated is the list of lawfully qualified candidates for the office. ⁵² The Court should have reached the conclusion that the AETC debate was a limited public forum open to all legally qualified candidates in Arkansas' Third Congressional District. ⁵³ The Court, therefore, should have invoked strict scrutiny to strike down the arbitrary governmental exclusion of a ballot-certified candidate. ⁵⁴

The First Amendment is dedicated to ensuring the public's freedom from governmental abridgment of its fundamental right to political expression. ⁵⁵ In its dicta, the Court acknowledges that televised political debates provide candidates with a uniquely powerful conduit for disseminating political messages. Moreover, the Court recognizes that televised debates are the primary source of election information for most Americans. Yet, under the public fora doctrine, the Court concludes that states may selectively exclude ballot-certified candidates for public office from participating in state-broadcast political debates based solely on subjective assessments about the candidates' political viability. By allowing public television stations to arbitrarily decide which political candidates have access to the powerful television medium, the Court opens a door for those governmental actors who may seek to influence the electoral process by granting selective access to favored candidates. Unfortunately, the Court's deference to the discretionary needs of the public broadcasting industry fails to adequately consider both the fundamental importance of political speech in a democratic society and modern American society's overwhelming reliance on televised debates in making electoral decisions. The Court's failure to require objective standards to support governmental restrictions on access to publicly televised debates falls far short of the heightened concern the Court has exhibited when governmental actions threaten the inherent societal benefits the Framers sought to protect by guaranteeing the fundamental right to free political speech.

FOOTNOTES:

n1. U.S. Const. amend. I. The First Amendment, in pertinent part, states: "Congress shall make no law ... abridging the freedom of speech ... ." Id. The First Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Thornhill v. Alabama, 310 U.S. 88, 95 (1940) (affirming freedom of speech among fundamental rights protected from state abridgment through Fourteenth Amendment). The Thornhill Court observed that the individuals who fought for and won independence for the United States placed confidence in the power of free speech to uncover political and economic truths. See id. The Court reasoned that evil stemming from "noxious doctrines" is averted through unabridged free speech aimed at exposing falsehoods. See id.; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (noting Fourteenth Amendment prohibits states from interfering with First Amendment rights); Gitlow v. New York, 268 U.S. 652, 666 (1925) (declaring First Amendment made applicable to states through Fourteenth Amendment's Due Process Clause). But see Barron v. Mayor of Baltimore, 32 U.S. 243, 247 (1833) (holding Fifth Amendment not applicable to states). The Court reasoned that the Constitution created the federal government, therefore the powers and limitations contained in the document apply only to the government created by the document. See id.; cf. William P. Gray, Jr., "We the People" or "We the Judges": A Reply to Robert R. Baugh's Response, 49 Ala. L. Rev. 607, 608-09 (1998) (challenging applicability of Bill of Rights to states). The author argues that early Supreme Court jurisprudence affirmed the Framer's intention that the Bill of Rights should apply only to the federal government. See Gray, supra, at 609-10.

n2. See, e.g., Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996) (observing government may directly regulate speech to address certain problems); United States v. Kokinda, 497 U.S. 720, 736-37 (1990) (upholding government restriction on right of access to postal property); Cantwell v. Connecticut, 310 U.S. 296, 305-07 (1940) (acknowledging constitutionality of non-discriminatory time, place, and manner restrictions on speech activity).

n3. 118 S. Ct. 1633 (1998).

n4. See id. at 1638-39. The Court announced that state-sponsored candidate debates are a rare exception to the general rule excluding public broadcasting from forum doctrine analysis. See id. at 1640. The Court distinguished the Arkansas Educational Television Commission debate from other programming because it was a forum created for political speech and because of the importance of candidate debates in the electoral process. See id.

n5. See id. at 1641 (rejecting Forbes' claim that debate constituted public forum).

n6. See id. at 1637 (setting forth organizational structure of Arkansas public television and describing executive positions). AETC operated five public television stations comprising the Arkansas Educational Television Network. See id. Under Arkansas law, the Governor appoints AETC members to an eight year term during which they may not hold any other state or federal office except teaching positions. See id.; see also Arkansas Code 6-3-102(A)(3) (Supp. 1997). In addition, to avoid potential financial and political pressure aimed at influencing AETC programming decisions, AETC adopted the Statement of Principles of Editorial Integrity in Public Broadcasting, which established ethical standards in the public broadcasting industry. See Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1637 (1998).

n7. Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497, 500 (8th Cir. 1996), rev'd, 118 S. Ct. 1633 (1998). AETC sent invitations to one Democratic and one Republican candidate for Arkansas' Third Congressional seat. See id. On October 22, 1992, AETC broadcasted the debate on Arkansas' public television without Forbes. See Forbes v. Arkansas Educ. Television Communication Network Found., 22 F.3d 1423, 1426 (8th Cir. 1994).

n8. 118 S. Ct. at 1637 (1998) (quoting, Simmons Aff. P 5). AETC concluded that the debate should consist of a 53 minute question and answer session during each one hour time slot. See id. Forbes made his request for inclusion in the debate in a letter to AETC dated August 24, 1992. See id. at 1638.

n9. See id. at 1638. The Court noted that Forbes obtained the 2,000 signatures required under Arkansas Code 7-7-103(c)(1) for certification as a ballot-qualified candidate for the congressional seat. See id. Forbes had run for state-wide public office in two prior elections, receiving the Republican nomination for Lieutenant Governor of Arkansas in 1986 and 1990. See 118 S. Ct. at 1644-45 (Stevens, J., dissenting) (summarizing Forbes' election record in previous political races in Arkansas).

n10. See 118 S. Ct. at 1638. AETC informed Forbes that it excluded him because it believed the public would benefit most from a debate limited to the two major party candidates. See id.

n11. See Forbes v. Arkansas Educ. Television Communication Network Found., 22 F.3d 1423, 1426 (8th Cir. 1994). Forbes initially asserted three separate claims in his complaint, including a First Amendment claim. See id. at 1427. The district court dismissed Forbes' action because he failed to state a claim for which relief could be granted. See id. Forbes appealed the district court ruling to the United States Court of Appeals for the Eighth Circuit Court, which affirmed the district court's dismissal of two statutory claims brought under 47 U.S.C. 315. See id. at 1430. The Eighth Circuit, however, remanded the First Amendment issue. See id. The Eighth Circuit reasoned that because the defendant had not filed an answer to Forbes' complaint, there was no way to determine whether the decision to exclude Forbes rested on rational viewpoint-neutral grounds sufficient to survive constitutional scrutiny. See id. On remand, the district court ruled that the state-sponsored debate, as a matter of law, constituted a nonpublic forum, and ruled against Forbes on his First Amendment claim. See Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497, 499 (8th Cir. 1996), rev'd, 118 S. Ct. 1633 (1998). Forbes returned to the Eighth Circuit, challenging the adverse district court ruling. See id. at 500. The Eighth Circuit reversed the district court, holding that a government-owned television station may not constitutionally exclude a ballot-certified candidate from a publicly sponsored debate. See id.

n12. See id. at 500-01 (noting nature of fora at issue never submitted to fact-finder). In reviewing the district court verdict against Forbes, the Eighth Circuit observed that the jury was never allowed to consider whether the nature and character of the AETC debate created a nonpublic or limited public forum. See id. Instead, the district court ruled as a matter of law that the debate was a nonpublic forum. See id.

n13. See id. at 504 (concluding state-broadcast political debate constitutes limited public fora). The court acknowledged that no "bright line" tests exist for defining the nature of a forum, but held that the debate was a limited public forum opened to all candidates for Arkansas' Third Congressional seat. See id.

n14. See Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497, 504-05 (8th Cir. 1996) (describing AETC's rational for excluding Forbes as primary issue in case), rev'd, 118 S. Ct. 1633 (1998). The court found Forbes' viability as a candidate a debatable issue, particularly where the election was scheduled to take place more than two months after the televised debate. See id. The court reasoned that the voters in Arkansas' Third Congressional District should decide the question of Forbes' political viability. See id. at 504-05.

n15. See 118 S. Ct. at 1644. The Supreme Court granted certiorari to resolve a conflict between the Eighth and the Eleventh Circuits, and because of the "manifest importance" of the case. See id. at 1638.

n16. See id. at 1637. The Court noted that both parties agreed the debate was not a traditional public forum under established fora precedent. See id. at 1641.

n17. See U.S. Const. amend. I; supra note 1 (quoting relevant text and articulating scope of First Amendment); see also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 396 (1969) (affirming constitutionality of FCC's "fairness doctrine" mandating broadcasters provide political candidates equal access in certain circumstances); Garrison v. Louisiana, 379 U.S. 64, 73 (1964) (observing First Amendment protects even false speech where speaker believed it was true). The Federal Communication Commission's (FCC) fairness doctrine mandates that all licensed broadcasters provide election candidates seeking the same political office with equal access when air time is given to one candidate, unless the air time is the result of news coverage. See 47 U.S.C. 315(a) (1994). The FCC promulgated the fairness doctrine to ensure fairness among competing views on public issues. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375-78 (1969) (summarizing history of FCC's fairness doctrine).

n18. See, e.g., CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981) (stipulating vital importance political debates play in ensuring informed voter decision making); Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (noting First Amendment protection most critical for speech uttered in pursuit of political office); New York Times Co. v. Sullivan, 376 U.S. 254, 268-69 (1964) (declaring political expression essential to ensuring that government responds to public will). The Supreme Court has declared that the United States is pledged to the notion that public debate on societal issues should be "uninhibited, robust, and wide open ... ." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The Court has also recognized that the opportunity to make choices after evaluating the qualifications and political ideas of candidates for public office is central to our governmental system. See CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981). In addition, the Court acknowledged that televised debates provide Americans with a vital means of directly comparing candidates in a setting that is free from political bias. See id.

n19. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996) (reiterating Court's commitment to protection of free speech). The Court noted that while First Amendment jurisprudence has adapted to new demands, the Court has not wavered from its commitment to protect free speech. See id. at 740-41.

n20. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992) (enunciating traditional forum-based approach to government right of access restrictions). The Court stressed that the level of scrutiny applied to governmental access restrictions to public property varies under the public fora doctrine. See id. at 678. Additionally, the physical location of public property may have some bearing on its classification under the public fora doctrine. See id. at 680; see also Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (explicating established framework for government restrictions on free speech); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44-46 (1983) (announcing permissible limits on right of access to three recognized categories of government property).

n21. See United States v. Kokinda, 497 U.S. 720, 725 (1990) (reiterating First Amendment jurisprudence requires application of appropriate scrutiny based on nature of fora); see also Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800-02 (1985) (adding additional inquiry of nature of access sought to determine forum at issue). The Court, in Cornelius, observed that public fora analysis, in addition to focusing on the public property at issue, demands consideration of the nature of the access sought. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 801 (1985). The Court reasoned that where limited access is sought, the forum at issue encompasses the means of communication through which the speaker attempts to speak. See id. The Court determined that the forum at issue was a charity fundraising initiative directed at government employees because it constituted the means of communication to which access was sought. See id.

n22. See supra note 20 and accompanying text (explicating existing public fora precedent); infra notes 23-25 and accompanying text (outlining three types of fora).

n23. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (defining traditional public fora characteristics). The Perry Court described traditional public fora as places with a long history of government sanctioned speech activity, such as streets and public parks. See id. Access restrictions to public fora warrant strict scrutiny if they discriminate based on the content of the speech. See id. Governmental exclusion of a speaker from public fora is constitutional if it serves a compelling governmental interest and is narrowly tailored. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (reiterating traditional strict scrutiny requirements for regulation of speech in traditional public fora).

n24. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (explaining government action required for creation of designated or limited public fora). Once government creates a designated or limited public fora, the exclusion of a speaker identifiable as within the class of individuals generally granted access is subject to strict scrutiny. See id.

n25. See Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 46-48 (1983) (holding access to school mail system did not create public forum). The Court held that selective access to government owned property, granted to specific groups or individuals, did not create a general right of access. See id. Therefore, the character of the government-owned property remained non-public. See id.

n26. See Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (noting where state policy accommodates certain groups public forum exists). The Widmar Court struck down a state university's exclusion of a student group from access to university facilities under the First Amendment because the restriction was not content-neutral. See id. at 277. The Court declined to accept the university's assertion that the separation of church and state is a compelling interest sufficient to deny access to a religious group. See id. at 271.

n27. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (declaring government may permissibly limit access to property opened to public).

n28. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983) (noting states may limit fora for specific purposes). The Court stated that reservation of a forum for limited purposes is constitutional if the limits are reasonable and viewpoint-neutral. See id.; see also Chandler v. Georgia Pub. Telecomm. Comm'n, 917 F.2d 486, 489 (11th Cir. 1990) (holding content-based discrimination constitutional if reasonable and viewpoint-neutral); Linda L. Berger, Note, Government-Owned Media: The Government as Speaker and Censor, 35 Case W. Res. L. Rev. 707, 712 (1985) (noting government may discriminate based on content in certain circumstances).

n29. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (declaring upon establishment of limited public forum state must adhere to its self-imposed boundaries). The Rosenberger Court held that while a state may, out of necessity, limit access to public fora, it may not do so based on viewpoint discrimination or where the distinction does not serve to reasonably advance the forum's purpose. See id. at 829-30. The Court, therefore, stressed the importance of the distinction between permissible content discrimination and viewpoint discrimination, which is presumptively invalid if aimed at the speech comporting with the forum's defined purpose. See id. at 831.

n30. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992) (holding airport terminal as nonpublic forum subjecting government decision to restrict speech to reasonableness standard). Under the reasonableness standard, the Court noted that the government is not required to pursue the most reasonable restriction, but that the ultimate choice must be reasonable. See id.; see also United States v. Kokinda, 497 U.S. 720, 726-27, 736 (1990) (affirming viewpoint-neutral reasonableness standard for nonpublic fora). In Kokinda, the Court held that a sidewalk located on the grounds of a United States Post Office was not a public forum, despite established practice of allowing public speech on sidewalks, because it did not have the same characteristics as public sidewalks historically used for public speech. See United States v. Kokinda, 497 U.S. 720, 727 (1990). The Court, therefore, concluded that the government property was nonpublic and restrictions on the public's right of access were subject only to the viewpoint-neutral reasonableness standard. See id. at 730; see also Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 46-47 (1983) (noting that states may constitutionally limit forum for specific purposes). The Court stated that reservation of a forum for limited purposes is permissible under the First Amendment as long as the limits are reasonable and viewpoint-neutral. See Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 46-47 (1983); see also Berger, supra note 28, at 723 & n.137 (providing comparison of public and quasi-public fora under Supreme Court precedent). The author notes that the government has free reign to deny expression and discriminate based on content in a nonpublic forum so long as action is reasonable as compared to the forum's purpose. See Berger, supra note 28, at 723 & n.137.

n31. See CBS, Inc. v. Democratic Nat'l Comm. 412 U.S. 94, 126-27 (1973) (declining to establish mandated right of access to broadcast medium); see also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-89 (1969) (recognizing access limits must exist to ensure productive usage of broadcasting medium). The Court acknowledged that broadcasting is subject to First Amendment analysis, but reasoned that adjustments to First Amendment standards were appropriate in light of the characteristics of the media. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-89 (1969); cf. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (applying intermediate scrutiny to content-neutral, must-carry provisions for cable television broadcasters). The Turner court reasoned that a higher level of First Amendment scrutiny should apply to cable operators than to broadcasters because cable does not suffer from the inherent limitations of the broadcast medium; namely, the availability of spectra and signal interference. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 639 (1994).

n32. See FCC v. League of Women Voters, 468 U.S. 364, 377-78 (1984) (reaffirming constitutionality of broad journalistic discretion for broadcast editors). The Court observed that public interest is advanced through the editorial choices of broadcasters. See id.; see also CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 121 (1973) (observing mandatory right of access to broadcast medium would contravene journalistic independence). The CBS court addressed the right of access to private broadcasting facilities while acknowledging that public broadcasting may require a different standard under First Amendment analysis in light of the state action involved. See CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 121 (1973); cf. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 259 (1974) (White, J., concurring) (noting different standards applicable to newspapers under First Amendment).

n33. See FCC v. League of Women Voters, 468 U.S. 364, 367-68 (1984) (discussing history of public television in United States). The Court noted that Congress passed the Public Broadcasting Amendments Act of 1967 to promote an alternative to commercial broadcasting. See id. at 366. The Court further noted that under both the Radio Act of 1927 and the Communications Act of 1934, Congress subjected both public and commercial broadcasters to the same licensing requirements. See id. at 367.

n34. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131-33 (1992) (striking down restrictive parade ordinance because county administrator retained too much discretion). The Court reasoned that where the scope of governmental discretion provides the latitude to make subjective decisions in deciding whether to grant or deny access to public property, the risk of censorship renders the discretion unconstitutional. See id. at 131. Additionally, the Court held that a county ordinance providing county officials with "unbridled discretion" to deny permits for the right to use public property violated the First Amendment. See id. at 133. The Court noted that the decision to grant or deny access to public property was not based on any articulated or objective standards, and thus created too great a risk of government censorship. See id. at 133-34; see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969) (holding prior restraint of speech must be supported by definite standards). The Court observed that compliance with a parade ordinance would have required "extraordinary clairvoyance" and therefore the ordinance impermissibly restricted First Amendment right to free speech. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 156-59 (1969).

n35. See Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1644 (1998) (affirming AETC decision under rationality review).

n36. See id. at 1639 (distinguishing nature of streets and parks from public television stations). The Court observed that Congress has explicitly rejected the notion that broadcasting facilities must grant access to all individuals wishing to make statements about public issues. See id. But see Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996) (questioning application of public fora doctrine to novel contexts).

n37. See 118 S. Ct. at 1633 (recognizing vulnerability of programming decisions to censorship attack). The Court acknowledged that even sound decisions based on journalistic discretion are easily characterized as viewpoint-based. See id.

n38. See id. at 1642. The Court speculated that if government was faced with facilitating broad rights of equal access to property it chooses to open for legitimate expressive purposes, it may choose instead to bar all expression on the property. See id. at 1643.

n39. See id. at 1642-43 (noting AETC debate did not provide open microphone for all candidates). But see id. at 1646 (Stevens, J., dissenting) (observing state broadcasters raise special concerns when conducting political debates).

n40. See id. at 1643-44 (concluding Forbes' views did not factor into AETC's decision). The Court found Forbes' censorship assertion flawed, reasoning that unconventional political views may generate significant support if espoused by a charismatic candidate or conveyed through a well organized campaign. See id.

n41. See id. at 1643. The Court reasoned that the threat of First Amendment liability may force public television broadcasters to abandon debate programming, undermining the educational value of public television. See id.

n42. See 118 S. Ct. at 1645 (Stevens, J., dissenting) (denouncing scope of discretion afforded to AETC officials). But see supra note 38 and accompanying text (reasoning broad access requirements may lead to less political speech).

n43. See 118 S. Ct. at 1646 (Stevens, J., dissenting) (stressing Congress and Supreme Court have history of acknowledging critical importance of distinction between public and private actions); see also Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497, 505 (8th Cir. 1996) (observing First Amendment made to protect citizens not governmental entities), rev'd, 118 S. Ct. 1633 (1998). The court acknowledged that newspeople routinely decide the question of political viability and that AETC made a "good faith" decision with respect to candidate Forbes. See Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497, 505 (8th Cir. 1996), rev'd, 118 S. Ct. 1633 (1998). The court, however, stressed that the AETC newspeople were not ordinary journalists but government employees. See id. But see 118 S. Ct. at 1639 (observing public and private broadcasters are required to exercise substantial editorial discretion in programming decisions).

n44. See