Forbes v. Arkansas Educational Television Com'n

• Decision Date: 21 August 1996
• Docket Number: No. 95-2722WA,95-2722WA
• Citation: 93 F.3d 497
• Parties: 24 Media L. Rep. 2295 Ralph P. FORBES, and The People, Appellants, 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 her Official Capacity as Executive Director; Victor Fleming, in his Official 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 497

93 F.3d 497

24 Media L. Rep. 2295

Ralph P. FORBES, and The People, Appellants, 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 her Official Capacity as Executive Director; Victor Fleming, in his Official 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.

No. 95-2722WA.

United States Court of Appeals,

Eighth Circuit.

Submitted April 11, 1996.

Decided Aug. 21, 1996.

J. Fred Hart, Jr., Little Rock, Arkansas, argued (Charles Suphan, Little Rock, Arkansas, on the brief), for appellants.

Richard D. Marks, Washington, DC, argued (Thomas S. Gay, Attorney General's Office, Little Rock, Arkansas, on the brief), for appellees.

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 Communication Network Foundation, 22 F.3d 1423 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 500, 130 L.Ed.2d 409 (1994) (petition of AETN), --- U.S. ----, 115 S.Ct. 1962, 131 L.Ed.2d 853 (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 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.

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 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, 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 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...