Traditional public forums are defined by the objective characteristics of the property, such as whether, by long tradition or by government fiat, the property has been devoted to assembly and debate. The government can exclude a speaker from a traditional public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Designated public forums, in contrast, are created by purposeful governmental action. The government does not create a designated public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse.
The Arkansas Educational Television Commission (AETC) is an Arkansas state agency owning and operating a network of noncommercial television stations. In 1992, AETC's staff planned a televised debate among candidates for Arkansas' Third Congressional District. Because of time constraints, the staff decided to limit participation in the debate to the major party candidates or any other candidate who had strong popular support. An independent candidate, Forbes, who was certified as qualified to appear on the ballot for the seat in question requested permission to participate in the debate. AETC's executive director, in denying the request, asserted that AETC had made a bona fide journalistic judgment that the viewers would be best served by limiting the debate to the two major-party candidates who had already been invited. In a suit filed against AETC in the District Court, Forbes claimed, among other matters, that he was entitled to participate in the debate under the Federal Constitution's First Amendment and sought injunctive and declaratory relief as well as damages. The District Court dismissed the complaint, and the debate took place without the independent candidate's participation. The United States Court of Appeals, in reversing the District Court's judgment in pertinent part, concluded that the First Amendment claim was sufficient to survive a motion for dismissal. It held that AETC was required to have a legitimate reason to exclude Forbes strong enough to survive First Amendment scrutiny. The Court of Appeals remanded the case for further proceedings. On remand, the District Court determined that the debate was a nonpublic forum. The jury found that AETC's decision to exclude the independent candidate had not been influenced by political pressure or disagreement with his views, and judgment was entered for AETC. The Court of Appeals, in reversing, expressed the view that the debate was a public forum and that AETC's assessment of the independent candidate's "political viability" was not a compelling or narrowly tailored reason for excluding him from the debate.
Did the Arkansas Educational Television Commission violate Forbes’ First Amendment Rights?
The Supreme Court held that the debate was a nonpublic forum, from which Arkansas Educational Television Commission could exclude Forbes in the reasonable, viewpoint-neutral exercise of its journalistic discretion. Additionally, Forbes was excluded from the political debate not in an attempt to manipulate the political process, but because he had generated no appreciable public interest. Thus, the Court reversed the grant of summary judgment in favor of Forbes because exclusion from a nonpublic forum was based on Forbes’ status rather than his views was permissible.