Judge orders MSNBC to let Kucinich debate

This is a terrible precedent:

A Nevada judge said Monday that Democratic presidential candidate Dennis Kucinich must be included in Tuesday's candidates' debate in Nevada.

Senior Clark County District Court Judge Charles Thompson said if Kucinich is excluded, he'll issue an injunction stopping the televised debate. ...

A lawyer for the network said MSNBC decided to go with the top three candidates after the Iowa and New Hampshire primaries.

The judge called it a matter of fairness and said Nevada voters will benefit if they hear from more than just Hillary Rodham Clinton, Barack Obama and John Edwards.

He might be right. Maybe it would be better, and "fairer," if Kucinich had been invited. But a judge has no business telling the news media whom to invite to their debates. MSNBC is appealing the state Supreme Court, as they should. If that appeal is denied or not heard in time, they should cancel the debate on principle. They can't allow their own journalistic decision-making to be hijacked like this.

P.S. Or they could just let Kucinich stand there, but not give him any time to answer questions. Would Judge Thompson issue an emergency injunction in the middle of the debate? Heh.

P.P.S. There were 42 candidates on the New Hampshire ballot, including such illustrious characters as Vermin Supreme, whose platform includes a "mandatory tooth brushing law," and Jack Shepard, who believes the Mossad had advance knowledge of the 9/11 attacks. Why didn't the judiciary in the Granite State force the media to include them all in the debates? Maybe next time around, they will! Where will it end? You have to draw the line somewhere, and there is no principled legal basis on which a judge can draw that line; it's an inherently subjective and political decision. It should be left to the debate organizers. Obviously. I can't decide if this is tragedy or farce.

UPDATE: Apparently Kucinich's argument is based in part on a breach-of-contract claim, i.e., that MSNBC breached a contract to have him on the debate (as it had previously invited him, and then un-invited him). I don't know whether that claim is actually meritorious, but if it is, then I have no problem -- or far less of a problem, anyway -- with the court ruling in Kucinich's favor, provided it's on that basis alone. It's only if the court is forcing MSNBC to include Kucinich on "fairness" or "public policy" grounds that I have a serious problem with it. Enforcing a private contract is another matter. (Although, specific performance is not usually awarded in contract cases; money damages are much more common. But how would you calculate damages in a case like this?)

Comments

[jlr]

Let's get real. Televised debates have been useful for nothing beyond sound bytes and political posturing for decades. Unless we're going to have a true debate a la Lincoln-Douglas in the 1850s and 1860s, all political "debates" have lost their purpose.

[yea]

i think the judge is well within his rights to make this ruling. when the media does stuff with elections its different than normal and the courts/government have a responsibility to keep an eye on things. its just like campaign spending limits and limits on ad time.

that being said, i think brandan's best point is that there are another 30 or so minor candidiates running in nevada and the line has to be drawn somewhere. this isnt like the ridiculous fox news debate where ron paul was out polling guiliani/thompson and was competitive in the prior iowa primary. kucinich has polled 1-2% and gotten similar results in nh and ia. so yea, the judge has the right to do this but i dont think this move really makes that much sense to me. still, i like kucinich, hes a good man and the country does only benefit from hearing his message.

jlr,

debates are a rare chance to see candidates think on their feet. i really liked the cnn debates right before new hampshire. i think debates should be more like that with direct interaction between candidates.

[dcl]

Yea, the judge actually has no right or power to do this. The courts simply have no jurisdiction in this matter and neither does the FCC. MSNBC is a cable channel as a cable channel it is not reliant on the FCC for a broadcast license. As it does not require a broadcast license it is not subject to any of FCC's guidelines, restrictions, or requirements - that simply is not a hook for the judge to be able to force action. MSNBC is a private company holding a privately sponsored debate with candidates of their choosing. The state simply has no power over it - it is a first amendment issue and the judge's ruling is blatantly contrary to the first amendment, the only existing way around the first amendment in regards to the news media are FCC licenses which use to be used as a method to strong arm networks into providing equal time and so forth. Though even that function has been pretty much eliminated.

[Joe Mama]

i think the judge is well within his rights to make this ruling.

The judge is within his rights to make this ruling, just as appellate courts are within their rights to overturn poor rulings like this one.

when the media does stuff with elections its different than normal and the courts/government have a responsibility to keep an eye on things. its just like campaign spending limits and limits on ad time.

I don't even know where to begin with that one . . .

[Angrier and Angrier]

Off-topic. Here's a little note for all you Bush defenders who say there is nothing wrong with the economy. Wholesale prices rose in 2007 by their highest level in 26 years... or since the Reagan Recession...which was very deep and pretty painful..

http://biz.yahoo.com/ap/080115/economy.html?.v=7

This further complicates what the Fed can and can't do regarding interest rates. Stagflation is a very real possibility.

[Angrier and Angrier]

"Federal Reserve Chairman Ben Bernanke last week sent a strong signal that the Fed is more worried at the moment about weak growth than inflation -- given a series of weaker-than-expected data in recent weeks."

This is bad news. Greenspan was an inflation hawk. The Fed has no business getting into economic stimulus with inflation on the rise.

[yea]

Well if you guys are right this will get overturned by an appellant court pretty soon. Also, someone explain to me why comedy central was having so many problems geting Colbert on that one primary ballet if they are exempt from all election laws? I remember readint that they were worried that if he was a candidate they might be not be able to air his show because it would be akin to giving a candidate free airtime. Maybe I don't understand all of this, and id appreciate an explanation.

Also are we sure this is a local judge? The article said it was a district judge but the writing could also make it seem like it was a nevada judge, im not sure either way.

Thanks for a real reply dcl. thanks for wasting space on the page joe mama. if you dont know where to begin, dont reply next time if you dont care to attempt to contribute and only want to shoot others down if they might be misinformed.

[B. Minich]

Kucinich is apparantly claiming a breach of contract in this one. In other words, MSNBC had agreed to have him on, and then backed out. If this is proved, than MSNBC made a foolish contract with Kucinich (since when do we contract with debate candidates? are we now afraid they won't come?), but I think should be forced to abide by that contract. Now, if there were dismissal terms that were MET by MSNBC, (in other words, if they stuck a viability clause that says that if Kucinich's support fell to x percent, they could exclude him), then of course, this changes it.

[Brendan]

yea, first of all, South Carolina's ballot-access laws have nothing to do with Comedy Central's FCC status. Colbert didn't make it on the ballot in S.C. because his application was rejected by the Democratic Executive Council in that state, and he decided he didn't want to pay the GOP's steep filing fee.

Now, maybe separate and apart from all that, Comedy Central was concerned about something - I don't know, didn't hear about it. But if so, it must have just been a concern about ethics, not FCC regulation, because dcl is right, the FCC does not have any jurisdiction over cable TV.

Well: one caveat. Maybe Comedy Central was concerned that a Colbert run while he's still got his show on Comedy Central would inspire Congress to expand the FCC's authority to cover Comedy Central. There have been rumbling about that in recent years, and maybe Comedy Central was worried that a Colbert run would be the tipping point. I doubt it, but it's possible.

(Such an assertion of authority would be plainly unconstitutional, IMHO, since the whole rationale for limiting free speech in the case of broadcast TV -- the inherently limited nature of the electromagnetic spectrum -- simply does not exist when we're talking about cable. However, the Supreme Court has recently upheld some "plainly unconstitutional" laws that violate free speech... cough cough, McCain-Feingold... so who knows?)

[Brendan]

Oh, and to answer your other question, the judge is a Clark County District Court Judge. So, yes, he's a "district judge," but not a federal district judge, which is probably what you were thinking. He's a trial (i.e., district) court judge in the state court system.

[Joe Mama]

thanks for wasting space on the page joe mama. if you dont know where to begin, dont reply next time if you dont care to attempt to contribute and only want to shoot others down if they might be misinformed.

How about you don't make the misinformed comment to begin with, that way you won't waste the time of others who clearly know more than you and need to correct your mistakes.

[anon]

I'd prefer to adopt all the Genarlow Wilson arguments regarding "fairness" and "public policy," then stick them in this debate.

[yea]

it looks like they are already appealing the ruling and trying to get an emergency hearing in the nevada supreme court. i wish i could see the actual opinion so i could really understand whats going on. if its a breach of contract theory then it doesnt really make sense to me for the judge to base his on opinion on whether the nevada voters will benefit with kucinich inclusion.

joe,

this isn't a formal debate pal. with the wide variety of stuff covered on this blog people are going to be commenting on topics they arnt too familiar with. more voices adds to the discussion. i explained why i thought what i did and someone else made an informative respond. thats how discussions happens.

notice how people actually responded to my post with real answsers that moved the discussion along, while all you've managed to do is attack other people anonymously on the internet and add zero to the discussion. i hope you find fulfillment in your life eventually cause you seem upset.

[Brian Foster]

Speaking of "correcting mistakes" --

While it may be true that the FCC has never asserted authority to regulate the content of cable broadcasts, I'm not so sure that the FCC "has no jurisdiction" to do so. The FCC was expressly granted jurisdiction to regulate all "interstate communication by wire," and MSNBC undoubtedly qualifies on that score. Cable system operators are subject to equal time requirements for any programming over which they have editorial control. And with NBC being the parent of MSNBC, it's not at all clear that NBC's license from the FCC is not implicated in its decisions regarding MSNBC's content, especially if a colorable claim can be made that NBC aired something on MSNBC precisely in an attempt to avoid FCC requirements that would apply to its over-the-air broadcasts.

Indeed, just thinking out loud as I type, it would seem quite plausible (although I don't think it would be correct) to argue that, just as the federal government needs to be able to regulate intrastate non-commercial activity because of its substantial effects on interstate commerce, so too does the federal government need to be able to regulate the content of cable television broadcasts, because of the substantial effect it would have on circumventing the public interest in equal time and free access to the candidates.

And while it's certainly true that Fox or CNN could solve the problem themselves by pledging to hold their own debates where the excluded candidates are included, they could just as easily decide not to -- and now you've got conscious parallelism among the cable networks, which gives rise to an inference of an anti-competitive agreement in violation of the antitrust laws.

Man, government regulation sucks, don't it?

[Joe Mama]

yea,

The fact that this is a blog and not a "formal debate" does not make misinformed opinions any more informed, and "more voices" adds to the discussion quantitatively, but not necessarily qualitatively. But I'm glad the subsequent comments has "moved the discussion along" for you.

And I appreciate your kind wishes about me finding fulfillment in my life, as unnecessary as those wishes might be, since you are as misinformed about my mood as you are about the law in this case.

[Brian Foster]

yea,

As best as I can tell, this was an oral ruling, with a written order to follow. But given that the judge has asked Kucinich's attorney to draft the order, it almost certainly will not be accompanied by an opinion that explains the judge's reasoning for his order.

So we're left to divine from reports of what the judge said during his ruling, which so far seems to have included both the unfairness to Kucinich in "changing the rules in the middle of the game," and the benefit to the public of having him included in the debate.

[Derek]

Kucinich had two counts in his complaint: breach of contract (i.e., NBC executives had told him and sent him an e-mail inviting him to the debates in January, then rescined that invitation), and "breach of duty under the federal communications act." The "fairness" element would exist under FCC § 315, where television stations have a duty "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance."

The entire (further relevant) text of the section states,

If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station

There's a federal statutory basis for the claim, and the judge did her best to interpret "public interest." You may not like it, but it's certainly not as ridiculous as the original post, or most of the comments, suggest.

As for "cable v. broadcasting," I think that presents a stronger case, but I wonder if NBC, as owner of MSNBC, has some sort of further obligation as a broadcasting station. Not sure on this point. The Clark County district court records don't provide the full basis for the opinion (yet).

[Brian Foster]

Derek,

Agreed that it's not as ridiculous as the original post or other comments have suggested, but I think your comment glosses over some important distinctions or questions - most notably, whether MSNBC is a "broadcasting station" to which the quoted section would even apply. The argument seems to be that it does not, but as I noted above, I'm not sure that the FCC lacks jurisdiction to make it so.

We agree that NBC's status may well complicate matters further.

Also, can you be more specific as to what "FCC sec. 315" is? Is that 47 U.S.C> 315, or something else? Finally, the quoted language is suspiciously close to the "Fairness Doctrine" which, AFAIK, has not been enforced in more than 20 years after an express FCC disavowal of the doctriine during the Reagan administration. Not sure what relevance that may have, other than to note the distinction between the Fairness and Equal Time doctrines, which probably bears on this case.

[Joe Mama]

"FCC sec. 315" is indeed 47 U.S.C. § 315, or the Communications Act of 1934 (as amended).