Debates, free speech and forced association

third_party_debate_2012_10_24In a ruling that came as a surprise to very few, US District Judge Rosemary Collyer dismissed the antitrust case filed by Gary Johnson & Jill Stein against the Commission on Presidential Debates. The complaint set forth four counts: Count I & Count II claim violations of Section 1 & 2 of the Sherman Antitrust Act; “Count III [asserts] violation[s] of First Amendment rights of free speech and association; and Count IV [claims] intentional interference with prospective economic advantage and relations.”
In dismissing the case Collyer writes, “because Plaintiffs have no standing and because antitrust laws govern commercial markets and not political activity, those claims fail as a matter of well-established law. Plaintiffs also allege violations of the First Amendment, but those claims must be dismissed because the First Amendment guarantees freedom from government infringement and Defendants here are private parties. Finally, Plaintiffs fail to allege facts that could support a claim for intentional interference with prospective business advantage.”
These sentences state several important things, namely that the Commission on Presidential Debates is in fact involved in “political activity.” In reviewing the decision, Tom Knapp writes, “the free advertising they’re giving away to the two major party candidates seems to exceed [legal campaign contribution] limits.” To my knowledge, of the many challenges to the CPD monopoly on Presidential debates involving the two major candidates, no challenge has alleged the in-kind contributions to the campaigns violated contribution limits. And my limited understanding of law is that this point will not be able to be brought up on appeal because it was not brought up originally by the Plaintiffs in the case.
The decision, while being legally correct, also has some flawed reasoning and factual inaccuracies. Richard Winger of Ballot Access News reported on the factually inaccurate information in some of the footnotes. I will instead focus on the flawed logic. Footnote 6 states “When Mr. Johnson and Ms. Stein ran for president in 2012, there were over 240 declared candidates for president, excluding those seeking the nomination of a major party.” The assertion by Judge Collyer is that it would be unwieldy to host a debate with all of those candidates. While there were that many candidates to file a Form 2 with the FEC, only 27 candidates achieved ballot access in at least one state, and only Johnson, Stein, Virgil Goode & Rocky Anderson were on a number of ballots and/or a certified write-in candidate in enough states to theoretically receive a majority of electoral votes. A debate with 6 candidates seems a lot more manageable and in fact not unheard of. The GOP earlier this election cycle hosted multiple debates with 9 or more candidates.
Collyer also had some sound logic in her decision writing, “this Court could not require Defendants to include Plaintiffs in the debates because such an order would violate the First Amendment prohibition on forced speech and forced association.” She then cites a previous Supreme Court decision, Arkansas Educational Television Commission v. Forbes, which reads, “Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all. A broadcaster might decide the safe course is to avoid controversy, and by so doing diminish the free flow of information and ideas. In this circumstance, a government–enforced right of access inescapably dampens the vigor and limits the variety of public debate.”
As someone who has previously organized debates and other outlets for candidates to share their views, I have taken the approach of inclusion, and invited all candidates. I do this not because I am required, but because I believe in allowing people to hear from all of the candidates. It is my hope that others will take a similar approach and finally bring some competition in the realm of political debates.