Court won't rule on public stations' right to exclude minor candidates

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court put radio and television stations that are run by state and local governments on notice yesterday that, in future elections, they might not be able to stage on-the-air debates and invite only the major party candidates.

Without explanation, the court turned down a case from Arkansas that opposed the rights of minor party or independent candidates to the rights of broadcast outlets owned and operated by government.

At a minimum, the justices' action leaves about 230 public stations in a limbo over their rights, an uncertainty that is likely to last until the court at some point chooses to clear things up.

Federal appeals courts are split on the constitutional issue, and the Supreme Court's order yesterday marked the third time in 11 years that the justices have chosen not to get involved.

This time, the justices opted for the first time to stay out of a case in which a lower-court ruling had gone against the public stations. The two prior rulings that had been left intact, in 1983 and 1991, had upheld those stations' right to decide for themselves what to put on the air.

The three federal appeals courts that have ruled on the issue are in different parts of the country. So it appears that the rights of public broadcasters depend on the state where they operate. Each judicial circuit's decisions apply only to the states in that circuit.

The constitutional dispute involves only stations that are owned and operated by state or local governments; those are the only ones that are governed by the U.S. Constitution, thus potentially limiting their editorial discretion. All radio and television stations, public or private, are covered by a federal law that requires them to give "equal time" to candidates in federal elections. That law, however, is seldom enforced, and it does not apply to candidate appearances on the air that are considered to be news broadcasts.

Because of the narrow protection available under federal law to candidates not from the major parties, some of them have sought to use the Constitution to try to gain access at least to debates on government-run stations.

In the case that the Supreme Court bypassed yesterday, Ralph Forbes of London, Ark., running for Congress as an anti-abortion candidate, was not invited to a debate on a public station in Conway during the 1992 campaign. The federal appeals court in St. Paul ruled last April that government-owned stations cannot exclude candidates from a televised debate unless they have "a legitimate reason" for doing so; the stations must remain neutral in their choice of debaters.

The stations could not use as a reason for barring a candidate the controversial nature of the candidate's views or the views of the candidate's party or followers, the lower court made clear.

The Arkansas Educational Television Commission, which operates five noncommercial educational TV stations in the state, challenged that ruling in its appeal to the Supreme Court. There was no indication yesterday that any justice had voted to hear the appeal.

In a second case yesterday, the court refused to clarify the rights of adoptive parents to keep the child rather than being forced to give it up years later to a biological parent. The court gave no explanation for passing up an Illinois case that has embroiled the state courts, the legislature and the governor, and some of the state's media in a hot controversy.

The case involves a child named "Baby Richard" in the legal documents, who was given up at birth in 1991 by his mother after she became angry over a temporary breakup of her relationship with the father. When the father returned home from an extended visit to Europe, 57 days after the child's birth, he learned that the child had been given up for adoption.

The Chicago couple that took the boy and sought to adopt him has been waging a battle in state courts to keep the child, while the father has countered with a claim to the child. He was ruled unfit by a state judge, but the Illinois Supreme Court overturned that result.

With the Supreme Court rejecting two appeals yesterday -- one by the would-be adoptive parents, and one on behalf of the little boy -- the dispute now goes back to state courts to decide who is to get custody.

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