About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

77 Tex. L. Rev. 1803 (1998-1999)
Electoral Exceptionalism and the First Amendment

handle is hein.journals/tlr77 and id is 1819 raw text is: 






Electoral Exceptionalism and the First Amendmentt



Frederick Schauer* and Richard H. Pildes**


      In Arkansas Educational Television Commission v. Forbes,' the
 Supreme Court held that at least one phase of the electoral process, a
 candidate debate, is special for First Amendment purposes. At issue was
 the decision of a state-owned television station to exclude from the
 congressional candidate debate it was sponsoring an independent candidate
 who had qualified for the ballot; the station included only the Democratic
 and Republican candidates. In essence, the case required the Court to
 decide whether state journalism was best characterized as the state or as
 private journalism. In the Court's view, the journalism categorization was
 more apt.2 Although there is no logical necessity to treat state journalism
 as either pure journalism or pure state action, the very fact that drama-
 tically different and mutually exclusive constitutional rules attach to the
 state than attach to journalism3 explains why the Court in Forbes believed
 it necessary to assign a dominant characterization. And as a consequence
 of this characterization decision-of deciding to consider state journalism
 as a member of the species journalism and not as a member of the



    t An earlier version of this paper was first prepared in connection with IF BUcKLEY FELL (E.
Joshua Rosenkranz ed., Century Foundation 1999), a publication sponsored jointly by the Century
Foundation and the Brennan Center for Justice at NYU School of Law.
    * Frank Stanton Professor of the First Amendment and Academic Dean, John F. Kennedy School
of Government, Harvard University. Research for this paper was supported by the Twentieth Century
Fund and by the Joan Shorenstein Center on the Press, Politics and Public Policy. We are grateful to
participants in the NYU Colloquium on Constitutional Theory for helpful comments.
    ** Professor of Law, University of Michigan. Visiting Professor of Law, NYU Law School.
    1. 118 S. Ct. 1633 (1998).
    2. See id. at 1642-43 (holding that the debate in Arkansas Educational Television Commission was
a nonpublic forum rather than a designated public forum).
   3. To oversimplify, the First Amendment protects the right of journalists to prefer one viewpoint
to the exclusion of any other. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974)
(holding that the choice of material printed in a newspaper, whether fair or not, cannot be controlled
by the state without violating the First Amendment). The normal rule for state enterprises, however,
is that they may not discriminate among speakers on the basis of viewpoint. See, e.g., National
Endowment for the Arts v. Finley, 118 S. Ct. 2168, 2171 (1998) (recognizing that the application of
a law in a manner that raises concern about the suppression of disfavored viewpoints would be struck
down); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (In the realm
of private speech or expression, government regulations may not favor one speaker over another).
See generally Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L.
REV. 615, 620 (1991) (discussing different forms of content discrimination occurring when a regulation
affects the marketplace of ideas).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most