Intellectual Property Law

Nevada Supreme Court Bounces Kucinich

By Tim Armstrong, Derek Bambauer, and William McGeveran.

In part for reasons I discussed yesterday, the Nevada Supreme Court issued an emergency decision vacating a lower court injunction — “less than an hour before showtime” — that would have forced MSNBC to include Dennis Kucinich in last night’s Democratic primary presidential debate. A few additional comments:

1. Kucinich and some media outlets are wrongly painting this as a decision about whether media entities can exclude particular candidates from debates. But that issue is slam-dunk settled law, and Kucinich is on the losing end. In Arkansas Educational Television Comm’n v. Forbes, the Supreme Court held that even a public broadcaster could exclude candidates based upon “a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment.” The standard would be even less stringent for a private cable broadcaster like MSNBC. Even the lower-court judge who entered the original order had said, ?Had it been established at the beginning that they?ll only take the top three for the debates, I wouldn?t have any problem enforcing it.? Going forward, there really is no legal basis to require that any debate organizer include Kucinich.

2. In a puzzling wrinkle, the local NBC affiliate scrapped its plans to simulcast the Kucinich-free debate because of unexplained legal problems. On the air one anchor explained, with the articulateness of local TV news journalists everywhere, that “because of legal ramifications, we’re not allowed to show the debate” and “as a result of that [Supreme Court] decision, we, according to legal rules here and there, are not allowed to show the debate.” I have no idea what they are talking about. The Nevada Supreme Court vacated the injunction in toto, using very strong language. There was nothing left to obey. Am I missing something? Or did Channel 3 just have an overly timid lawyer?

Full post as published by Info/Law on January 16, 2008 (boomark / email).