Intellectual Property Law

Judge Orders Inclusion of Kucinich in Debate

By Tim Armstrong, Derek Bambauer, and William McGeveran.

I am back from my blogging hiatus, during which I have been celebrating Christmas, grading, writing, and attending the annual schmooze-a-thon known as the American Association of Law School Annual Meeting.

And what better point of re-entry than a post combining my love of info/law with my love of politics?

Late yesterday evening, a Nevada trial judge ordered MSNBC to include Dennis Kucinich in tonight’s televised debate from Las Vegas. The network had planned to host only the top three Democratic candidates. MSNBC lawyers filed an appeal with the Nevada Supreme Court (the state has no intermediate appeals court) but it is not clear if the temporary restraining order will be reviewed before show time tonight.

[UPDATE: The New York Times now reports that the Nevada Supreme Court will hear oral arguments at 4:30 ET, four and a half hours before air time.]

The principal legal basis for Kucinich’s complaint was nothing to do with free speech law or even election law, however. It was a contract claim. According to Kucinich, MSNBC originally promised to include him in the debate, and then changed the parameters for participation. Having once promised to have him, Kucinich argues, the sponsors cannot retract the offer.

I have not seen the judge’s ruling, but this certainly strikes me as a troubling interference with a news network’s ability to structure its coverage as it sees fit. The debates are not official components of the election, they are just a different form of news interview. It may well be that we should also have more officially sponsored debates with neutral rules that admit more candidates, but letting judges issue injunctions to set the rules of a privately-organized debate seems unwise. Note too that MSNBC is a cable channel, not a broadcast channel, and so arguments about using public airwaves or FCC licenses pretty much miss the point.

And why are debates special? It’s hard to distinguish this “debate” from any other cable-news interview show. Does every guest whose scheduled interview has ever been “bumped” when the broadcaster changes its plans have a breach of contract claim? A guest can be sitting in the chair, made up and ready to go, when suddenly Britney is holed up in her bathroom or something and the interview never occurs. If the guest was going to talk about subprime mortgages or global warming, we may decry the host’s news judgment, but sometimes that’s the way the First Amendment cookie crumbles.

Full post as published by Info/Law on January 15, 2008 (boomark / email).