On What Grounds Can a Court Force MSNBC To Include Kucinich in Their Debate?

[tritsofme]

It really doesn't bother me that much, the only big story about him being there, will be the fact that he sued to get in the door.

But it is troubling to me that a judge can compel private entities to include someone in their private functions or risk being shutdown by the government. Not exactly a road I like treading upon.

It seems as though there should be no equal time law coming into play since this is MSNBC, the cable station.

Its nice that you're happy Kucinich is being included, but the legal rationale for this is what really interests me.

[ursi]

1. on what grounds do they exclude him? because Harry Reid says so?

Last week, Harry Reid trashed Kucinich on a Reno liberal radio station ...said he should just go away.

[tritsofme]

2. Its their debate, they should be able to include or exclude whoever they want.

Reid's entitled to his opinion as well, and I happen to agree with it.

[onenote]

3. His complaint raised a breach of contract claim

and a claim under Section 315 of the Communications Act (equal opportunities). Since a state court (which is what decided the case) is unlikely to take jurisdiction over the Communications Act claim (over which the FCC may well have primary jurisdiction), my guess is that the judge agreed with DK 's contract claim.

I agree that having the courts dictate to news organizations how they cover campaigns would be troubling.

[JDPriestly]

40. I heard that the debate sponsors originally told Kucinich he could participate

then said he couldn't. I can believe that Kucinich would have suffered damages in terms of the expense of plane tickets, etc. had he been barred from the debate.

[mikelgb]

4. PDF OF LAWSUIT:

http://www2.lasvegasnow.com/docs/kucinich.pdf

[rug]

14. Breach of Contract. They invited he accepted. Relief: Specific Performance of Contract.

[slick8790]

52. I cannot believe he cites online polls in trying to prove he's a serious candidate.

He's crazier than i thought he was.

[Jim Sagle]

5. Here's a message from the cluephone:

They're not a private entity, they're a public corporation, using public property (the airways), providing a public service (news) and holding a public event (a Democratic primary debate).

Got it?

[tritsofme]

6. No.

The fact that they are a publicly traded company doesn't mean that we are all entitled to appear in their events.

MSNBC is a cable channel not using public airwaves.

The fact that they provide news and are holding a political event makes it all the more troubling that the government is compelling them to include a person or risk shutdown.

[no name no slogan]

8. The airwaves ARE public

broadcasters are licensed to use the airwaves in the public interest, but the airwaves themselves are considered public property.

Also, MSNBC invited Kucinich, then dis-invited him. That's also part of the suit.

[tritsofme]

10. Yes, you are correct, the broadcast airwaves are public.

Cable channels don't need to do jackshit for the public interest.

[arendt]

27. And you approve of that sentiment and call yourself a Democrat? n/t

[tritsofme]

28. Its reality.

It doesn't matter if I like it or not.

What is the Playboy Channel doing for the public interest?

Nothing. It doesn't have to, its a cable channel.

People are spending money for cable, let them get what they pay for.

[arendt]

32. But, they are not just spending the cable fees...

they are spending their own corporate assets to further marginalize any semblance of democracy. They internally fund show after rightwing show, and won't listen to proposals that might appeal to a liberal audience - even when they come with financing attached. And, its not just political shows. Its deep sociological propaganda, like American Gladiator and Survivor - shows that teach people to behave like thugs, to lie and cheat and steal, to win at all costs.

As for their behavior as businessmen, I vividly remember an incident in the 1990s when John Malone (cable pirate and rightwing fanatic) had his rates challenged by a town. Instead of going to discuss this, he simply turned off the town's cable. And, other than bad publicity, he got away with it. The town caved.

Is that the kind of country you want to live in? Where cable owners tell you what you can watch and what you can think and how much you should pay for the privilege? And don't think they won't do the same to the Internet as soon as they get their hands on it.

arendt

[onenote]

33. actually, I do want to live in a country with a press that isnt dictated to by the government

The fact that most newspapers are corporations run as profit making entities doesn't make me want them to be subject to government licensing or government dictates as to what they print. And I don't view that as a Libertarian stance, I view it as a progressive stance.

[arendt]

36. I want to live in a country where the electorate isn't dictated to by five media corps...

And, don't mix modalities. What is true technologically for cable is not true technologically for print media.

You need government licensing for the airwaves, and local government contracts for cable systems. You need neither for a newspaper.

And, on the other hand, the FCC regulates the cross-ownership of TV and print. In case you missed it, there is a huge fight on about media concentration at the FCC.

Don't tell me your stance is progressive when you lobby for exactly what the GOP at the FCC are ramming down the country's throat.

arendt

[onenote]

39. most communities have only one newspaper

But the courts have wisely concluded that isnt a justification for letting the government get involved.

The government doesn't license cable networks like MSNBC. Sorry.

And I'm well aware of the media concentration fight and hope that some of the rules that increased the number of stations that can be owned by one entity, particularly in a single market, are rolled back.

And you don't really "need" local contracts for cable systems. A simple permit allowing the cable system to place its wires over the public rights of way would do, just as it does for most construction that crosses the public rights of way. (Last time I checked, neither the water company or the electric utility had different first amendment rights than anyone else simply becuase they cross the public rights of way with their facilities).

[arendt]

44. And that one paper will be owned by the same entity that owns all the other media...

if the FCC ruling stands.

Again with the unjustifiable analogies.

The courts decided that the town having one newspaper was acceptable because there also were many independent radio and TV stations...and we are right back to the FCC fight.

---

The cable contract is not needed for "right of way" reasons. Its needed because the local cable system is a "natural monopoly". Just like you don't see two sets of water pipes in town, you don't see two sets of cable wires. If there is going to be a natural monopoly, then the local government is going to regulate it to prevent price gouging, bad service, etc.

---

Your arguments in this post are off the mark.

You take corporate-corrupted government as your standard, and say you don't want to be controlled by it. Since the only other national-scale entity are the giant corporations, you are handing your power to the very people who ruined your other option. Talk about cutting off your nose to spite your face.

arendt

[onenote]

60. sorry, but you're wrong about cable franchises and about newspapers

First, you apparently need to go back and read Miami Herald v. Tornillo, the 1974 Supreme Court case that held that the fact that local newspapers were becoming monopolies didn't justify government regulation. You say that the reason for the decision was that there were many independent radio and tv stations. WRONG. In fact, here how the case described the "marketplace of ideas":

"The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public. The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership."

In other words, regulation was being advocated because of the concentration of media. And yet, a unanimous Supreme Court held that notwithstanding the concentration occurring in the communications marketplace, a government mandated right of access to have a newspaper print something for a third party violated teh First Amendment.


Now, on to your mistaken views on cable:

A cable franchise is only needed, by law, if rights of way are crossed. And a franchise is not even needed if the cable system was operating without a franchise on July 1, 1984. Its the crossing of the rights of way that gives the local authorities the "police power" to license, not a "natural monopoly theory." Indeed, while local governments are permitted to use this authority to regulate certain aspects of the provision of cable service (build out requirements, customer sevice etc), they are barred from regulating content. And all there are no minimum requirements for what goes into a franchise: it can be as simple as a permit authroizing the construction of the cable system. Among other things, cable systems aren't "natural monopolies": currently all cable systems are subject to competition from two satellite providers and increasingly from wireline cable systems operated by Verizon or ATT. Since 1992, its been illegal for a local franchising authority to award an exclusive franchise. And the law expressly provides that local governments may not regulate the content of the service provided by a cable system.

I've been practicing communications law for 30 years, and believe me, I'm am so NOT off the mark.

Here are some citations for you:

47 USC Sec. 602(7)(B): the term "cable system" does not include "a facility that serves subscrdibers without using any public right of way"
47 USC Sec. 602(9): a "franchise" is an authorization issued by a franchising authority whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.
47 USC Sec. 621(a)(1): a franchising authority may award one or more franchises and "may not grant an exclusive franchise"
47 USC Sec 621(b)(1): exclusion from franchise requirement for systems operating july 1, 1984.
47 USC Sec. 624 (b): barring local franchising authority from establishing requirements for video programming.
47 USC Sec. 624(f): barring any federal, state or local government from imposing "requirements regarding the provision or content of cable services" except as expressly provided elsewhere in the law.

I could go on, but you either get the picture or you don't.

[JDPriestly]

43. The cable companies, however, usually broadcast a public interest

channel.

[WHEN CRABS ROAR]

29. And most don't do jack shit for the public interest.

But corporations are afraid of the DK message. A lot of people hold that view also.

[wndycty]

11. Cable/Satellite is not considered public airwaves . . .

. . .different rules from traditional broadcast.

[Critters2]

15. Cable doesn't use the airwaves.

This is why cable can get away with lower decency standards than broadcast networks. Cable only uses privately owned satellites, dishes and, well, cables to send its signals. The whole "the airwaves are public" argument doesn't apply to cable channels.

[arendt]

13. You must have been born after Reagan repealed Equal Time...

because you seem to think that just because a corporation has grabbed some piece of the public square that no one can tell them how to behave in it.

The corporations' actions throughout this campaign are full of bias and spin. We hear nothing of the war, but plenty of BS and fluff about disfavored/favored candidates.

Don't hand me the bull that corporations are private entities. These entities (Disney, GE, Fox, ?Westinghouse?) have more financial power than most nation states. It is part of the pro-corporate propaganda line that its just jim-dandy to privatize everything. Real Dems do not buy this libertarian garbage.

arendt

[tritsofme]

17. In the cable arena, yes, I think they can do whatever the hell they want.

Broadcast television should and does have different standards.

[arendt]

49. That's like regulating AM radio (which is Lowest Common Denom. crap)...

and not regulating FM, where anything that is listenable has migrated.

There is zilch difference in making a program for broadcast or for cable. Technically, they are equivalent. The difference is all about regulation, all about giving the corporations a platform that they totally control.

And, I do not think anyone should be allowed to "do whatever the hell they want". That is a pretty broad statement. Is it OK to shout fire in a crowded theatre? That's what cable has the power to do.

arendt

[onenote]

62. shouting "fire in a crowded theater"? Give me a break

There are several hundred cable channels. Most cable operators carry around 70 - 90 or more. No one cable channel has the power you claim.

WHile I think that there is too much concentration in the local tv market (duopolies, local management agreements), I am old enough to remember when there were only three broadcast networks and most local stations offered little if any national news programming. Until JFK's assasination in 1963, the nightly network news programming was 15 minutes long.

As recently as 1980, 75 percent of the televisions in use during the time the network news was on were tuned to one of three choices: ABC, NBC or CBS. Today, the audience is fragmented among those networks, Fox, CNN, hundreds of non news choices, and a virtually unlimited array of selections on the interet. Excuse me for not thinking that the old days of three choices were so much better than today (although, as stated, the pendulum towards local concentration has swung too far).

[arendt]

68. Your post is a non-sequitur to your title...

you never rebut the charge that "whatever the hell they want" includes anything. They are your words. You never say what, specifically, you MIGHT be willing to regulate. Instead, you switch the topic to the "variety" available to me.

So what if there are 90 channels. Its another old joke: 100 channels and nothing on.

There is no diversity when all the channels are vetted through the same five mega corps. All you get is primetime sex and violence, copycat BS, shopping channels, and debased "science" channels offering motorcycle customization shows. God forbid there should be any real issues discussed honestly.

----

And, there you go again, this is not about the Internet. You keep trying to switch the topic.

----

Your post is all bluster, and "look, over there", without any substance.

arendt

[onenote]

78. Let me try again.

First of all, I wasn't the one to make the claim that cable can do "whatever the hell they want." Indeed, like any First Amendment speaker, there are things that they can't do. They can't "yell fire in a crowded theater." They can't libel people. They can transmit "indecent" programming, but they can't distribute "obscene" material.

My point, which on reflection I admit was not terribly well made, was that I can't conceive of a situation where cable could do something that would be the equivalent of shouting fire in a crowded theater. I suppose if some cable channel ran a "War of the Worlds"-like program as a hoax and it caused a panic, someone might have a beef, but that's about it.

And, to address a point that you made in your earlier post that I should've addressed, the fact that there is no difference between cable programming and broadcast programming is besides the point. There are video programming services being developed today that use the Internet as their primary source of distribution and others being developed for distribution via mobile phone networks. Should these video services be subject to the same regulatory obligations as free, over-the-air television? I don't think so. Cable has been held, in large part because of its subscription character, to be different than free over the air television and, in fact, to be more similar to newspapers in terms of its first amendment status.

Finally, I'm not thrilled by the fact that the four broadcast networks have obtained such a dominant position in the provision of cable network programming. That is a result in significant part of the 1992 Cable Act, which gave broadcasters the right to withhold from cable operators the right to retrtansmit the local, free over the air station unless the cable operator ante'd up. Instead of getting cash, the broadcasters started creating new, cable-only networks and forcing cable operators to add them to their line-ups as a condition of obtaining permission to retransmit the free over the air signal. I'd love to see that provision repealed so that more independent voices had a shot at getting their programming on cable and satellite line ups.

[onenote]

23. actually the "equal time" rules haven't be repealed

The equal time (actually equal opportunities) rules are still on the books and still enforced. They relate to appearances by candidates on television stations and the obligation of the broadcaster to make comparable time available. So if a station sells ad time to one candidate, other candidates for the same office are entitled to purchase a comparable amount of time. And if a station shows a movie featuring a candidate, then the other candidates are entitled to a comparable amount of free time.

However, the equal opps rules generally don't apply to news coverage and to coverage of debates.

The Fairness Doctrine, which is different from the "equal time" rule, was repealed in the 1980s.

[arendt]

47. Except when they deem the ads "inappropriate" or some other such excuse...

The "reality", as has been thrown around a lot in this thread, is that equal time rules are SELECTIVELY litigated by the stations - depending on the political viewpoint of the person/group applying for the equal time. I must have missed all the free time they gave Arnold Schwarzenneger's 200 opponents in his first run for governor. That must have been a hell of a lot of free air time.

This rule has been corrupted/bent as much as any other part of participatory democracy in this country these days.

arendt

[onenote]

63. if arnold's candidates didn't file complaints, its their fault

the stations don't selectively litigate the rules --- its up to the candidates to seek to have them enforced.

Interestingly, some national cable networks, unsure of their obligations under the equal opps rules, stopped carrying arnold movies during his campaign for governor. Others, however, took the position the rules didn't apply to them and continued to air his movies. As far as I can recall, none of his opponents complained, so we don't know which side had it right.

[FREEWILL56]

73. I would not just call this news coverage.

This is a political debate that this so-called news coverer created. So you say they can make their own news and cover what they want of it when it comes to politics? Why do you really think the basis of that equal opportunity ruling was passed and shame on Dennis for actually appealing to the commission for a ruling on what they did. I'm not all that happy about much of what the FCC has been up to under GOP rule, but I think this could be an extension of the equal opportunity clause as it does not just have to be bought airtime. As I mentioned on another thread addressing this question, the cable companies do get this from off of the air from satellites so it is being broadcast and does not have to be a terrestrial based station to be concidered broadcasted. For somebody previously associated with them you should know much of this too. Do I think the FCC goes too far sometimes? Yes, and you should be more upset about the FCC taking frequencies and selling them to the highest bidder as they don't own them to sell them. They are allowed rule making and you'll have to contact them to ask them specifically under what they make this ruling for DK, but they don't own to sell.

[onenote]

79. i agree that its problematic for news organizations to sponsor the debates

I would much prefer it for the debates be sponsored by a third party and treated as a news event that the networks could then choose to cover or not.

And the fact that satellites use radio spectrum has not been found to be grounds for imposing the sorts of public interest obligations on cable as are imposed on broadcasting. One reason for the distinction is that cable is a subscription service which, according to the courts, makes it more like newspapers than broadcasting. The courts also have pointed out that the scarcity rationale -- the fact that there are a limited number of broadcast stations that can operate in one place at one time because of intereference issues does not apply to cable.

[FREEWILL56]

86. Sorry, but the cable companies are getting it from the satellites

and they are broadcasting or there wouldn't be so many with satellite receivers. Satellites are only repeaters for terrestrial broadcasts. Terrestrial stations use radio spectrum and to use radio spectrum one must broadcast and that is the arguement I use for the satellites as they are like the tv stations being under that ruling because they broadcast. If the cable companies get it from the source from one long cable you may have an arguement.

[Jim Sagle]

50. 1) No one said we are ALL entitled to appear - just all Democratic candidates.

It's called truth in advertising - check into it. If they won't invite all Democratic candidates, they have no business calling it a Democratic debate.

Last I checked, this was a Democratic board. Why not fight FOR Democrats instead of the media giants who use their monstrous power to marginalize them?

[tritsofme]

54. How many people have properly filed to be Democratic candidates in NV?

My guess is that more 4 or 5 have.

Should all of these Democrats also be included?

[tritsofme]

58. I found the list, there are 14 official candidates

Biden, Caligiuri, Capalbo, Clinton, Crow, Dodd, Edwards, Gravel, Hewes, Hughes, DR Hunter, Keefe, Killeen, Koos, Kucinich, LaMagna, Laughlin, Obama, Richardson, Savior, Skok

Why is Kucinich entitled to appear but not Koos?

[FREEWILL56]

56. So how do you think the cable companies get that wonderful MSNBC

piped to you? Do you think they string a giant cable around the USA? It goes over satelites and that is the airwaves, but the FCC also has jurisdiction over the interstate cables including the phones, internet, cable tv, etc. so either way they rule on it by the rules the FCC mandates for them under the laws applicable. Even Wall Street does not do anything they want to as they have rules to follow and are private so what chance does MSNBC have against a public debate sent over communications cables and the airwaves for future public servants? Corporations have too much control now so don't think they should be given more just because 'they are private corporations'.

[FREEWILL56]

57. self delete

dupe

[onenote]

7. here's a response from the reality phone

MSNBC is a private entity. So for that mattter are NBC and GE. The fact that they're a public corporation is irrelevant. The NY TImes is a public corporation and I don't think a court can tell the NY Times how much coverage they have to give DK or anyone else. You can call "news" a public service, but that's pretty meaningless too, unless you are prepared to say the government should regulate the news. And the event isn't public. Its a privately sponsored debate being cablecast on a cable channel, not a broadcast channel.

That being said, it was wrong for NBC to change its criteria to exclude DK late in the game. And my guess is that the basis for the court's decision has nothing to do with anything in your post, but is based on a simple contract theory (which DK raised in his complaint).

[no name no slogan]

9. The airwaves ARE public

They are owned by the American people and regulated by the FCC. Broadcasters are granted licenses to broadcast IN THE PUBLIC INTEREST (in theory).

[onenote]

12. Sorry, but the courts have held that cable channels are not subject to the same

obligations as over the air broadcast channels. The debate is on MSNBC, a cable channel.

Thanks for playing.

[cali]

16. MSNBC does not broadcast over the public airways n/t

[Critters2]

19. See no. 15 above. nt

[tkmorris]

22. I don't understand why you don't get this

MSNBC DOES NOT USE public airwaves. Try to stick an antenna into the public airwaves and receive them. You can't.

They are a cable and satellite television entity and, as such, are not subject to the rules governing public airwaves.

[arendt]

25. It is a private entity that has usurped a public function - i.e., retail politics

It is classic GOP BS to say that these are poor, powerless little entrepreneurs - when in reality, five corporations control 95% of all media in this country. The balance is so out of whack, a judge needs to step in. Nobody wants more media concentration, more media censorship; but the FCC is determined to do that. And you tell me that all this corporatist deconstruction of representative democracy is "irrelevant". You need to get out more often and listen to real people who are being screwed over by corporations like NBC and the disgusting William Kristol hiring NYT.

It used to be that candidates were supposed to go out and build support by impressing real people in real situations. Now, they go out and buy support so they can bamboozle real people in phony, TV situations.

arendt

[onenote]

26. rant away. it doesn't change what the law is.

and the question being discussed is what legal rationale the court had for telling MSNBC to include DK. It seems likely it was a contract rationale.

[arendt]

30. The original question was answered almost immediately. I am responding to...

the disgusting, libertarian tone that this thread has taken about the sacred rights of corporations. I thought this was DEMOCRATIC underground, not "I love big corporations" territory.

arendt

[onenote]

31. y'know, most newspapers are corporations too

and I'm quite content with them having the protection of the first amendment so that the government is coming around telling them what to print.

[arendt]

34. The first amendment protects speech. This incident is the stifling of speech.

Is this a debate for the American electorate, who deserves to hear the "whole truth"? Or is it a debate for only cable subscribers, who deserve the BS that they stupidly agreed to when they made the cable contract.

The analogy with print media simply is a red herring. A print medium cannot hold a live debate.

arendt

[tritsofme]

35. In the strictest legal sense, your latter scenario describes reality.

It doesn't sound as though you like it, but that's the way it is.

[arendt]

37. Freedom of speech for everyone who can afford a cable subscription is reality? that's sick. n/t

[tritsofme]

38. Free speech means MSNBC gets to decide who they want in their debate.

That is being broadcast privately through cable television, no one has a right to see debate unless they paid for a cable package that includes MSNBC.

I have no problem if the breach of contract argument holds legal weight, but I have a feeling you would be making the same argument regardless.

[arendt]

45. "Freedom of the press for anyone who owns a press" is an old, sick joke.

I cannot believe I am having this argument on a Democratic board. If no one but the megacorps will sponsor the debates, then we are all screwed. Because the corporations are only going to hold those debates in the forum most friendly to them - in this case, the unregulated cable world. Why can't we pay the networks with some of the taxpayer dollars set aside for elections? Why do we let the networks pick asshole moderators like Tim Russert? Would that be all right with you?

If not, then your position is classic libertarian - the public has no right to the public square - in fact, according to you, there is no public square. You are a step away from Margaret Thatcher "there is no such thing as society".

arendt

[Jim Sagle]

55. Makes one wonder how many actual Democrats are here, doesn't it?

;)

[MonkeyFunk]

41. There's no first amendment issue here

first of all, only the government can violate your 1st Amendment rights. There is no right to be included in debates - otherwise *I* could demand to be included.

[arendt]

46. You are correct. I was responding to the misuse of the newspaper analogy and further misused it. n/t

[Jim Sagle]

51. No they are NOT a private entity, they are PUBLIC.

If you don't like it, go to some other dimension where they use a different dictionary. They are non-governmental. They are also public.

And don't tell me what's irrelevant; you don't have a glimmer of a clue. Wasting time and space on a Democratic board defending media conglomerates that disrespect and marginalize Democrats is a textbook illustration of irrelevance.

[onenote]

64. so in your dictionary, what is a "private" entity

[Jim Sagle]

65. Your home is private. Your business is not.

[Hobarticus]

66. Why isn't my business "private"?

[Jim Sagle]

67. Because it operates in the public domain.

As an example, you can refuse anyone the right to sit down and eat at your dinner table, for any good or bad reason or no reason. If you open up a restaurant, it's a whole different story.

A business is in the private SECTOR, but it still operates in the public arena. A big business like a multi-media conglomerate, even more so.

[calmblueocean]

18. I doubt this would hold up on appeal, but it doesn't have to

The legal rationale Kucinich claims in his complaint ( http://www2.lasvegasnow.com/docs/kucinich.pdf ) is that his exclusion violates the requirement of 47 USC, Section 315 for FCC-licensed broadcasters to operate in the public interest, and also that NBC is guilty of breach of contract.

I don't think he has a case, or at least a case that merits injunction, that would be upheld on appeal, but it doesn't really matter so long as the judge is sympathetic. There are a lot of district court judges in every state who rule on their feelings instead of the law, and I think that's what happened here. Not that I'm sad about it!

[onenote]

24. I think its more likely that the judge ruled in DK's favor on his contract claim

than on his SEction 315 claim. If its the latter, NBC definitely would appeal and almost certainly would win (if for no other reason than, I believe, the FCC has primary jurisdiction over claims under section 315).

[calmblueocean]

42. Video of the judge ruling here

http://www.lasvegasnow.com/Global/story.asp?S=7622444&nav=168Y

The report is quite interesting. First the judge says that he is "offended" by NBC's actions in revising the rules after offering Dennis an invitation, then the NBC lawyers claim that the Nevada judge has no jurisdiction because this deals with federal law. It sounds like the judge is ruling on the contractual claim, though, instead of the federal "public interest" claim, and if so, sounds to me like the NBC lawyers are just blowing smoke.

Given that the debate is tomorrow, this could be a squeaker.

[Algorem]

20. on the grounds of sticking it to anti-kucinich cranks

[hlthe2b]

21. Breach of contract? Seems to me they invited him, he accepted

and the act of dis-inviting is a breach of contract. Even if verbal, such contracts are enforceable in many states. :shrug:

[mckeown1128]

70. contracts are not enforceable like this...

what happens if they just lock him out. What does MSNBC go to jail?! The judge was wrong this would never hold up.

[hlthe2b]

83. Injunction that cancels the debate; contempt charges if they ignore

and yes, theoretically corporate officers COULD go to jail. Civil penalties also could apply.

[Bonobo]

48. How about we are a Democracy which depends upon an informed populace?

How about fairness?

How about he's a presidential candidate?

How about...you get a fucking clue?

[Perky]

53. Effectively it is a in-kind political contrution of air time.

[tabasco]

59. Section III, Paragraph 1 of the McGillicutty Clause. n/t

[Hobarticus]

61. Here's another question: do they HAVE to ask him anything?

They don't, do they?

So DK just sued for the right to be ignored on stage, live, on camera.

[DaLittle Kitty]

69. Corporatist Judges Require NOOO Legal Rationale For ANY Decisions They Make

:)

[JTFrog]

71. PRIVATE FUNCTION???!!!!!??????

It's a debate for candidate of the most important position in our country and it should be a private function???


WHAT THE F*CK?

[tritsofme]

75. The government isn't running it.

MSNBC, the Democratic Party, and all of the co-sponsors are private entities.

Don't like it?

Too bad.

[JTFrog]

84. Don't like it, change it. Better than your snotty answer. n/t

[onenote]

80. of course its private

If a newspaper held a debate in its offices with a couple of candidates and published the transcript for the world to read, could any other candidate sue for the right to participate?

What if the event was held in a space that was open to the public (like an auditorium) but the sponsors sold tickets? Or even made the tickets available on a first come first served basis but the event wasn't televised live?

[LanternWaste]

72. breach of contract?

breach of contract? :shrug:

[cloudythescribbler]

74. Suppose the board of MSNBC decided they JUST didn't like HRC, and excluded her --

well, isn't that "free speech"? After all, since NO ONE is owed a space in the debate (public ownership of the airwaves be damned) what basis is there for MANDATORY inclusion of anyone?

There are equal time, public responsibility, contractual and quasi-contractual issues etc. But the real question is to what extent do you regard (a) television as a publically accountable entity and (b) election processes and debate as essentially in the public realm?

OK, let's assume you accept the basic premise that MSNBC can't just do ANYTHING it pleases, and is publicly accountable. Then the question is 'how much discretion do or should they have in drawing the line?'. This is indeed a judgment call, but in this instance there are several obvious factors that indicate that the exclusion of Kucinich is both an improper choice and a bad precedent:

-- They previously had a standard for who was to be included in the debates, and, when someone they apparently liked (Bill Richardson) dropped out, they no longer had the motivation to include Kucinich. There is good reason to believe that something along the lines of the original hypothetical, though it might have sounded absurd, holds in this instance.

-- Up until this time there have been many many Democratic debates, often with six or more candidates participating. On what grounds is FOUR now an excessive number if SIX was not. Exclusion is specifically justified on the grounds that it would be unwieldy to include every chicken farmer from New Jersey who somehow gets on the ballot. But the logistical argument fails here, especially considering that Kucinich has been in previous debates, and that other previous debates (even some that excluded him) had MORE than the four candidates that including him, consistent with MSNBC's prior rules, would entail.

These two arguments, as I have tried to show, very much support each other and work in a synergistic way. It seems to boil down to 'how much discretion do you allow to MSNBC to be arbitrary and unfair?'. I would say that public policy should allow the LEAST possible arbitrariness and unfairness, that ANY standard they set be held to close (though not itself arbitrary) review.

[MGKrebs]

82. Are candidates compelled to show up?

Why should MSNBC be compelled to invite them if they aren't compelled to accept? I mean, fair is fair.

Candidates show up at events all the time in which they may be the ONLY candidate invited. What is the distinction? What makes this particular event so special?

[StefanX]

76. On the grounds that a judge's opinion matters more than a weapons manufacturer's?

Sheesh. What kind of question is that?

The guy is a candidate. The airwaves belong to the public.

GE (an arms manufacturer) should not be the one to decide who's in the debate.

If anything, I think GE and NBC should lose their corporate charter and broadcast license over this fiasco.

This isn't GE's & NBC's debate. They leased the airwaves from the public, and the Telecommunications Act of 1934 and 1996 says they have to act in the public interest.

It is in the public interest to have diverse front runners included in Presidential debates.

GE and NBC blatantly tried to block access to the debate, based on whatever reasoning (most likely their corrupt war-profiteering agenda) and therefore it is necessary for the people, represented to a judge, to step in and restore fairness in access to the public airwaves.

I think it's absolutely HORRIFYING that a weapons manufacturer thinks it can exclude candidates it doesn't like from the debates. That is a recipe for disaster, and the Founding Fathers would be rolling in their graves if the knew we had let things get to this point.

[onenote]

77. its a perfectly legitmate question

The courts have ruled that cable networks, such as MSNBC, are not subject to the same sorts of public interest obligations as over the air broadcasters and, due to their subscription character, are more akin to newspapers than broadcast stations. Moreover, as a matter of well-settled federal law, state regulation of interstate communications has been preempted and is permitted only to the extent specifically authorized by COngress. Furthermore, it also is well-settled that complaints arising out of the Communications Act's "equal opportunities" provision fall within the primary jurisdiction of the FCC and cannot be brought initially in federal or state court (which is why DK's complaint about being excluded from the NH debate was filed with the FCC). That is the current law of the land. So its a valid question to ask how a state court judge at the trial level could order MSNBC to include DK and threaten to enjoin the debate (a fairly stark example of what is known as a "prior restraint" on speech).

As it turns out, it seems that the judge based his ruling on a state common law contract theory. Whether it will stand on appeal has yet to be decided as far as I've heard.

[robbedvoter]

81. Breach of contract? They agreed he'd be there, based on their criteria - then reneged.

[elleng]

85. private entities . . . private functions

You would be correct if these were in fact private entities/private functions, but MSNBC is on the air due to authority received by its parent NBC from federal government, a certificate of public convenience and necessity. They are here represented by lawyer representing NBC Universal. I hope that courts will pierce the corporate veil in these critical public matters.

http://www.google.com/search?hl=en&ie=ISO-8859-1&q=see+beyond+the+corporate+veil&btnG=Google+Search