A Libertarian Party candidate for the U.S. Senate did not have a First Amendment right to be included in a televised debate between the two major party candidates, a federal appeals court has ruled.  The appeals court reasoned that the public television station had the editorial discretion to limit the debate to candidates who had a realistic chance of winning the election.

The controversy began when Kentucky Educational Television (KET) hosted a debate between the Republican incumbent, Senator Mitch McConnell, and his Democratic opponent Alison Grimes but did not include Libertarian Party candidate David Patterson. 

KET says it limited debate to candidates who might win

KET indicated that it did not invite or allow Patterson to participate because it was limiting the debate to candidates who had a viable chance of winning.

Patterson and the Libertarian Party sued KET, alleging that KET committed viewpoint discrimination and violated his First Amendment rights.  A federal district court rejected these arguments.  On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed in Libertarian Nat’l Committee v. Holiday.

The 6th Circuit relied on the U.S. Supreme Court’s decision in Arkansas Educational Television Commission v. Forbes (1998), in which the high court rejected a similar claim from an independent candidate who was excluded from a debate.  The Supreme Court explained that a television station’s reasons for exclusion need only be reasonable and viewpoint neutral.

6th Circuit says decision to exclude Libertarian candidate was viewpoint neutral

Applying that standard, the 6th Circuit explained that Patterson, like Forbes, had little chance of winning.  The appeals court said that Patterson’s exclusion was a reasonable, viewpoint neutral decision.   Patterson contended that he was excluded because he was a pro-life candidate.  However, the 6th Circuit found that argument unavailing because Senator McConnell, who was included in the debate, has pro-life views.

Patterson also alleged that KET committed viewpoint discrimination against all third-party candidates. The 6th Circuit rejected that argument, writing “that is not a theory of viewpoint discrimination, since not all-third party candidates have the same views.”

Ultimately, the 6th Circuit’s decision is a victory for television stations and the principle of editorial discretion.