Let the marketplace of ideas decide

When it comes to judicial rulings, the one issued Tuesday ordering MSNBC to put pack-trailing Democratic presidential candidate Dennis Kucinich on stage for its televised debate that night, had all the legal, constitutional, precedential and scholarly substance of a temper tantrum.

It amounted to a judge imposing his vague and irrelevant concept of fairness regardless of the law and the Constitution.

From the bench on Monday during a hearing on Kucinich’s litigation, Senior Judge J. Charles Thompson commented, “If the criteria was one set of rules and you changed the rules in the middle of the game so as to exclude somebody after having invited them, I’m offended by that.”

One of the specious arguments by Kucinich’s attorney was that the cable network had somehow breached a contract by disinviting the Ohio congressman to the debate after one of its representatives had called to invite him to participate.

In his written order, the judge not only declared that a contract existed but that Kucinich must be to allowed to participate or the debate must be canceled. Included in the judge’s rationalization was the contention that “the closeness of the date of the Nevada Democratic Party primary (it’s a caucus) election to the debate; the importance of caucuses to the process of nominating party candidates for the office of President of the United States; and the obligations of the media; and after weighing the relative harm to the Plaintiff, Defendant and the public, the Court finds that the harm to Plaintiff and the public if this Order is not granted outweighs any conceivable harm to Defendant from granting the Order.”

Obligations of the media? Any conceivable harm?

How about stomping on the First Amendment with both feet and kicking it under the couch? MSNBC is a cable network obligated to no one save its owners, viewers and advertisers. It could put on a presidential debate between Kucinich and a billy goat, excluding all the front-runners if it so desired. Its ratings would flatline, but the point is that it is no business of any judge how or whether it covers the news.

Fair and balanced, or arbitrary and capricious. It’s not the judge’s role to say.

Thompson’s order was issued at 8 a.m. the day of the scheduled 6 p.m. debate. By 5 p.m., the Nevada Supreme Court unanimously slapped down the ruling with a stinging rebuke.

In a footnote to the high court’s ruling, the justices singled out Thompson’s demand that the debate not be staged if Kucinich were not allowed to participate. “This portion of the district court’s order conditionally prohibiting the petitioner from broadcasting the debate is an unconstitutional prior restraint,” the justices stated.

If in fact there was a contract, which is a major stretch of the facts, the relief is not to prohibit the debate but to seek damages after the fact. The concept is well-described in William Blackstone’s 18th-century Commentaries on the Laws of England. He observed:

“The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”

During arguments before the Supreme Court, the attorney for the cable network, Don Campbell, argued that government should not be given the power to force any media outlet to give access to any candidate.

“Mr. Kucinich’s claim … undermines the wide journalistic freedoms enjoyed by news organizations under the First Amendment,” Campbell said in arguments filed with the court.

If any news medium chooses to completely ignore any candidate for any reason, it is well within its constitutional right to do so — whether it is fair or not. That is for the readers, listeners and viewers to decide, not some appointed judge.

The marketplace of ideas will decide. The people will vote with their eyes and ears. That’s why some newspapers have more subscribers than others and why some television stations have higher ratings than others. They have won the trust of the citizens, not been ordered to fulfill some judge’s concept of an obligation.

Thomas Mitchell is editor of the Review-Journal and writes on the role of the press and access public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com

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