Judge Orders Kucinich Included in Nevada Debate (UPDATED)
Dennis Kucinich sued to force NBC to include him in MSNBC’s Nevada debates and Senior Clark County District Court Judge Charles Thompson has issued an injunction ordering that he be included. NBC promises to appeal.
On the merits, I don’t see how Kucinich has a case. The basis on which a state judge could issue an order to a national television network on this matter is far from clear; broadcasting is under the jurisdiction of the Federal Communications Commission.
Moreover, it would seem obvious that a network has the right to invite whomever it wishes — and only those people — to participate in its programming. As Ed Morrissey notes, “the broadcast is the property of the network and it’s their decision to make.” Certainly, there’s no right to free airtime or to participate in debates.
Photo credit: New Hampshire Public Radio
UPDATE: Glenn Greenwald explains what happened here.
The complaint (.pdf) filed by Kucinich is simple and straightforward. He alleges that he had a binding contract with MSNBC once they offered and he accepted the terms of his participation in the debate, and that MSNBC’s refusal to allow him to participate constitutes a breach of that contract. He also alleges that his exclusion violates the mandates of Section 315 of the Communications Act, which requires broadcasters — who operate the public airways, i.e., airways which are public, not private, property — “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of public importance.”
This doesn’t explain why a state judge has jurisdiction to enforce a federal statute but it does present the facts of the case much better than the LAT story, which framed the dispute in terms of “fairness.”
The crux of Greenwald’s post is about conservatives screaming “judicial activism” every time a decision comes out that we don’t like. No doubt that happens a lot. More often than not, though, the problem is that most media outlets provide incredibly bad reporting on cases and then pundits react to that reporting rather than the case in controversy, about which we know little beyond what we’ve just read.
UPDATE: The Nevada Supreme Court overruled the order, “determining that the lower court had exceeded its jurisdiction in making the ruling. Additionally, the court ruled that Mr. Kucinich did not have an enforceable contract with the network.”