Judge Orders Kucinich Included in Nevada Debate (UPDATED)

Judge Orders Kucinich Included in Nevada Debate 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.”

FILED UNDER: Campaign 2008, Law and the Courts, Media, , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mike says:

    In a world where political speech is regulated (as somehow it is different from non-political speech) a ruling like this just doesn’t surprise me. The better question is why is political speech different than other speech under the Constitution? After all, the judge was just making certain that the money donated to the other candidates (in the form of free advertising vis a vis the televised debates) was even across the board… Somehow I see that as a quasi-logical (okay, I’m still not arguing it makes complete sense) with McCain-Feingold.

  2. Patrick T. McGuire says:

    NBC promises to appeal.

    Appeal! Hell, if anyone at NBC had any balls they would just ignore this judge and proceed with the broadcast in which ever way they chose. How is it that this country has become a nation of cowards, afraid to stand up for their rights?

  3. DavidL says:

    I echo Patrick, with two caveats.

    One tell Judge Thompson, directly, that thet they have utterly no intention to submitting his order.

    Two, arrest, Dennis Kuchinish for trespass should be attempt to gain entry without proper invitation.

    I lack faith in MSNBC to do either. May I please be proven wrong.

  4. Bithead says:

    On the merits, I don’t see how Kucinich has a case.

    It’s not about the facts in the case, James. My read is that it’s about bolstering his image of fighting ‘the man’. And of course the image that ‘the establishment’ is trying to silence him. The courts, by even consdieringt his case, give Kucinich the ammunition toward that end.

  5. Paul says:

    On the merits, I don’t see how Kucinich has a case.

    I don’t either, but James, wouldn’t it make sense to link to the decision first before we all assume to be experts in Nevada law?

    if anyone at NBC had any balls they would just ignore this judge and proceed with the broadcast in which ever way they chose

    Even if excluding Kucinich from the debate doesn’t actually violate any law, ignoring a court order of a Nevada state judge presumably would, with little or no benefit to GE/NBC in return. GE’s CEO isn’t paid to show his balls for the sake of doing so, he is paid to make the best decisions for the interests of the shareholders. Plus, it would seem to be highly ironic to espouse anarchy as a means of furthering a democratic process, the election.

  6. independent says:

    What about the property rights of the taxpayers who are funding GE’s federal contracts? Since Kucinich is mostly opposed to GE’s use of tax money, isn’t he basically standing up for the citizens’ property rights?

  7. Patrick T. McGuire says:

    Plus, it would seem to be highly ironic to espouse anarchy as a means of furthering a democratic process,

    Ignoring an invalid order from a judge who lacks jurisdiction is hardly espousing anarchy. It’s all about choosing whether to stand up for one’s rights or bending over to grab the ankles.

    As for GE’s CEO making the best decision for his company, I somehow doubt that allowing a pompous ass in a black robe to decide the content of a national broadcast is a wise operational decision.

  8. childo says:

    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.

    Did you even READ the decision? Kucinich had a CONTRACT with MSNBC to appear on the debate. He claimed MSNBC breached that contract.

    State judges clearly have jurisdiction to enforce contracts that are to be performed in that state. In certain circumstances (i.e., when damages would not be a sufficient remedy) specific performance can be awarded.

    You just hate the result without making any effort to understand it or the reasoning or legal theories behind it.

  9. Paul says:

    Ignoring an invalid order from a judge who lacks jurisdiction is hardly espousing anarchy.

    The judge does not “lack jurisdiction” over persons located in Nevada, even if they do lack jurisdiction over the broadcast itself (which, again, is hard to comment on when I can’t find the court order to read). Nor is the court’s order “invalid” just because it might be wrong. The way to respond to judicial decisions one thinks is incorrect is to appeal them, not to engage in contempt of court, a punishable offense. As a GE shareholder myself, I’d happily argue that neither the state OR federal government should have any right to tell them what they can and can’t show. But constitutional rights are overrated in societies where people are free to pick and choose on their own which legal authorities they want to ignore on the claim that such authority is invalid or pompous.

  10. yetanotherjohn says:

    I would include him. Then not ask him a question, keep his microphone off and never put the camera on him. Maybe even put up a little mini essay on free speech.

    Following the logic of this, if any TV news show doesn’t have every candidate, why couldn’t they be sued to force an appearance.

    From a republican perspective the more air time Kuchich gets the better. From an American perspective this is just wrong. Even when we had the “fairness doctrine” requiring equal time, there was an exception for news programming. Of course if you made the argument that the democratic debates aren’t news but entertainment…

  11. JC says:

    The facts don’t matter at all to you people, do they?

    The judge “lacks jurisdiction”? Do you have any idea how wrong that is?

    For Pete’s sake, people. He had a contract claim, which is a matter of state law. He had a claim under federal law which is allowed to be brought in state court. If NBC had wanted to, they could have removed the case to federal court.

  12. Hal says:

    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.

    Man, that’s like a poor workman blaming his tools for the crappy job he did. I thought the whole point of blogging vs MSM was to dig deeper and figure out what’s going on rather than just taking what they say at face value.

    Geebus.

    Does explain an awful, awful lot, though.

  13. legion says:

    Wow. A lot of conservative commenters here really have their heads up their butts. A state judge’s authority of the FCC is highly questionable; fortunately, as childo noted, that’s _not_ what this is about. Yes James, the network can invite whomever they want, but once they do invite someone, their ability to rescind that invitation is a valid legal question that the judge here very much does have authority over.

    Also, I feel really sorry for idiots who say things like:

    Hell, if anyone at NBC had any balls they would just ignore this judge and proceed with the broadcast in which ever way they chose. How is it that this country has become a nation of cowards, afraid to stand up for their rights?

    Ummm… that would be the part where this is “… a nation of laws, not men.” Openly disobeying a judge’s order, especially when your own knowledge of law & understanding of the case is clearly laughable, is most definitely anarchy. As well as stupid, and criminal too. It’s funny how judges are only ‘activists’ when they make decisions you don’t like. No, wait. I mean pathetic.

  14. Hal says:

    Openly disobeying a judge’s order, especially when your own knowledge of law & understanding of the case is clearly laughable, is most definitely anarchy

    Hey, that’s why they call it anarcho capitalism.

  15. Ed says:

    “…then pundits react to that reporting rather than the case in controversy, about which we know little beyond what we’ve just read.”

    And what does that make you? Another one of those dumb pundits?

    But even after the assist from Greenwald, you are still hopelessly wrong on two points. Firstly, the judge here might simply have ruled that NBC had to honor a contract. He might not have addressed the question around the Communication Act. I don’t know. But have you seen the ruling? Do you know the answer here? Or must we return to the dumb pundit question?

    And secondly, state judges are competent to rule on federal matters. And they do so often. “Concurrent jurisdiction” dude, look it up.

    [Ps. What might have provided you with a clue to the court’s competence to look at the case was the fact NBC, with their average Joe lawyers, did not apparently contest the court’s jurisdiction. Leaving aside your favorite jokes, expensive lawyers are also paid to check the obvious. It’s not a bad habit to get into.]

  16. Paul says:

    As the details of the actual decision became available from later posters, this is exactly what I meant earlier by “wouldn’t it make sense to link to the decision first before we all assume to be experts in Nevada law.”

    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.

    I agree with Hal’s comment that we should all do a better job learning the facts of cases before reaching conclusions. The MSM, and even worse, TV dramas, present courts as basically just a bunch of people who try to make up the law to decide what is “fair” like Solomon splitting the baby. That simply isn’t how 99+% of the federal judges in this country operate. I say this from personal experience of clerking for a federal judge appointed by Reagan, and working with that judge participating in circuit court panels with judges appointed by Presidents across the spectrum.

    The MSM’s and blogosphere’s uninformed armchair criticism of the judicial process does have a consequence, as I believe it contributes to the American mentality that you can sue people anytime there is something you don’t like, without regard to whether you have an actionable legal claim against them. We all pay for frivolous lawsuits that weigh down American businesses and our courts. Obviously it isn’t the only cause, but we don’t need to feed that bonfire even more.

  17. JC says:

    This doesn’t explain why a state judge has jurisdiction to enforce a federal statute

    People: this isn’t that difficult of a concept. State courts have jurisdiction over federal claims all the time. In fact, it wasn’t until the late 1800s that ANY courts but state courts had jurisdiction over such claims.

    In fact, not only are state courts ALLOWED to hear federal claims, they are sometimes REQUIRED to do so.

    It’s understandable if you don’t know the ins and outs of jurisdiction in this country. There’s no reason why most people should, if they don’t have to deal with it. But at least refrain from pontificating about jurisdiction when you don’t have the foggiest idea what you’re talking about.