Media and election law

¶ … Right to Vote, Elections, and the Media

An Overview of the Right to Vote

The right to vote is a right granted by the Constitutional Amendments to all United States citizens over the age of 18. The right to vote gives U.S. citizens the right to vote in all federal, state, and local government elections. The right is legislated in different Amendments to the U.S. Constitution and each Amendment pertains to reapportionment of congressional districts, race, age, or gender. For example the text of the Fourteenth Amendment, as it pertains to the right to vote reads, "Representatives shall be apportioned among the several States according to their respective numbers…. The basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." U.S. Const., amend. XIV, sec. II. Next, the Fifteenth Amendment, prohibits the states from denying a person to vote based on her race or color. The text of the Amendment reads, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const., amend. XV, sec .I. In the same manner, the right to vote is discussed in the Nineteenth Amendment as it pertains to the gender of the voter. The text reads as follows, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex." U.S. Const., amend XIX.

As the law developed and the country changed, the voting laws changed as well. The Twenty-Fourth Amendment to the U.S. Constitution eliminated the obligation to pay a poll tax as a condition to vote.

The text of the Amendment reads, "The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax." U.S. Const., amend XXIV, sec. I.

The final Amendment to the U.S. Constitution regarding the right to vote is the Twenty-Sixth Amendment. This Amendment granted the general right to vote to all U.S. citizens over the age of 18 years. Prior to the Twenty-Sixth Amendment, the right to vote existed and different groups were included in this right to vote, but in the other Amendments addressed, the right to vote was not explicitly stated for all U.S. citizens. The text of the Twenty-First Amendment clearly and plainly reads, "The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age." U.S. Const., amend XXI., sec. 1. As the Amendments indicate, the right to vote changed over the years. Since the Constitutional amendments were enacted, the right to vote has continued to evolve and laws pertaining to voting have developed as a result. The purpose of this report is, not only to right to vote, but how the laws, regarding voting, elections, and the media interact with one another. Following is a summary of these fundamental Amendments that are central to the right to vote in the United States.

2. Summary of the Voting Amendments

Amendment

Year Enacted

Summary

14th

Provided for the requirement that voting districts be apportioned according to population; set the voting at 21 years for all males

15th

Outlawed using race as a prohibition to voting

19th

1920

Granted women the right to vote

24th

1964

Outlawed the poll tax

26th

1971

Granted all U.S. citizens over the age of 18 the right to vote. Lowered the voting age.

3. The Principle of One Man One Vote

The principle of one man, one vote limit's the right of a citizen to vote one time per election and prevents dilution of one's vote by ensuring that the voting districts are equally populated. If one voting district's population is disproportionate to another, the Congress must reapportion or reassign the voting districts to make the more equal. U.S. Const., art I, sec. 2. The one man one vote principle was addressed by the Supreme Court in the case of Reynolds v. Sims, 377 U.S. 533 (1964).

In this case, the appellees (originally the plaintiffs) alleged discrimination by stating that their districts had grown considerably more than the surrounding districts. The appellees requested that their voting districts be reapportioned according to the State of Alabama Constitution which provided that "apportionment of seats in both houses of the Alabama Legislature should be on a population basis." All parties involved agreed that the situation as it stood violated the Equal Protection Clause of the Fourteenth Amendment in that the petitioners' votes were diluted by the overpopulation in their districts. The Equal Protection Clause of the Fourteenth Amendment requires that "both houses of a state legislature be apportioned on a population basis and it does not mean that States cannot adopt some reasonable plan for periodic revision of their apportionment schemes." Still, the legislature failed to reapportion its district accordingly.

The issue that the Court decided was whether the District Court by ordering the Alabama legislature to reapportion itself went beyond its powers as granted by the U.S. Constitution. The Court held that the reapportionment of both houses of the Alabama legislature, which was ordered by the district that was previously, was an appropriate and well-considered exercise of judicial power since the legislature had failed to reapportion the voting districts according to the population change. The Court with its ruling confirmed the Constitutional principle that the congressional representatives of each district be apportioned according to the population of the district. In other words, the larger districts will be entitled to a proportionate amount of representatives in Congress. In this way, the dilution of the vote principle is avoided.

4. The Voting Rights Act of 1965

The Voting Rights Act of 1965 is a law enacted at the end of the Civil Rights Movement.

The following provisions are included in the Voting Rights Act: 1) Prohibition of any election law that denied or obstructed voting rights based on race or color. 2) Suspension of all literacy tests. 3) Prohibition on the enforcement of new voting rules or laws that would continue discrimination. 4) Assignment federal poll workers to list qualified applicants to vote and monitor polls. (Laney 11). This Act was designed to curtail the widespread discrimination that was occurring regarding African-American voting rights. The practices that were in place prior to the Voting Rights Act, literacy tests for example, resulted in restricting access to the polls by African-Americans because a disproportionate number of African-Americans were unable to score the required standard on the literacy tests. The Voting Rights Act of 1965 outlawed current literacy tests and as well as any discriminatory practices that could be implemented in the future. The following chart summarizes the percentage of eligible registered African-American voters in the years preceding the Voting Rights Act of 1965 and in the years following the Voting Rights Act of 1965.

5. Percentage of Registered African-American Voters before and After the Voting Rights Act

State

1956

1960

1962

1964

1966

1968

Alabama

11%

13.7%

13.4%

23%

51.2%

56.7%

Arkansas

36%

37.3%

34%

49.3%

59.7%

67.5%

Florida

32%

38.9%

36.8%

63.8%

60.9%

62.1%

Georgia

27%

29.3%

26.7%

44%

47.2%

62.1%

Louisiana

31%

30.9%

27.8%

32%

47.1%

59.3%

Mississippi

5%

5.2%

5.3%

6.7%

32.9%

59.4%

No. Carolina

24%

38.1%

35.8%

46.8%

51%

55.3%

So. Carolina

27%

15.6%

22.9%

38.7%

51.4%

50.8%

State

1956

1960

1962

1964

1966

1968

Tennessee

29%

58.9%

49.8%

69.4%

71.7%

72.8%

Texas

37%

34.9%

37.3%

57.7%

61.6%

83.1%

Virginia

19%

22.8%

24%

45.7%

46.9%

58.4%

All Southern States

24.1%

29.1%

29.4%

43.1%

52.2%

62%

(Garrow 11, 19, 189).

Based on the above summary, the total of registered African-American voters increased after the passing of the Voting Rights Act of 1965 from 24.1% in 1956 to 62% in 1968. During these years, the percentage of African-American voters increased in every state -- in some cases it more than doubled, as in the case of North Carolina. In some states, it increased by five times as in the case of Alabama.

One interesting observation to be made is that in some states, in light of the progression of the Civil Rights Movement, the percentage of registered African-American voters did not increase steadily from the years of 1956 to 1968. For example, in Louisiana in 1956, the percentage of African-American voters in 1956 was 31% but had decreased in 1962 over 3% to 27.8%. Arkansas showed a similar decrease during this time of 2%, Georgia of approximately 1%, and South Carolina of over 4%. Each of these states and all the other's listed experienced a drastic increase in African-American registered voters after the Voting Rights Act of 1965 was passed, however the reasons for these decreases in registered voters prior to the Voting Rights Act is unknown. One hypothesis is that many African-Americans yielded to the intimidation of the time and simply did not want to risk their safety and the safety of their families.

6. Poll Taxes

A poll tax is a tax of a fixed amount charged each person to register to vote. (Webster's New World Law Dictionary.) as discussed previously, poll taxes were outlawed by the Twenty First Amendment. The practical effect of poll taxes at the time they were in effect was to prevent African-Americans from voting, as addressed by the Supreme Court, in the case of Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).

In this case, the appellants brought the case before the Court in order to have Virginia's poll tax declared unconstitutional. The Supreme Court reversed the Court of Appeals decision who had ruled against the appellants and cited to the following in their opinion: 1) "Once the right to vote has been granted, lines which determine who may vote may not be drawn so as to cause invidious discrimination, 2) Fee payments or wealth, just as race, creed, or color, are unrelated to the citizen's ability to participate intelligently in the electoral process, 3) the interest of the State, when it comes to voting registration, is limited to the fixing of standards related to the applicant's qualifications as a voter, lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored, and 4) Classifications which might impinge on fundamental rights and liberties - such as the franchise - must be closely scrutinized."

This decision by the Court, decided during the Civil Rights Movement, was a significant evolution in the right to vote for African-Americans. As mentioned in its decision, the Court outlawed any method, not just the poll tax, that would result in discrimination regarding the right to vote granted to citizens under the U.S. Constitution. The Court went further to reason that the requirement of wealth or fee payments were a form of discrimination just as those based on race, creed, or color would be. The Court continued by defining what the interest of the state would be to determine the qualifications of the voters, and that wealth property or creed would not be favored as qualification. Finally, the Court commented that conditions such as these would be closely scrutinized and disfavored by the Court. This landmark case in theory ended many of the obstacles that had confronted African-Americans and their right to vote.

7. Gerrymandering

Is the act of diving voting districts to give a candidate political party a large number of votes in one district while giving a while giving candidates opposition less favor. (Merriam-Webster.) in the past gerrymandering occurred both in terms of race and politics. Racial gerrymandering was the act of dividing the voting districts in terms of voter's races. This act was addressed by the Supreme Court in the case of Miller v. Johnson, 512 U.S. 622 (1995).

In this case, the state of Georgia had submitted to the U.S. Department of Justice, pursuant to the Voting Rights Act of 1965 to reapportion its voting districts. These voting districts as a result would be minority-majority districts and that these two districts would not be fairly represented. On the third request to the U.S. Department of Justice, the state approved the plan. The election resulted in three African-American candidates being elected to office and the white voters brought suit. The District court found that the way that the voting districts were apportioned was intended to include areas that included minority neighborhoods.

The issued examined by the U.S. Supreme Court is whether the new districts were in violation of Fourteenth Amendment and the Voting Rights Act, discussed above. The Court held that the new voting districts as created violated the both laws. The Court reasoned that the design of the voting districts was unnatural and obvious with the primary purpose of bringing black voters into the voting districts. The Court reasoned that were race is a factor in apportioning voting districts; the government must demonstrate a compelling interest for this method of division. The Court held that the government had not demonstrated a compelling interest for this method of dividing the voting districts and their actions were therefore illegal.

Political gerrymandering, similarly, is a method of dividing voting districts to give a political candidate favor over her opposition. This issue remains very current and has recently been decided by most recently in 2006 by the U.S. Supreme Court in the case of League of Latin American Citizens v. Perry, 548 U.S. 399 (2006). In this case, the state of Texas passed a redistricting plan that voter's claimed diluted racial minority voting strength and gave political partisanship to a particular voting district. The redistricting plan was originally upheld by the Court of Appeals. (Oyez).

The Supreme Court examined the issue of whether the Texas congress violated the Voting Rights Act of 1965 and the one man one vote principle by creating voting districts based on the current U.S. census and that resulted in a partisan advantage. The Court held that the redistricting plan did not violate the Constitution, but that it did violate the Voting Rights Act of 1965 because it was drawn in such a way as to deny Latino voters the candidate of their choosing. The Court ruled that nothing in the Constitution prohibited the Texas congress from redistricting their voting districts as many times as they wanted. The Court ruled that the only requirement was that congress redesigned the voting districts once every ten years. (Oyez)

With this ruling, the Court re-iterated its ruling in the Miller v. Johnson case nine years earlier. Here, the Court examined the effect that the redistricting plan had on the Latino voter's rights and ability to elect a candidate of their choosing. Redistricting plans will be examined for their effects on the citizen's rights to vote for a candidate and if it is found that a plan diminishes a citizen's right to elect a candidate, it is likely to be disfavored by the Court.

As these cases demonstrate, Courts have been reluctant to uphold any government action that divides voting districts and creates favor or disfavor in terms of race or political voting strength. These issues have arisen frequently over the years, and as these two cases, demonstrate still come before current courts. However, because the right to vote is a fundamental right, courts have been reluctant to rule in favor of any government plan that creates favor or causes prejudice towards a certain group or political party. The standard of review for this classification of cases, those that concern a fundamental right, is strict scrutiny and is the most stringent standard of review that exists.

8. Standards of Review

The standard of review that a court uses is how much scrutiny a court gives a particular case -- in other words how narrowly or loosely a court will review a case. The standard of review arises under the Equal Protection Clause of the 14 Amendment which reads that, "No State shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend XIV. The Fourteenth Amendment applies here because if a law that is implemented by the government denies a person equal protection of the laws, the law will be strictly scrutinized by the court. An example of a law that would be given strict scrutiny under the Fourteenth Amendment would be a law that denies a person of a fundamental right such as the right to vote or discriminates on the basis of race, national origin, religion, or alienage. (Linder).

The standards of review are divided into three categories -- strict scrutiny, intermediate scrutiny, and rational basis. (Linder). If a law is given strict scrutiny, the government must prove that it has a compelling interest for passing the law and that the law is narrowly tailored to meet this interest. (Linder) for example, in the case of League of Latin American Citizens v. Perry, 548 U.S. 399 (2006), the court examined the method of reapportioning districts by the state of Texas. Because this reapportioning scheme had a negative effect on the voting rights of the Latino citizens, the Court strictly scrutinized the law. Not only was the law affecting the voting rights, but it was also affecting a minority class which is another reason that a court will review a law under strict scrutiny. Since this act of the state of Texas involved a burden on the fundamental right to vote, the state of Texas had to prove that they had a compelling interest for the re-apportioning scheme and that the law was narrow enough only to accomplish this purpose which they were unable to do. Traditionally, the strict scrutiny standard of review has been difficult to meet and laws burden a fundamental right or discriminate on the basis of race are usually declared invalid by the court. Although, there have been times in which the state has met this burden as it did in the case of Munro v. Socialist Workers Party.

Another case decided by the Court that used the standard of strict scrutiny is the case of Munro v. Socialist Workers Party, 479 U.S. 189 (1986). In this case, the Court examined the issue of whether a law enacted by the state of Washington requiring a minority party candidate to Receive at least 1% of the votes in a primary election before being permitted to participate in the general election is constitutional. The Court examined whether this law violated the First and Fourteenth Amendments. The state enacted an election law in 1977 changed the way that candidates qualified to be placed on the ballot. Prior to the law, the candidate could be placed on the ballot by receiving a nomination from their political party, however, after the 1977 law, the State required that the candidate participate in the primary election and receive at least a 1% vote in order to qualify as a candidate for the general election. The Court of Appeals declared that this requirement was unconstitutional. The Supreme Court, in review of the decision reversed the decision and declared that the law was constitutional.

The Supreme Court used reviewed the case under the strict scrutiny standard, commenting that "restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively, Williams v. Rhodes, 393 U.S. 23, 30 (1968), and may not survive scrutiny under the First and Fourteenth Amendments."

However, the Court in holding that the Washington state law was constitutional held that there was no "litmus paper test" for deciding these cases and that states had the discretion to condition access to the general election ballot by a minority party or independent candidate by requiring a showing of support by potential voters who will vote in the election. The court further reasoned that the compelling state interest in this case was to require a showing of support by the voters for potential candidates for office and that if nothing else it will avoid confusion, deception, and frustration in the democratic process and that the state of Washington did not deny the candidate a position on the ballot altogether -- which would have been a violation of his rights -- the state merely regulated the process.

Another standard of review that courts use is the intermediate scrutiny. This is a less stringent standard of review by the court and requires that the government prove an important state interest and that the law is substantially related to that interest. (Linder.) This standard applies to laws that involve gender and illegitimacy. Because the burden of intermediate scrutiny is a lower standard of review than strict scrutiny, more law will pass this standard more frequently than strict scrutiny.

The third standard of review used by courts is rational basis. This is easiest burden of the three standards to meet. Here the law only need to be shown as rationally related to a legitimate state interest. (Linder). This standard of review is applied to all other cases that do not involve the classifications or the rights addressed in the previous two standards of review. It is therefore the most frequently applied standard of review.

9. The Right to Vote Today

Over forty years after the Supreme Court decided the Harper v. Virginia Board of Elections case which outlawed poll taxes and other discriminatory practices regarding the right to vote, there are still measures being used to interfere with one's right to vote. In 2006, several forms of voter intimidation targeted at Latino voters were suspected as an effort to reduce the Democratic voters. For example, in Orange County a fraudulent letter was sent to registered voters who were naturalized citizens to warn them they couldn't vote. (Cavala). The letter was sent to registered voters with Latin surnames and read "that if your residence in this country is illegal or you are an immigrant, voting in a federal election is a crime that could result in jail time…" (Whiteside).

Prior to this in 1994, the now current mayor, Curt Pringle, who was then an Assembly candidate, hired guards in an effort to intimidate Latino voters. (Cavala). The scheme was to induce the Latino voters to believe that the guards were immigration officials in an effort to get them to leave the polls and not vote. The Republican Party was required to pay a fine and Pringle won the election. (Cavala).

In the Harper v. Virginia Board of Elections case, the U.S. Supreme Court ruled that once the right to vote has been granted the lines determining who can and cannot vote must not be based on "invidious" discrimination and that it was the government's duty to determine the voter qualifications based on factors that did not include race, creed, or color. In this way, the law prohibits intimidation based on race, creed, or color. However, as the two modern incidents show, adherence the Harper case is still a work in progress. In both of these incidents people of color were targeted and singled out regarding their right to vote with the purpose of discouraging them from casting their votes. Over forty years later, the concept of discrimination at the polls still plaques our democratic system.

10. The Election Law and the Media

Freedom of the press, like the right to vote, is a guaranteed right under the First Amendment to U.S. Constitution. The text of the First Amendment reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." U.S. Const., amend. I., art. III. Like the right to vote, the freedom of the press as a fundamental right is a right that if infringed on by the government, would be subject to strict scrutiny as discussed above. In the past, courts have been reluctant to uphold any law infringing on the Freedom of the Press and the strict scrutiny standard as it relates to Freedom of the Press cases has been difficult to overcome.

For example, the U.S. Supreme Court ruled in the case of Detroit Free Press v. Ashcroft, 303 F. 3d 681 (6th Cir. 2002), that "The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment "did not trust any government to separate the true from the false for us." While the court in Detroit Free Press examined the issue of whether press coverage should be permitted in a deportation hearing, the broader issue of limitation of the press with regarding what the people are permitted to learn or know. With ruling, the Supreme Court established the right of the people to have free access to information through the press while at the same time holding that the Framers did not intend for public knowledge to be limited by the government restricting access to the press.

The perimeters for freedom of the press established by the Detroit Free Press case, is that the for the freedom of the press is the press has a right to publish truthful matters that are of a public concern. This standard is worth observing in that it does not establish an absolute freedom of the press to broadcast whatever information that it chooses to broadcast. The press is not permitted to publish information that it knows is false and doing so can subject the reporter to a civil law suit.

The Supreme Court addressed these issues in the recent case of Bartnicki v. Vopper, 532 U.S. 514 (2001).

The issue addressed here was the validity of an intercepted telephone call regarding a public issue. Specifically, a private phone call made by the petitioner was intercepted by an unknown person who was not acting on behalf of the respondents. The petitioner was a union chief in the midst of bargaining negotiations and made the phone call to a colleague regarding the timing of a potential strike. The respondent was a radio commentator who had been critical of the union in the past and played the tape on his show. As a result, local newspaper published the information and another station broadcast the tape. The petitioners brought suit on the basis of the disclosure of the taped conversation.

The issue examined by the Court is whether the interception and the subsequent disclosure of the contents of the phone conversation violated the First Amendment. In other words, whether the press may be prohibited from publishing information that it obtained lawfully based on the fact that the information was obtained unlawfully from another. The Court balanced the method in which the press obtained the information with the fact that the issue obtained in the recording was or could be considered a matter of public concern that is protected under the First Amendment. The Court decided that, while the interception of the conversation was unlawful, the subsequent transferal of the tape to the Press and its publication was protected of the First Amendment. In its decision, the Court cited to New York Times Co. v. United States, 403 U.S. 713 (1971) where the press was able to publish information that was stolen by a third party, but was of great public concern.

In Bartnicki, the Court reasoned based on the fact that that the information obtained was obtained unlawfully through an unknown interception and balanced this with the public's right to know information that is of great public concern. The Court cited the New York Times case where the right of the press to publish information that was of great public concern from documents stolen by a third party was recognized. In the New York Times decision, the Court focused on the character of the stolen documents' content and consequences of public disclosure. The Court appeared to be concerned with the connection that the stolen documents had to the threat of national security.

In its ruling in Bartnicki, the Court affirmed the decision that the publication of the intercepted phone call was protected by the First Amendment. The Court reasoned that in these cases the right of privacy gives way to the interest of public concern. In the Bartnicki case the Court held that the interest of the public in knowing about a possible strike outweighed the privacy of the phone call. Furthermore, the Court reasoned that a stranger's illegal was not sufficient to remove the First Amendment shield from speech about a matter of public concern.

The Bartnicki case illustrates a number of important principles regarding the limitations and perimeters of the Freedom of the Press. In this case, the press was given broad rights regarding publishing information that is truthful and is a matter of public concern. The Court clearly balanced the right of the public to know information that pertained to them with the privacy of the individual who conveyed the information. Its decision upholds the press's freedom to use and publish information it obtained legally, and that constituted a matter of public concern. Interestingly enough, the fact that the press obtained the information lawfully from someone who obtained it unlawfully did not limit the press's freedom to publish the information.

This ruling presents, and the principle of matters of public interest in general, and interesting dynamic regarding the media and elections.

11. Press Coverage of Elections

With the following discussion in mind, the Press and the media have a First Amendment right to cover all elections and campaigns of the political candidates, but the First Amendment does not require broadcasters to accept political advertisements or to advertise the political debates held by candidates. Some would argue that this violates the political candidate's First Amendment rights, but more than that, the public would argue that the public right to know information of public interest is violated. The case of Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), illustrates this principle and the issues surrounding it.

In the Forbes case, the Arkansas Educational Television Commission (AETC) was a public television broadcaster that sponsored a broadcast between two major party political candidates. The AETC subsequently refused to permit Forbes, an independent political candidate the right to participate in the debate. Forbes then filed suit against the AETC claiming that his First Amendment rights were violated by the denial by the AETC to allow him to participate in the debate. The case was reviewed under strict scrutiny and the Supreme Court held that the exclusion of Forbes was within the right of the Press under the First Amendment.

The Court reasoned for its decision that the public debate did fall within the category of a public forum, but one exception was applicable to this case. Since the candidate's speech is not the speech or the views of the television network or of the public, the Court addressed the issue as to whether the candidate's speech was broadcast from a public or non-public forum.

The Court held that the debate location was considered a non-public forum because the AETC did not make its debate access open to general candidates who were running for office. In other words, it was not an open forum with open access to any candidate running for office who desired to advertise its political views.

The Court went on to reason that even thought the purpose of the debate is to allow the candidates to express their views to the public, the AETC reserved access to the forum to candidates for a particular seat, and then made determinations as to which of the eligible candidates would participate in the debate. Permission to participate in the debate, in other words, was made on a candidate by candidate basis rather than allowing free access to all political candidates or to the public in general. The Court reasoned that such "selective access," without any indication of any other designation for open public use, does not create a public forum. The Court reasoned that the exclusion of Forbes was a viewpoint neutral exercise of journalistic discretion and was well within the First Amendment rights of the AETC.

With its ruling in the Forbes case, the court gave the Press the right not to broadcast or to advertise political candidates who show little public support. Arguments can be made that this violates the right of the political minority candidate, not regarding elections, but regarding the Fourteenth Amendment and Equal Protection. Recall that the Fourteenth Amendment provides that no person shall be denied equal protection of the laws. The political candidate, such as Forbes, will argue that by his exclusion, he is being discriminated against because he is a candidate with a smaller showing of support than the major political candidates. While litigation on this issue is possible, the Court is likely to find in favor of the government. A case such as this would be analyzed under the strict scrutiny standard and the government will be required to show that there is a compelling interest for excluding the candidate or not permitting his views to be heard. As the Court has ruled in precedent that if nothing more, the compelling state interest regarding candidates with minority support is to avoid public confusion and possible deception that can occur during the election process.

Even if the candidate were to make a First Amendment argument on this issue, the Court will likely reach the same result for the same "compelling state interest" cited to in the Munro case.

12. The First Amendment and Public Forums

The Court in the AETC case based its ruling on the concept of public v. non-public forums and the concept is central to the rights of political candidates to be broadcast during elections and the media coverage that they are entitled to. The general rule is that if the speech is delivered from a public forum, then the candidate has a First Amendment right to be heard. The case of Cornelius v. NAACP Legal Defense and Education Fund, Inc. 473 U.S. 788 (1985), addresses the issue of public and non-public forums. The case involved an Executive Order that

Limited participation in a charity drive, the Combined Federal Campaign (CFC) which was directed at federal employees. The drive, as part of the Executive Order permitted non-profit charitable agencies that provided direct health and welfare services to individuals and their families. The Order specifically excluded legal defense and political organizations.

As part of the campaign, the participating organization were permitted to distribute literature for the purpose of soliciting donations through a charity drive. The literature was disseminated to federal employees and the undesignated contributions were distributed on a local level to participating organizations. The petitioners challenged their exclusion from the charity drive on the grounds that the Executive Order violated their First Amendment right to solicit charitable contributions.

The Supreme Court reasoned that the context of the literature of the CFC is protected speech under the First Amendment in that it informs the public of its existence and goals while the public's response by delivering a donation is and expression of a showing of support. In this way, the literature serves the purpose of conveying ideas to the general public.

The Court, however, held that the government's actions in limiting the distribution of campaign literature did not violate the First Amendment rights of the agencies because the forum in which the literature was delivered was a non-public forum.

The Court reasoned that, in this case, the CFC rather than being a federal workplace, is the forum for which ideas is exchanged. It follows that the forum in which the literature was being distributed became a non-public forum because of the government's regulation of the distribution of literature. In determining whether a forum is public or non-public, the Court stated that the public access to the forum should be considered and whether the forum is open to the public giving the public free access. Free public access was not the circumstance in this case. Public access to the forum was limited and it became non-public.

The government cited to a compelling interest for limiting the access to the CFC -- to minimize the disturbance of federal employees through the solicitation while on duty. The Court held that this justification presented a viewpoint neutral justification for the order and as a result did not violate the petitioners' First Amendment rights. The First Amendment does not forbid a viewpoint neutral exclusion of speakers who would disrupt a non-public forum and hinder its effectiveness for its intended purpose.

The Court's decision here conceivably narrows a candidate's rights regarding distribution of campaign literature. The holding means that political candidates can be prohibited from distributing campaign literature if the literature is being distributed in a non-public forum. This holding is analogous to the Court's holding in the AETC case in that the candidate was not entitled to participate in the debate because the debate was being broadcast from a non-public forum. Here, a candidate is not entitled to distribute campaign literature in a non-public forum and neither of these situations violate the candidate's rights.

Still, it is worth examining the limitation that is placed on the public's right to access of information of public interest. Through this line of cases and the public / non public forum holdings, the Court has carved out exceptions to the public's access to information under the First Amendment Freedom of the Press. What this means is that if the speech occurs in what is a non-public forum, the public does not have a First Amendment right to access of this information if distributed from these forums because the candidate does not have a right to distribute information from these forums. As controversial as it seems, if the government can meet the compelling interest for regulating the speech in a public forum, as it did in the AETC and Cornelius cases, and can demonstrate that these regulations are viewpoint neutral, then the regulation will likely be upheld. As a result, candidates' rights to campaign and the public's right to access to information are not without limitations.