NBC To Appeal Judge Over Kucinich Debate Participation

Update: Kucinich is out. Here's the opinion.

Bump and Update: The Nevada Supreme Court will hold oral argument (pdf) at 1:30 PT. Issues: State vs. federal jurisdiction and "the absence of state court jurisdiction to hear a claim for breach of contract."

Bump and Update: NBC says it will appeal.

NV. Judge Says No to Debate Without Kucinich

Dennis Kucinich scores a win in Nevada. A judge ruled today that the MSNBC Democratic debate tomorrow night cannot go forward unless Kucinich is allowed to participate.

Kucinich, whose position on issues most closely matches my own, is a necessary voice. He knows, as do we all, he can't win. But he gets people thinking. And that's a start to real change.

Congrats, Mr. Kucinich. I look forward to hearing your remarks tomorrow night.

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    What's the Legal Basis? (5.00 / 1) (#3)
    by BDB on Tue Jan 15, 2008 at 01:01:19 AM EST
    I haven't been able to find a link to the decision and the news articles I've read simply refer to "fairness" which I don't think is sufficient reason for a judge to rule that MSNBC has to let Kucinich in.  Someone at mydd suggested that MSNBC had gotten in trouble for violating its own guidelines, but again, I wasn't aware that such rules created an enforceable legal right.  So without the opinion, I'm just confused.

    FWIW, MSNBC is appealing.

    FWIW, MSNBC is appealing. (none / 0) (#5)
    by Abdul Abulbul Amir on Tue Jan 15, 2008 at 07:22:06 AM EST

    Thats good.  What gives this judge the power to decide who gets invited to a debate?  If he has that power, then why not Chomsky, Dennis Miller, John Madden, and Britney as well?  It would be nore fun to watch.

    The nerve of that guy (none / 0) (#6)
    by Rojas on Tue Jan 15, 2008 at 08:02:54 AM EST
    I mean, if there was any doubt, what was left of "public interest" went out the window with clintons telecommunications Act of 1996. MSNBC bought it fair and square. Let the maketplace decide. All Britney, all the time.

    Too Soon (none / 0) (#8)
    by BDB on Tue Jan 15, 2008 at 10:28:27 AM EST
    I still haven't seen a written opinion, so I think it's too soon to tell if it's legally correct or not, but the reports certainly don't provide what sounds like a sound legal basis.  Of course, in my experience, many reporters don't know even the most elemental basics of our judicial system.  

    "public interest" (none / 0) (#10)
    by Abdul Abulbul Amir on Tue Jan 15, 2008 at 12:36:24 PM EST

    Is code for letting those powerful in political positions do whatever they feel like as long as they merely assert that it is in the publec interest.

    If its so important for Dennis to be in a debate, there is nothing stopping you, or Dennis, or the judge that knows just who in the country should and should not be in any particular debate from holding your own debate and inviting whoever you want.  

    If he has the power to order Dennis in on the grounds of public interest, does he have the power to order Edwards out on the same grounds?


    As if those on the other side (5.00 / 1) (#16)
    by jondee on Tue Jan 15, 2008 at 01:21:26 PM EST
    of the aisle -- whose presence the Shah's rankest one never objects to -- DONT claim to do things in the public interest.

    Maybe judges shouldnt have any power to ever order anything at all. We'll just let those who can pay for commercial time decide which ideas get an airing and which ones dont.


    Well of course (none / 0) (#23)
    by Abdul Abulbul Amir on Tue Jan 15, 2008 at 02:00:42 PM EST
    Well of course everyone claims that.  That is the reason that arbitrary power should not be given to judges or the ececutive.  Do you understand the concept of a government of laws?

    Take it up with (none / 0) (#24)
    by jondee on Tue Jan 15, 2008 at 02:07:44 PM EST
    the too-liberal-for-your-taste Judge; apparently you and he have a differing interpretation of the law.

    And I'd forgotten about all those posts of yours protesting all those "arbitrary exercises of power" by the executive.


    What's wrong with... (5.00 / 1) (#7)
    by kdog on Tue Jan 15, 2008 at 08:22:55 AM EST
    an "on the ballot, in the debates" rule?  

    I'm a little tired of corporate media monoliths deciding whose message is worth hearing.  They can allow the fringe candidates in since they get use of the public's airwaves...that's a fair deal.

    Thats a fine rule (none / 0) (#11)
    by Abdul Abulbul Amir on Tue Jan 15, 2008 at 12:41:12 PM EST

    Thats a fine rule for you if you want to hold a debate.  Let others have the freedom to set the rules for their own debates.

    New Hampshire reportadly had 20 to 30 names on the ballot for each party.  Having them all would better be called a circus than a debate.


    Let others (5.00 / 1) (#17)
    by jondee on Tue Jan 15, 2008 at 01:32:08 PM EST
    Said "others" being code for those who control most of the airwaves. What does that have to do with any meaningful definition of "freedom"?

    Quite ACCUSTOMED to fear -- of certain publicly expressed thoughts -- is more like it.


    rules (none / 0) (#13)
    by Natal on Tue Jan 15, 2008 at 12:52:23 PM EST
    They did set rules -- the first four candidates. When Richardson dropped out Kucinich moved into the fourth position. They then changed the rules and said only the first three. They in fact had invited him then uninvited him. A clear violation of the contractual arrangement previously made. The judge said if MSNBC had stipulated the first three at the beginning he would have no disagreement with it.

    When msnbc.... (none / 0) (#15)
    by kdog on Tue Jan 15, 2008 at 01:05:32 PM EST
    owns the airwaves they use to broadcast, or even all the cables...then they can set their own rules.

    If they wanna hold a private debate without using airwaves and cables that don't belong to them, then they can exclude the interesting candidates who actually have something to say.  Until then...


    One more thing (none / 0) (#12)
    by Abdul Abulbul Amir on Tue Jan 15, 2008 at 12:42:35 PM EST

    When the Congressional Black Caucus was going to hold a debate, it decided who to invite.

    Relevance? (none / 0) (#27)
    by manys on Tue Jan 15, 2008 at 04:13:10 PM EST
    The CBC doesn't nourish itself via the citizen-owned public airwaves.

    I hope he rules that (1.00 / 0) (#4)
    by jimakaPPJ on Tue Jan 15, 2008 at 07:09:01 AM EST
    Fred Thompson comes back as DA on L&O..

    Makes as much sense.

    Subtract the L (none / 0) (#18)
    by jondee on Tue Jan 15, 2008 at 01:33:56 PM EST
    and you've got what should Thompson's middle name.

    Dennis' week (none / 0) (#1)
    by Natal on Mon Jan 14, 2008 at 10:41:12 PM EST
    Dennis could also upset things in Michigan against Hillary if the progressives come together. No delegates but could create a splash. And Wednesday his recount request in NH is initiated. He's been busy unlike any other candidate.

    Kucinich matches (none / 0) (#2)
    by Bob In Pacifica on Mon Jan 14, 2008 at 10:46:36 PM EST
    me on the candidate calculator. Cheaper than match.com. But I'm leaning towards Edwards. Anyway, the more the merrier.

    Precedent? (none / 0) (#9)
    by Ben Masel on Tue Jan 15, 2008 at 10:54:58 AM EST

       Petitioner Arkansas Educational Television Commission (AETC), a state-owned public television broadcaster, sponsored a debate between the major party candidates for the 1992 election in Arkansas' Third Congressional District. When AETC denied the request of respondent Forbes, an independent candidate with little popular support, for permission to participate in the debate, Forbes filed this suit, claiming, inter alia , that he was entitled to participate under the First Amendment. The jury made express findings that Forbes' exclusion had not been influenced by political pressure or disagreement with his views. The District Court entered judgment for AETC. The Eighth Circuit reversed, holding that the debate was a public forum to which all ballot-qualified candidates had a presumptive right of access. Applying strict scrutiny, the court determined that AETC's assessment of Forbes' "political viability" was neither a compelling nor a narrowly tailored reason for excluding him.

        Held: AETC's exclusion of Forbes from the debate was consistent with the First Amendment.

    And this was for a Public broadcaster.

    For the ruling to stand, it would have to be based either on contract law, or, perhaps, reflecting the Pruneyard cases, on the Nevada Constitution.

    NBC's writ available (none / 0) (#14)
    by jonell on Tue Jan 15, 2008 at 01:02:18 PM EST
    The Nevada Supreme Court has posted a copy of NBC's Emergency Petition for a Writ of Prohibition.  In includes the pleadings in the district court and exhibits, including the correspondence in which Kucinch was invited to the debate.

    Seems to me... (none / 0) (#19)
    by MileHi Hawkeye on Tue Jan 15, 2008 at 01:53:55 PM EST
    ...that MSNBC is shooting themselves in the foot.  A lot more people would probably watch what is guaranteed to be a snooze-fest if they were assured to get at least a few shots of the very lovely (and smart) Mrs. Kucinich.

    IMHO, of course.

    If actions speak louder than words (3.00 / 1) (#22)
    by jondee on Tue Jan 15, 2008 at 01:58:52 PM EST
    then it's obvious that they have no problem with banal snooze fests and with half the country not voting at all.

    What's important is getting people in there who are likely to pass MSNBC friendly legislation.


    basic contract law (none / 0) (#20)
    by txpublicdefender on Tue Jan 15, 2008 at 01:54:44 PM EST
    I thought Kucinich's main claim was a basic contract claim.  MSNBC made the offer for him to debate, Kucinich accepted.  As long as there is some consideration in there, and I'm sure you could finagle something about Kucinich forgoing other activities to participate to count, then that is a valid contract.  So, he asked for specific performance of the contract--include him in the debate.  I don't know what you have to show for specific performance in Nevada, but usually it's just that it was reasonably contemplated by the original agreement, and that monetary damages after the fact cannot reasonably compensate for the harm done.

    I do believe there was a federal claim thrown in about the public airwaves being required to be in the public interest, but I think that argument is much weaker.

    It seems, from the little I've read, that the judge's decision was a contract one, which seems pretty reasonable to me.

    it would seem (none / 0) (#28)
    by cpinva on Tue Jan 15, 2008 at 04:50:20 PM EST
    that mr. kucinich would need to show that foregoing those "other activities" resulted in a financial loss to him. otherwise, i can see a plethora of suits (myself included) claiming that my foregoing going fishing, to be a timer at my son's swim meet, which i'm then told i'm no longer needed for, is an actionable claim.

    good luck with that. not sure inflation of ego counts as "consideration". but i could be wrong.

    don't misunderstand, i'm not condoning the action, just questioning the legal basis for the judge's decision.


    Glenzilla (none / 0) (#21)
    by horseloverfat on Tue Jan 15, 2008 at 01:58:19 PM EST
    Glenn Greenwald has a post on this subject.  Something about Kucinich having a contract and this being a contractual issue once Kucinich had already been invited.

    Oral argument at 1:30 (none / 0) (#25)
    by jonell on Tue Jan 15, 2008 at 02:56:14 PM EST
    The Nevada Supreme Court has scheduled oral argument on NBC's petition for 1:30 Pacific time.

    Obama would be smart (none / 0) (#26)
    by magster on Tue Jan 15, 2008 at 03:21:49 PM EST
    to chastise MSNBC on this and chastise Hillary on the at-large caucus and portray himself as the "the people's champ".