United States District Court, E.D. Kentucky, Central Division, Frankfort
LIBERTARIAN NATIONAL COMMITTEE, INC., THE LIBERTARIAN PARTY OF KENTUCKY and DAVID PATTERSON, Plaintiffs,
DR. TERRY HOLIDAY, ET AL., Defendants.
MEMORANDUM OPINION & ORDER
GREGORY FVAN TATENHOVE, District Judge.
On October 13, 2014, Kentucky Educational Television (KET) will host United States Senate candidates Mitch McConnell, a Republican, and Alison Lundergan Grimes, a Democrat, on Kentucky Tonight, a public affairs program hosted by Bill Goodman. This event has been long anticipated by political enthusiasts and the campaigns alike. Now, David Patterson, the Libertarian Candidate for U.S. Senate, seeks to require KET to include him. Patterson alleges that the Defendants' decision to exclude him violates both his constitutional rights to free speech and due process and asks this Court to enjoin KET from doing so. Id. For the reasons that follow, the constitution does not require that result.
After having reviewed all exhibits and filings, and heard testimony and argument at an October 9 hearing, the Court makes the following findings of fact. On January 22, 2014, Shae Hopkins, Executive Director of KET, sent an email to KET's legal counsel about the establishment of pre-selection criteria for use in determining which candidates would be invited to participate in Kentucky Tonight programming. [R. 19-1.] Hopkins explained that KET's purpose was "to follow the law, be fair to all concerned, protect and maintain KET's integrity and reputation for inclusion and fairness - and provide the best service to our viewers." [ Id. ] Later that month, Mike Brower, Senior Director of Production Operations for KET, emailed a draft version of such criteria to KET employees Bill Goodman, host of Kentucky Tonight, and Deidre Clark, the program's producer. [R. 19-4.] The draft criteria began, "KET decides who is invited to appear on its... programs based on good faith journalistic judgment and on what we believe will best serve, and interest, our viewers." [R. 19-4 at 3.] A few days later, Brower emailed an updated copy of the criteria to KET staff. In the text of his email, he explained:
We've tried to make this as broad as possible so we don't paint ourselves into a corner with language that ends up inadvertently disqualifying a marginal candidate who is also someone we want to include. Gatewood for example. So we didn't say you have to poll at a certain level or other qualifiers that would eliminate marginal but interesting candidates. Our goal here is to have a way to defend not including only the most extreme cases, like out of state crusaders, or wacky people who paid the $50 and got 2 names on a form to qualify as a candidate.
[R. 4-7 (emphasis added).] Brower then emailed KET's lawyer, seeking legal advice on how best to develop the above criteria. Brower explained that in 2012, there were "two out of state candidates who were not running serious campaigns but were rather using the process to air antiabortion ads." [R. 4-8.] KET did not invite those candidates to the forum and the candidates did not protest. [ Id. ] Brower expressed concern, that in the current election there was "at least one eccentric candidate on the ballet [ sic ] who we would prefer not to invite." [ Id. ] He noted that, "[t]o address this we are drafting pre-established objective criteria' and would like you to advise on the wording." Brower concluded, "[w]e've made an attempt to give ourselves an out but not to be so specific as to corner ourselves and inadvertently exclude a marginal but potentially viable candidate." [R. 4-8.]
On February 4, in the midst of the primary season and with objective criteria in place, candidates in both the Democratic and Republican primaries were invited to participate in Kentucky Tonight's April 21 and April 28 programs, respectively. [R. 4-10.] The invitation also noted that general election candidates would be invited as guests on October 13. [ Id. ]
In a March 5 email to Hopkins, Brower explained that the "2014 Election Candidate Invitation Criteria" were devised to satisfy Federal Election Commission (FEC) requirements while also "giving KET the ability to NOT invite candidates who have only managed to get their names on a ballet [ sic ] but do not truly have a legitimate campaign underway." [R. 19-6 at 2.] These criteria, titled "Candidate Invitation Criteria 2014 Primary and General Elections, " provided that a candidate would be invited to appear on "a KET public affairs program" only if they were a Kentucky resident and a legally qualified candidate under FCC guidelines and also satisfied one of four other conditions: (1) the candidate had made public position statements on political issues, (2) the candidate maintained an active website devoted to the campaign that addresses issues related to the race, (3) the candidate had accepted at least $10, 000 in contributions for the current election or (4) the candidate had received five percent or more of support for the current election in a professionally conducted and independent poll. [R. 19-6 at 3.] The criteria further provided that incumbents would be invited regardless of whether they satisfied the criteria. [ Id. ]
Shortly before the primary candidate televised programs, Patterson announced his candidacy for the U.S. Senate. [R. 4-12.] And just a few days before the first program, Goodman sent an email regarding write-in candidate Shawna Sterling's website to Kentucky Tonight producer, Deidre Clark. [R. 19-8.] Goodman wrote:
I'm sure you're [ sic ] seen Shawna Sterling's website...I just took a look this morning for the first time! Saving baby cows? Angels and music led her to the U-S Senate race? What are your thoughts about asking her issue oriented questions or to explain the abundance of You Tube videos on cows and angels and working for Obama in 2012? And, just to be sure, we will have a policeman nearby Monday night?
Even so, Sterling was one of the candidates present as part of the first Kentucky Tonight forum on April 21. [R. 27 at 116.]
With the primary elections behind them, KET decided to revisit its candidate invitation criteria and began the process of developing new criteria, again in consultation with legal counsel, over the coming month. In anticipation of the general election, on May 22, as promised, KET invited both McConnell and Grimes to appear on the October 13 Kentucky Tonight program. [R. 4-19.] Later in the day, Brower distributed the updated criteria to many of KET's staff and leadership, explaining that it was important to get the criteria "on record today since this will eliminate the write in and other candidate from the forum." [R. 4-24.] He continued, "[i]t was agreed by the group yesterday that we should do that." [ Id. ]
After the invitations went out, KET wrestled with the details of the general election forums. For example, Tim Bischoff, Senior Director of Marketing, inquired as to whether Patterson and Ed Marksbury, an Independent candidate, would be included in the October 13 program. [R. 4-25; R. 19-16.] Goodman responded, explaining that neither Patteron nor Marksbury had been invited to the October 13 program but that they could potentially appear on a separate program. [ Id. ] Brower similarly responded, stating that Patterson and Marksbury "did not meet our criteria for invited candidates for the U.S. Senate Race." [R. 19-17.]
Later, an email regarding plans for KET's Senate Race Coverage indicated that KET was "stiffening the criteria for invited guests for the general election programs (including KYTON and 1-2-1) to eliminate nonviable candidates and reduce the potential for an equal opportunity request." [R. 19-37 at 3.] And, KET staff also engaged in an email discussion about whether Robert Ransdell, a write-in candidate for the U.S. Senate, would be included in KET election programming. [R. 4-27.] KET staff referred to Ransdell as a "nut" ...