Summary
upholding the "[e]xclusion of a candidate because her candidacy has generated no appreciable voter interest, according to objective criteria," namely at least 15% standing in the relevant polls
Summary of this case from Ayyadurai v. Univ. of Mass.Opinion
Civil Action No. 02-12603-PBS
October 28, 2002
ORDER
Plaintiff Barbara Johnson, an independent candidate for Governor, seeks a temporary restraining order against defendant Suffolk University to restrain it from hosting the final Massachusetts Gubernatorial Debate scheduled for Tuesday evening, October 29, 2002 unless she is allowed to participate. The Court DENIES the motion for a temporary restraining order on the ground that plaintiff has not demonstrated a likelihood of success on the merits of her claim under the Equal Protection Clause of the Fourteenth Amendment. The Court ALLOWS the motion of the Boston Herald to intervene, which is unopposed. In essence, the ruling is predicated on the following conclusions of law:
1. The Boston Herald, the intervenor, is the sole sponsor of the debate, and is responsible for having made all decisions as to participants. (Gully Aff. ¶ 2.) The Boston Herald, a newspaper, has the First Amendment right to exclude Ms. Johnson from the debate. See Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 673 (1998); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 568 (1995); The Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974). Moreover, the Boston Herald is not a state actor, and therefore is not subject to Fourteenth Amendment strictures. See Logiodice v. Trs. of Maine Cent. Inst., 296 F.3d 22, 26 (1st Cir. 2002) (setting forth the doctrines under which a nominally private entity may be considered a state actor and finding no state action where half of private high school's budget was derived from public funds).
2. Suffolk's only connection with the debate is providing the venue. (Gully Aff. ¶ 2; Samsone Aff.) See DeBauche v. Trani, 191 F.3d 499, 508 (4th Cir. 1999) (holding that state university which provided a place for a debate on campus was not liable for the decision of a radio talk show host to exclude a minor party gubernatorial candidate). Even if Suffolk had a more substantial role, there is not a close enough nexus between the state and the challenged conduct — permitting the Herald to use its property for a gubernatorial debate — to establish the state action required to trigger the Fourteenth Amendment. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (holding that there is no state action unless "there is such a close nexus between the state and the challenged action that seemingly private behavior may fairly be treated as that of the state itself"); Rendell-Baker v. Kohn, 457 U.S. 830, 831-43 (1982) (holding that school's state-regulated use of public funds for students with disabilities does not make the school's decision to discharge a teacher, which is not regulated, an act of the state); Logiodice, 296 F.3d at 26. There is no evidence that any participation by Shannon O'Brien in her capacity as a candidate is sufficient to confer state action status on either the Boston Herald or Suffolk even though she is currently the state treasurer.
3. Finally, the Boston Herald had a rational basis for the neutral selection criteria it employed to choose candidates for the debate, and therefore plaintiff could not show an equal protection violation even if the Fourteenth Amendment applied. Andrew Gully, the Managing Editor of the Boston Herald, submitted an affidavit stating:
The determination as to which candidates to invite to the debate was made by a committee of editorial and management personnel at the Boston Herald. The criteria that the committee used for selection of candidates were modeled after the criteria used by the Commission on Presidential Debates, the most significant of which is achievement of at least a 15% standing in the relevant polls. The plaintiff's standing in the relevant polls has been no greater than the low single digits, and therefore has been well outside the relevant criteria. The only candidates who met those criteria were Mitt Romney and Shannon O'Brien; consequently those two candidates were the only ones invited to participate.
(Gully Aff. ¶ 4.) Recent polls cited by plaintiff demonstrate she has 1% of the vote. Exclusion of a candidate because her candidacy has generated no appreciable voter interest, according to objective criteria, is a "reasonable, viewpoint-neutral exercise of journalist discretion." Arkansas Educ. Television Comm'n, 523 U.S. at 682-83 (holding in the context of rejecting a First Amendment challenge to a decision by a state-owned television broadcaster to exclude an independent political candidate that "the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property.")
ORDER
Plaintiff's motion for a temporary restraining order is DENIED. The Boston Herald's motion to intervene is ALLOWED. Unless any party objects, this case will be dismissed as moot after the election on November 5, 2002.