User profile: lichtman

Mr. McGaha has it exactly right on two fronts: First, the "harm" is indeed that the Nevada courts did not mention the Forbes decision. This dispute centers on whether a news outlet is free to decide what candidates can be invited to (and excluded from) a debate ... and sure enough, there is a US Supreme Court decision addressing THIS EXACT QUESTION. It's not an obscure decision. A judge simply has to find the main case and rely on it; that's the job. Failing to do so is an egregious professional error.

Moreover, it is not a defense to say that this was a contract case, or that it was decided under time pressure. The Nevada Supremes did do the requisite First Amendment analysis, which demonstrates that they were appropriately focused on the issue, and that they had the time and inclination to do their research. They relied on other cases (Nebraska Press Association, e.g.), but somehow contrived to miss the most important case in this area. If a lawyer misses the main case, they will catch hell from the court (and from their superiors at their firm). Mr. McGaha knew about the Forbes case; why didn't the courts live up to the high standard he set?

The second area Mr. McGaha has it right, if I'm reading his tone correctly (mea culpa if I am not), is that no real "harm" was done here. While the Nevada Supremes may have botched their research, they admirably arrived at the correct legal result. To that extent, this is much ado about nothing.

However, Mr. Eckhouse has been criticized in this space for pointing out the flaws in the resolution of this matter, and my comments are simply designed to defend him from the accusation that his work is "not well thought out." Mr. Eckhouse's observation that the Nevada courts did not distinguish themselves here is a valid point, and one that is indeed well thought out. The lower court got the matter utterly wrong, and even as the Supreme Court was getting the matter right, their legal research contained a basic error that most first-year law students would not have committed. Mr. Eckhouse has merely identified these facts. Perhaps more credit should be extended to the Nevada Supremes for getting the right result, but when Mr. Eckhouse is critical of the path they took to get there, he has identified an important dimension of this story, and he does not at all deserve the criticism to which he has been subjected here.

Finally, speaking as a former attorney (one who fled to the ivory tower, where the rent's much cheaper), I should caution Mr. McGaha about one thing. Although I have tremendous respect for members of the bar, my experience in both careers has demonstrated that the gap in intelligence between lawyers and the 20-year-olds that I teach is not as pronounced as Mr. McGaha thinks!

Cheers, SBL

As the constitutional expert consulted by Mr. Eckhouse, let me state that his research was indeed conscientious. It was certainly more impressive than the research done by the judges.

My first question was whether Judge Thompson had ever read the case referenced above by Mr. McGaha. Arkansas Educational Television Commission v. Forbes, 523 US 666 (1997), is a Supreme Court case that is DIRECTLY on point. The Court, by 6-3 (Kennedy) stated that the decision of who to invite to participate in a candidates' debate is "an exercise of journalistic discretion". As long as a decision to exclude is not based on a media outlet's disagreement with the candidate's message, then the First Amendment mandates that the media gets to exercise discretion, and it is not for a judge - a governmental official - to countermand the editorial judgment of the press.

Under the criteria that were laid out in Forbes, the decision to exclude Kucinich (and Mike Gravel) was completely reasonable. His support barely registered above the margin for error, he was wildly underfunded compared to other candidates, and major polling outlets were omitting him from their reports.

Now, if you think that these criteria are a bad public policy, fine. It can be argued that these criteria prevent alternative views from being heard, or that they overstress the likelihood of electoral success while understressing having public debate be influenced.

But that's not the issue Mr. Eckhouse raises. His contention is that Judge Thompson did not do his homework in issuing his ruling, and that contention is correct. Even a cursory amount of legal research - one small query on LEXIS - would have revealed the Forbes case, which gives clear guidance on how this dispute should have been resolved. Either Judge Thompson failed to do this research ... or (more worryingly), he did do it, discovered that the law mandated a result he personally disliked, and simply ignored the law.

In fact, far from being "naive and superficial," I would suggest that Mr. Eckhouse's contention about the sloppy work of the Nevada courts is more spot-on than people realize ... because in their order invalidating Judge Thompson's ruling, the Nevada Supreme Court also failed to mention the Forbes case. For the Nevada courts - at all levels - to completely miss the one Supreme Court case that is directly relevant to a given legal question is totally mindboggling. It is the equivalent of deciding an abortion case and not knowing about Roe v. Wade.

Again, you might think the legal precedents here are misguided. With all due respect to Mr. McGaha, I'm not sure I see the conflicts in the Forbes case and its progeny that he sees, but we'll agree to disagree on that; it's certainly an open question. What it not in question is that there was a Supreme Court decision that should have guided the result in this case, and the Nevada courts either disregarded it or were negligently unaware of its existence.